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Author: Gillian Flynn

Posted on August 1, 1999June 29, 2023

Stop Toxic Managers Before They Stop You!

You’ve been there. We’ve all been there. The manager who bullies, threatens, yells. The manager whose mood swings determine the climate of the office on any given workday. Who forces employees to whisper in sympathy in cubicles and hallways. The backbiting, belittling boss from hell. Call it what you want—poor interpersonal skills, unfortunate office practices—but some people, by sheer, shameful force of their personalities, make working for them rotten. We call them toxic managers. Their results may look fine on paper, but the fact is, all is not well if you have one loose in your workforce: it’s unhealthy, unproductive and will eventually undo HR’s efforts to create a healthy, happy and progressive workplace.

Why are some managers toxic—and why should HR care?
The looming question surrounding toxic managers is: Why are there so many? In these days of enlightened management, with so much emphasis on communication, interaction and valuing people, why does this breed still exist?

In large part, it’s because our bottom lines allow it. Companies often don’t have a means of rating managers outside of productivity. If a supervisor is churning out the widgets, the questions are kept to a minimum.

“The biggest single reason is because it’s tolerated,” says Lynne McClure, a Mesa, Arizona-based expert on managing high-risk behaviors and author of Risky Business (Haworth Press, 1996), a book on workplace-violence prevention. She believes if a company has toxic managers, it’s because the culture enables it—knowingly, or unknowingly through plain old apathy (see sidebar, “Eight Toxic-Manager Behaviors—and the Cultures That Nurture Them”).

Certain work situations foster toxic managers. When a company has gone through downsizings, pay freezes or other financial crises, negative management tends to thrive. The emphasis is often on get-tough turnaround, and as such higher-ups often turn a blind eye to crude management as long as the numbers are good. Similarly, employees are less likely to speak up about their rotten bosses—they don’t want to sound like whiners or risk their jobs.

Of course, some people are just going to be miserable to work for no matter what. Yet they end up as managers because they’re good employees whose companies lack another way of rewarding them. “There are some people who simply should not be promoted to management,” says Deb Haggerty, head of Orlando, Florida-based Positive Connections, a consulting firm that teaches employees how to deal with personality differences. “Just because someone is a brilliant engineer doesn’t mean they’ll be a brilliant manager. Yet that’s too often how a company demonstrates status.”

Some people are miserable to work for no matter what. Yet they end up as managers because they’re good employees whose companies lack another way of rewarding them.

So a person is difficult to work for—is that really an HR concern? Of course it is, and for several reasons. At the very least, there’s the morale issue. Bad managers tend to infect their departments with bad attitudes. It’s like a disease: They spread despair, anger and depression, which show up in lackluster work, absenteeism and turnover. Workplace guru Tom Bay has written an entire book about how ideas and moods can aid or sabotage the workplace, Change Your Attitude: Creating Success One Thought at a Time (Career Press, 1998). He believes it’s toxic managers—and the cultures that enable them—that are at the core of today’s job-hopping phenomenon. “Turnover is the highest it’s ever been,” he says. “Employees don’t feel appreciated.”

Obviously, turnover, absenteeism and uninspired work cost a company money, even if a department’s output remains level. But there are other dangers of toxic management. Intense bullying over a period of time can cause emotional damage to employees. Says Haggerty: “In addition to being problems in themselves, toxic behaviors create a hostile work environment and can easily escalate to real violence, harassment and intimidation—all of which end up landing a company in court.” And you can imagine how sympathetic a jury would be toward a company that allowed its employees to be terrorized in order to keep a tidy bottom line.

So how does HR address the situation? Help those that can be helped, and excise those who can’t—or won’t. But first comes what’s often the tricky part: finding them.

Every company has them: Identify the bad apples.
Toxic managers don’t always stand atop your building, wearing a black hat and holding a placard telling you they’re the bad guys. HR has to do a little detective work, particularly when employees are often loathe to complain about personality differences, no matter how justified. Certainly, there are some warning signs. Check for instance, turnover in every manager’s department—are employees transferring or quitting a particular area? If so, that’s cause to ask further questions.

“Being communicative and being observant is vital,” says Bay, also a former HR director. “Don’t wait for massive turnover, that’s like realizing you’ve had a heart attack after you’ve died.” At the first increased trickle of turnover or transfers, Bay says, start asking employees what’s happening.

Have discussions both individually for those who need privacy to speak their minds, and in groups to appeal to employees who like peer support. Listen for key words or notions; don’t expect employees to explicitly say they hate their boss. Do ask follow-up questions. For instance, one common flag is for an employee to say their job is fine, but that they’re under a lot of strain or pressure. Ask them why—it’s often an interpersonal problem, and a good way for you to get more information.

At Wescast Industries Inc. in Brantford, Ontario, Wayne Phibbs, vice president of HR, uses a monthly “report card” meeting for employees, designed to measure their job satisfaction. “Picture a union person frustrated with his boss—he’s not listening, he’s not helping,” says Phibbs. “Every month there’s this opportunity to force your leader to be honest. He can’t go in there and buffalo people; it won’t work.” Phibbs thinks such open talks and constant forums contribute to his workforce’s high satisfaction level—even among the Canadian Auto Workers Union, a group notorious for its scrappy members.

Of course, not all employees are going to be publicly forthcoming. So keep the lines of communication open in as many venues as possible. “Exit interviews are helpful, but they’re too late,” says McClure. “I wouldn’t stop doing them, but you need to do other things.”

One common flag is for an employee to say their job is fine, but that they’re under a lot of strain or pressure. Ask them why—it’s often an interpersonal problem.

Anonymous hotlines are helpful, and can be set up as cheaply as dedicating one phone line with voice-mail, or more elaborately, through an outside agency that refers issues to HR or an EAP, depending on which is appropriate. “HR has to be careful not to get into counseling issues, and that’s hard because we know how fuzzy that line is,” admits McClure. HR can also encourage employees to send e-mail. Employees need not use their work account; many Internet sites offer free e-mail with anonymous user names– hotmail.com, for instance).

Using multi-source performance reviews, in which employees can give feedback on their bosses anonymously, is also enormously helpful. At Spring Engineering Corp. in Livonia, Michigan, Tim Tindall, president in charge of HR issues, instituted a 360-degree survey based around “servant leadership,” the theory that the best managers are those who serve their employees. In that mode, the questionnaire covered qualities like listening, empathy, awareness and healing. “The culture in this area [of Michigan] is somewhat adversarial between labor and management. It’s a long tradition, and one that’s hard to break, so this helped us get at some issues.” Tindall included himself in the reviews, which were discussed openly, and used to plot next steps.

One word of warning about multi-source reviews: These don’t need to wait for a manager’s yearly review, but they do need to be given to all managers in a department. It’s key, says Haggerty, not to target one particular supervisor, even if turnover and comments have identified that person as problematic.

Finally, talk to your supervisors, says Bay. When you ask a manager how things are going in his or her department, and you hear a lot of “I” rather than “we,” or a lot of blame being dispensed, that can be a flag. So can constant griping about employees in general. Finally, keep your ear to the ground, even if a manager doesn’t strike you as toxic. Says Sharon Keys Seal, a Baltimore job coach: “They’re not going to treat you the way they treat their workers.”

Put your managers into detox.
So now you know who—and what—you’re dealing with. What do you do next? First comes the confrontation: Sit down with this person, and tell him or her about the problem. Be as specific as you can. Don’t couch it in vague terms, like saying the manager has “interpersonal issues.” If the manager is perceived as a bully, say that. If she tends to explode at employees, tell her that. Then explain it must be stopped, and why. Don’t come down too hard: This may be the person’s first whiff of a problem. However, do be firm, and tell the manager that future performance will be noted.

Also set a time period for improvement. “Addressing this during a goal-setting session might be good,” advises Haggerty. “It really has to be done in a positive fashion, because those kinds of individuals tend to take criticism and harbor it and nurture it.”

After the intervention comes training. In many cases, the manager simply doesn’t have the correct tools, particularly if the person’s background is field-specific rather than managerial. “You have to give them alternatives for their behavior,” says McClure. “Say not only ‘You can’t do this,’ but ‘You have to do this.’” If that means they need to go to seminars on employee relations, that’s what they need to do. If the person is a poor manager simply because he’s in over his head, give him some educational opportunities. Collaborate with the supervisor—ask her what she thinks is the problem and what might help. There are seminars and classes for everything from anger management to accounting. Also offer EAP counseling—sometimes a person’s main issues are emotional, alcohol or drug-related, and a good therapist can help.

If, after the intervention and follow-up period, the behavior hasn’t changed, HR must decide what to do. If the person has skills useful to the company and is a good worker, you may consider transferring him out of a managerial position but keeping him at the company. Some people just don’t work well with others, but may blossom when working in a more narrow sphere of interaction.

If that’s not the case—if you actually need to terminate the manager—this can be done, carefully. It’s iffy grounds to fire someone strictly for personality issues. You need to define those issues as work-related performance problems, says Harold M. Brody, chair of the Los Angeles labor and employment practice of Proskauer Rose LLP. That means you don’t just say a person is a bully, but that the person’s bullying management techniques thwart productivity in the department. Once it’s defined in this manner, you can discharge the person the way you would for any other performance problem. Keep a record of the incidents, document that you’ve given the employee time for change, and make the termination. This is actually one case in which, if it should reach a jury, the employer has an advantage. “You get this rare opportunity, if you have the right record, to show you had the guts to go to a manager who’s producing the widgets but driving everyone crazy, and saying, ‘You can’t do that, and if you do, you’re going to lose your job,’” says Brody.

Prevent future problems.
Once you’ve addressed your current toxic managers, you have to make sure more don’t sprout up. To begin with, make sure job descriptions include treating employees in a dignified and appropriate manner. Include behaviors that won’t be tolerated, and hold them accountable for turnover. This not only makes the company’s stance very clear, but it emphasizes the importance of treating people well. “Behavior has to become part of the job description,” says McClure. “That way you can no longer say that manager X is a great manager because they really produce, but they’re terrible with how they treat their people. That way, manager X can no longer by definition be called a great manager.”

Build in pay increases or title changes to reward good work without forcing people to assume positions they’re not suited for or wouldn’t enjoy.

Once the job description includes behavior, HR can effectively reward or discipline managers through performance reviews. “Tell them they’re going to be evaluated, compensated and possibly disciplined based on their ability to effectively meet HR objectives—relating to employees and managing them in positive ways,” says Brody. Although Phibbs of Wescast says he uses performance ratings more as a discussion tool than as a punitive pay measurement, if a manager gets poor reviews and doesn’t improve, he’d take the next step. “If someone kept messing up, we wouldn’t give them an increase.” Adds McClure: “Make it a pocketbook issue; that gets their attention.”

Finally, make sure management isn’t the only way up to advance in your company. Build in pay increases or title changes to reward good work without forcing people to assume positions they’re not suited for and won’t enjoy.

You’ve been there. We’ve all been there. But if you’re in HR, you have the power to help toxic managers, their employees — and ultimately, your company.

Workforce, August 1999, Vol. 78, No. 8, pp. 44-46.

 

Posted on July 1, 1999July 10, 2018

How to Prescribe Drug Testing

Few things are more potentially devastating to a workplace than an employee with a drug or alcohol problem—and few things are more difficult to prove. With the heightened awareness of privacy issues, instituting a drug-testing policy can land a company on shaky legal ground. Yet such a policy can be useful. Many experts consider the decrease in positive employment-related drug test results as a sign that employees take testing seriously. If your company does drug testing, or wants to implement a program, Nancy Bertrando, chair of the employment law department for Greenberg Glusker Fields Claman & Machtinger LLP in Los Angeles, offers some rules.


How common is drug use in the workplace?
SmithKline Beecham Corp., one of the primary testing agencies based in Philadelphia, has an interesting study. In 1987, its statistical information showed that in employment-related testing, 18.1 percent of those tested showed positive drug use. In 1997, only 5 percent of approximately 5 million employment-related tests came back positive. I think, in part, that’s a sign that drug-testing programs are working.


Almost 98 percent of Fortune 200 companies have drug-testing policies. As more employers implement drug-testing policies, it seems to have an effect on drug use in the workplace. As far as the drugs of choice in these tests, according to SmithKline, 60 percent of positive tests are for marijuana, 16 percent of positive tests are for cocaine, and opiates make up 9 to 10 percent.


How difficult is it to conduct legally defensible drug testing?
A lot of it depends on the state. In California, for example, there’s tension between privacy rights of employees and rights of employers to test. The California state constitution contains an individual right to privacy which has been applied fairly rigorously to drug testing, so it’s hard to implement random testing in California. Unless it’s a safety position or there are some real signs that drug use is going on, employers in that state don’t have the right to test current employees. Random testing is a risk in many states [for similar reasons]. Even if a company already has a drug-testing policy, HR should look at the state law—especially if it’s an employer that has multiple state offices. Make sure the state supports random testing. And be cognizant of state laws concerning privacy.


What does a good drug policy have?
At a minimum, a policy should prohibit the use, possession, sale or transfer of illegal drugs in the workplace. Most employers have that. It doesn’t say drug testing may be implemented, but it says drugs and alcohol won’t be permitted and no one is allowed to work under the influence. More detailed policies are going to prohibit the use, possession, sale or transfer of illegal drugs on or off company time. That kind of policy brings privacy issues into play.


In certain jurisdictions, you have to be very careful of a policy that’s going to regulate your employees’ time away from the company. The conflict is privacy—regulating off-duty hours that don’t affect the workplace. There’s going to be a conflict created by that. Somebody terminated because of off-premises drug use that doesn’t affect the workplace may well have a claim for invasion of privacy. California’s privacy consideration is unique in that it’s part of the constitution, but even if other states don’t have constitutional privacy rights, they will have common-law developments that deal with the same issues.


How do you decide which side wins in drug testing vs. privacy?
In any of these balancing acts, you’ll look at workplace safety vs. employee privacy, and if you have safety or security issues, you’ll have much more latitude implementing drug testing with those types of employees—a forklift driver versus an accountant, for example. Also, prohibiting work under the influence of drugs or alcohol, even if the employee didn’t use it on company property, is a valuable and enforceable policy in any jurisdiction. But with those policies, employers must be cognizant of their obligations under the Americans with Disabilities Act (ADA), which, although it doesn’t protect employees from use of illegal drugs, it does protect them from discrimination once they’ve been rehabilitated.


Is an employee protected by the ADA if he or she hasn’t been rehabilitated?
The ADA will only protect them in instances in which they’ve been rehabilitated. The ADA has specific qualifiers that current users of drugs aren’t protected, but former users of drugs—individuals participating in or completing drug programs—are a different story.


Let’s talk about different types of drug testing policies, starting with pre-employment. Many employers have drug testing as a condition of employment. Done properly, that type of testing will be allowed. So a lot of employment applications say that hiring will be effective upon completion of a drug test. If you’re going to do pre-employment testing, employers want to be sure prospective employees have been given notice of this, that all applicants are treated similarly, and that testing is conducted by a reputable lab that respects each individual’s rights of privacy. The applicant should have the opportunity to explain positive test results. Generally, these tests will be upheld if they’re done right.


What about random drug testing?
In safety-sensitive environments, random drug testing will be upheld. Random drug testing for companies that aren’t safety-sensitive, like accounting, is going to be much more difficult because there’s the argument that the employer has violated the right to privacy. It’s the biggest area of vulnerability to employers. If your industry is covered by federal regulations that provide for drug testing, or if an employee is in a sensitive position or in a position in which use could result in the employee’s death or death of others, random testing will probably be OK. But this is a risky area for employers.


What about testing for “reasonable suspicion?”
When a supervisor determines an employee is acting improperly and elects to implement drug testing, that’s liable to be challenged based on privacy. According to SmithKline, last year, 73 percent of employees sent to them for “reasonable-suspicion” testing were clean. All those employees have cases for invasion of privacy, infliction of emotional distress and so on.


It’s particularly important in reasonable-suspicion testing to make sure managers are well trained to understand signs of potential drug abuse: bloodshot eyes, frequent sniffling, tremors, sunglasses worn indoors, profuse perspiration, appearing confused, refusing to talk, talking too loudly, mood swings, lack of coordination, aggressive or violent behavior, frequent unreported absences, unexplained disappearances during work time, difficulty remembering tasks and lapses in concentration. But managers need to be trained to look for all these signs, things that taken together would give reasonable suspicion of drug use. The more objective information you have to support a drug test, the better off you’ll be in defending a challenge to it. Also, always put employees on notice—don’t just tell them one day that they seem like they’re on drugs. They have to be tested.


What if a drug test shows up positive for prescribed legal drugs, but drugs that can affect performance, like sedatives?
Drugs for depression or other mental conditions get into some more of the ADA issues. Employers can’t discriminate against an employee for taking a medically prescribed drug for a condition. And once the employer has knowledge of that condition, the employer has to worry about potentially violating the ADA if the company takes action. Mental illnesses like depression are covered under the ADA. Employers need to be cognizant of their obligations under the ADA. So only certain banned substances should be looked at.


How do new state laws that allow marijuana use for certain conditions fit in here?
For those laws in California and Arizona [that support] medical-need marijuana use, the ADA comes into play. If the person is in a safety-sensitive position and marijuana use could hurt the employee or others, there’s no obligation to reasonably accommodate.


For employers currently implementing a policy, how much warning should they give employees?
If the testing isn’t based on a particular incident, they can implement today and start testing within a month or two. If it’s a particular individual you want to test, first objectively document the information that supports testing. Make sure the proper homework is done. Then send the employee to a reputable lab—hopefully with he or she having been on warning already. Also, don’t tell anyone that doesn’t have to know about the employee being tested.


And if the results are positive?
The employee should have the ability to explain any positive results. For current drug use, the ADA isn’t going to prohibit you from terminating somebody if you feel that it’s warranted under the circumstances. Some states require employers to accommodate an employee’s request for unpaid time off for rehab. If an employee requests time off, the best thing is to work with that employee. If the employee isn’t willing to face the issue, then you may have no option but to terminate. But from various perspectives, it may be in everyone’s best interest to allow an employee time for rehabilitation because if a good employee is saved, everyone benefits.


The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or legal opinion.


Workforce, January 1999, Vol. 78, No. 1, pp. 107-109.


Posted on June 1, 1999July 10, 2018

Attract Competitors’ Employees But Keep Your Own

You can try recruiting. You can try retaining. But in this tight labor market, human resources professionals may try a third R—raiding.

Your company may already practice occasional corporate raiding, or it may be something you’re considering. But here’s another thing you should consider: If you’re eyeing your competitors’ people, tread carefully.

Although you may think you’re playing a fair game, your competitors—and the law—may not agree. And then you may face a costly legal battle, or be prohibited from hiring those people altogether. John Siegal, a member of the noncompete and trade-secrets practice group at Proskauer Rose LLP in New York City, offers the following advice to wanna-be raiders.

What is the conflict in a corporate-raiding lawsuit?
These lawsuits are disputes over attempts to hire entire departments, or to quickly create new capabilities through large-scale hiring binges. These are binges in which the target employer seeks court orders preventing further raiding—even in the absence of noncompete contracts with employees.

Describe a general outline of a corporate-raiding lawsuit.
The company that’s losing people claims that the hiring company is interfering with its employment relations, misappropriating its trade secrets, and/or unfairly competing. It can seek a temporary restraining order or preliminary injunction.

The outcome of the case is likely to depend on a lot of things, including the departing employees’ knowledge of confidential, proprietary information; the safeguards the prior employer has taken to protect its confidential information; the caution of the hiring company to avoid misusing trade secrets the new employee may have; and the evidence, if any, that the new employer acted with bad intent or predatory motives.

So the suits aren’t necessarily about the employees, but about what employees know?
At least from a legal standpoint, employee-raiding cases are often less about people than about confidential, proprietary information and, in some states, customer relationships—how well they’re protected, how vital they are and how much access the transferring employee has. In this context, the law reflects economics: If know-how and know-who create value, then the law protects employees from corporate raiders because they’re valued by the company being raided.

Then how can HR tell whether an employee is off-limits legally?
Whether the hiring will be enjoined often turns on the legal definition of a trade secret. The law defines a protected trade secret as “any formula, pattern, device or compilation of information which is used in one’s business, and which gives an opportunity to obtain an advantage over competitors who do not know or use it.” If that sounds broad, it should—trade-secret law is not just limited to technical formulas and scientific information.

What kind of information does the trade-secret law include?
While manufacturing processes, like a food company’s “secret recipe,” are often found to be trade secrets, so too is a wide array of commonplace business information that employees at all levels routinely encounter. For example, courts have found that revenue projections, plans for future projects, pricing and product strategies, databases, customer lists, contact information and sales reports can all qualify for trade-secret protection.

How can HR tell if the information possessed by potential employees is the sort of trade secret that can cause a court to enjoin the hiring?
The courts have identified six highly fact-intensive factors for evaluating this decision:

  • The extent to which the information is known outside of the business
  • The extent to which the information is known by employees and others that are involved in the business
  • The extent of measures that were taken by the business to guard the secrecy of the information
  • The value of the information to the business and its competitors
  • The amount of effort or money expended by the business in developing the information
  • The ease or difficulty with which the information could be properly acquired or duplicated by others.

These [qualities] may sound complicated, but it boils down to a couple of questions that are simple to ask, but not so simple to answer: Has your competition done an effective job protecting its information? And could you get the information from sources other than your competitor’s former employees? Using these tests, a great deal of relatively routine corporate information can qualify as a trade secret.

What are other guidelines for hiring from competitors?
Consider these cardinal rules: Act to benefit yourself, not to hurt the competitor, and watch out for what is in writing.

Every experienced litigator can tell tales of uncovering documents you wouldn’t believe people actually created or kept that have blown cases wide open. In one employee-raiding suit, someone at [the raiding company] wrote and distributed a report about an internal presentation of an “action plan” that included as its first item: BE PREDATORY ABOUT PEOPLE in capital letters. The memo actually stated: “Remember, the taking of their people … makes it even harder on them to do business.”

Needless to say, the memo was attached to [the plaintiff’s] complaint as Exhibit A. It crippled the fair-competition defense from the outset and the litigation was quickly settled.

Can the employee bring non-proprietary documents from the former employer?
Urge them to leave the competitor’s documents behind. Any documents that your new employees bring with them from their old jobs will create real problems in litigation. Where there is smoke, there’s often fire, and the existence of any purloined documents—no matter how innocuous—can burn you in court.

Departing employees are not supposed to take company documents with them, and people who do are suspect. The litigation will begin with your competitor requesting documents, so make sure your new hires don’t take any—including their Rolodexes —and eliminate this issue at the outset.

How can a company prove it’s pursuing the employees, rather than the trade secrets those employees know?
Make sure new employees don’t bring any documents with them. Make sure any documents you create in the course of hiring people from a competitor are completely accurate—reflecting your company’s desire to hire the people for their general knowledge and experience, not any specific, proprietary information to which they may have had access when employed by your competitor.

Ask yourself these simple, fundamental questions: Are these people I’d want to have around for the long haul, even if they don’t know any of my competitor’s secrets or don’t have my competitor’s customer list? Can I honestly tell them I don’t want them to use any confidential, proprietary data, documents or customer lists they took from my competitor? Can they do the job for me without misusing the competitor’s trade secrets and customer lists? If you’re not absolutely certain that the answers to these questions are “yes,” you may be in for trouble.

How careful do companies need to be?
Courts will crack down on employee raiding to prevent the misuse of trade secrets, but they are loathe to stop people from taking the job of their choice, especially where there is no contractual noncompete provision. But it still pays to be careful about how you approach a competitor’s employees. If the evidence tends to show that you have predatory intent, it can tilt the case against you.

So courts could prohibit employees from working for a particular company if its actions were ruled predatory?
The 13th Amendment outlawed slavery in this country more than 130 years ago, and courts almost never order that people must remain in employment that they wish to leave, but courts frequently do enjoin an employee from going to work for a new employer.

What are the chances of a corporate raider avoiding that kind of situation?
If the new employees sought you out—or even if you identified the group of new hires as part of a broad-based search in which you had interviewed and considered prospects from numerous sources, your chances of prevailing in litigation will be substantially greater.

On the other hand, if the evidence shows that you specifically sought out particular employees in a particular competitor’s operation, it will lend credence to the competitor’s claim of “bad intent”—that you were seeking its trade secrets, not its bodies, or that you were seeking to hurt it rather than trying to help yourself.

What can an employer do to protect itself?
Take several practical steps to avoid liability if you are sued: Include a representation in new employees’ offer letters or employment agreements that they will not use trade secrets from their former employers. Make sure the new employees’ job descriptions differ from their prior posts and leave legitimate room for the employees to operate without using trade secrets. Instruct the new employees’ colleagues in writing as to subject matters that should not be discussed with them. Most of all, make sure in job interviews and initial meetings on the job that the new employees are honestly committed to fair competition, not to misusing trade secrets and customer lists from their prior jobs.

Employee-raiding litigation is a problem that good management and planning can often avoid. However, even if litigation does occur, the same steps you take to try to avoid litigation will help prepare your defense by making a solid record to use in court.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or legal opinion.

Workforce, December 1998, Vol. 77, No. 12, pp.121-123.

Posted on May 19, 1999July 10, 2018

Raid the Competition for Workers, Not Their Secrets

You can try recruiting. You can try retaining. But in this tight labor market, human resources professionals may try a third R — raiding.

Your company may already practice occasional corporate raiding, or it may be something you’re considering. But here’s another thing you should consider: If you’re eyeing your competitors’ people, tread carefully.

Although you may think you’re playing a fair game, your competitors — and the law — may not agree. And then you may face a costly legal battle, or be prohibited from hiring those people altogether. John Siegal, a member of the non-compete and trade-secrets practice group at Proskauer Rose LLP in New York City, offers the following advice to wanna-be raiders.

What is the conflict in a corporate-raiding lawsuit?
These lawsuits are disputes over attempts to hire entire departments, or to quickly create new capabilities through large-scale hiring binges. These are binges in which the target employer seeks court orders preventing further raiding — even in the absence of non-compete contracts with employees.

Employee-raiding cases are less about people than about proprietary information and customer relationships.

Describe a general outline of a corporate-raiding lawsuit.
The company that’s losing people claims that the hiring company is interfering with its employment relations, misappropriating its trade secrets, and/or unfairly competing. It can seek a temporary restraining order or preliminary injunction.

The outcome of the case is likely to depend on a lot of things, including the departing employees’ knowledge of confidential, proprietary information; the safeguards the prior employer has taken to protect its confidential information; the caution of the hiring company to avoid misusing trade secrets the new employee may have; and the evidence, if any, that the new employer acted with bad intent or predatory motives.

So the suits aren’t necessarily about the employees, but about what employees know?
At least from a legal standpoint, employee-raiding cases are often less about people than about confidential, proprietary information and, in some states, customer relationships — how well they’re protected, how vital they are and how much access the transferring employee has. In this context, the law reflects economics: If know-how and know-who create value, then the law protects employees from corporate raiders because they’re valued by the company being raided.

Then how can HR tell whether an employee is off-limits legally?
Whether the hiring will be enjoined often turns on the legal definition of a trade secret. The law defines a protected trade secret as “any formula, pattern, device or compilation of information which is used in one’s business, and which gives an opportunity to obtain an advantage over competitors who do not know or use it.” If that sounds broad, it should — trade-secret law is not just limited to technical formulas and scientific information.

What kind of information does the trade-secret law include?
While manufacturing processes, like a food company’s “secret recipe,” are often found to be trade secrets, so too is a wide array of commonplace business information that employees at all levels routinely encounter. For example, courts have found that revenue projections, plans for future projects, pricing and product strategies, databases, customer lists, contact information and sales reports can all qualify for trade-secret protection.

How can HR tell if the information possessed by potential employees is the sort of trade secret that can cause a court to enjoin the hiring?
The courts have identified six highly fact-intensive factors for evaluating this decision:

  • The extent to which the information is known outside of the business
  • The extent to which the information is known by employees and others that are involved in the business
  • The extent of measures that were taken by the business to guard the secrecy of the information
  • The value of the information to the business and its competitors
  • The amount of effort or money expended by the business in developing the information
  • The ease or difficulty with which the information could be properly acquired or duplicated by others.
These [qualities] may sound complicated, but it boils down to a couple of questions that are simple to ask, but not so simple to answer: Has your competition done an effective job protecting its information? And could you get the information from sources other than your competitor’s former employees? Using these tests, a great deal of relatively routine corporate information can qualify as a trade secret.

What are other guidelines for hiring from competitors?
Consider these cardinal rules: Act to benefit yourself, not to hurt the competitor, and watch out for what is in writing.

Every experienced litigator can tell tales of uncovering documents you wouldn’t believe people actually created or kept that have blown cases wide open. In one employee-raiding suit, someone at [the raiding company] wrote and distributed a report about an internal presentation of an “action plan” that included as its first item: BE PREDATORY ABOUT PEOPLE in capital letters. The memo actually stated: “Remember, the taking of their people … makes it even harder on them to do business.”

Needless to say, the memo was attached to [the plaintiff’s] complaint as Exhibit A. It crippled the fair-competition defense from the outset and the litigation was quickly settled.

Can the employee bring non-proprietary documents from the former employer?
Urge them to leave the competitor’s documents behind. Any documents that your new employees bring with them from their old jobs will create real problems in litigation. Where there is smoke, there’s often fire, and the existence of any purloined documents — no matter how innocuous — can burn you in court.

Departing employees are not supposed to take company documents with them, and people who do are suspect. The litigation will begin with your competitor requesting documents, so make sure your new hires don’t take any — including their Rolodexes(TM)– and eliminate this issue at the outset.

How can a company prove it’s pursuing the employees, rather than the trade secrets those employees know?
Make sure new employees don’t bring any documents with them. Make sure any documents you create in the course of hiring people from a competitor are completely accurate — reflecting your company’s desire to hire the people for their general knowledge and experience, not any specific, proprietary information to which they may have had access when employed by your competitor.

Ask yourself these simple, fundamental questions: Are these people I’d want to have around for the long haul, even if they don’t know any of my competitor’s secrets or don’t have my competitor’s customer list? Can I honestly tell them I don’t want them to use any confidential, proprietary data, documents or customer lists they took from my competitor? Can they do the job for me without misusing the competitor’s trade secrets and customer lists? If you’re not absolutely certain that the answers to these questions are “yes,” you may be in for trouble.

How careful do companies need to be?
Courts will crack down on employee raiding to prevent the misuse of trade secrets, but they are loathe to stop people from taking the job of their choice, especially where there is no contractual non-compete provision. But it still pays to be careful about how you approach a competitor’s employees. If the evidence tends to show that you have predatory intent, it can tilt the case against you.

So courts could prohibit employees from working for a particular company if its actions were ruled predatory?
The 13th Amendment outlawed slavery in this country more than 130 years ago, and courts almost never order that people must remain in employment that they wish to leave, but courts frequently do enjoin an employee from going to work for a new employer.

What are the chances of a corporate raider avoiding that kind of situation?
If the new employees sought you out — or even if you identified the group of new hires as part of a broad-based search in which you had interviewed and considered prospects from numerous sources, your chances of prevailing in litigation will be substantially greater.

On the other hand, if the evidence shows that you specifically sought out particular employees in a particular competitor’s operation, it will lend credence to the competitor’s claim of “bad intent” — that you were seeking its trade secrets, not its bodies, or that you were seeking to hurt it rather than trying to help yourself.

What can an employer do to protect itself?
Take several practical steps to avoid liability if you are sued: Include a representation in new employees’ offer letters or employment agreements that they will not use trade secrets from their former employers. Make sure the new employees’ job descriptions differ from their prior posts and leave legitimate room for the employees to operate without using trade secrets. Instruct the new employees’ colleagues in writing as to subject matters that should not be discussed with them. Most of all, make sure in job interviews and initial meetings on the job that the new employees are honestly committed to fair competition, not to misusing trade secrets and customer lists from their prior jobs.

Employee-raiding litigation is a problem that good management and planning can often avoid. However, even if litigation does occur, the same steps you take to try to avoid litigation will help prepare your defense by making a solid record to use in court.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or legal opinion.

Workforce, December 1998, Vol. 77, No. 12, pp.121-123.

Posted on February 1, 1999August 29, 2019

White Males See Diversity’s Other Side

John Faure is a middle-aged white male, and he’s pretty sick of having to apologize about that. He’s tired of the put-downs, jokes and inequities. He’s also more than a little dismayed at where a lot of diversity programs have taken Corporate America. He left one job—at a national company celebrated for its HR—because of the company’s diversity initiative.

“Diversity programs perpetuate stereotypes. They’re bad for society and bad for business,” he says. “Diversity is: ‘You need to treat women this way and blacks this way.’ That’s wrong; that’s the problem. There’s a school of thought that says diversity at least moves us in the right direction, but I’ve taken a look at that and I reject it. I think it makes [things] worse.”

One more thing—Faure is an HR professional. If the very gatekeepers of workplace diversity feel under attack, how do other white males feel?

They’d tell you if you’d wipe that smirk off your face. They know what you’re thinking: “Oh poor baby. Poor little poster boy for elitism and easy living.”

But these days, things aren’t so easy for white males. They’ve been under attack for a long time, en masse, for the problems of women and minorities. And some should be, certainly. But it’s ironic that a movement that demands equal treatment for individuals often lumps all men into one troublesome bundle.

A quick Internet search can give good indication:There are literally hundreds of male support groups, including the National Organization for Men, the National Coalition of Free Men and the National Organization for Men Against Sexism—all of which regard workplace negativism toward men as an issue.

Even more portentous is a visit to Prairielaw.com, an online legal community in which almost half the sex-discrimination postings are from men.

There are a few reasons for HR to care about all this. First, what has any person with even a pinky toe in the diversity issue heard a thousand times? That in the next century, it’s going to be whites who’ll be minorities. And with more women than men now earning degrees, it’s going to be white males who’ll be the minorities in pipeline positions. They can’t be ejected from the diversity equation.

Second, to really embrace diversity means to really embrace white males and what they bring to the table as individuals. It’s pretty basic.

Third, to make the workplace unpleasant for white males is to invite the same problem companies have when the workplace is unpleasant for women and minorities: a major talent drain. And, as always, there are lawsuits. Reverse discrimination is a real possibility, and there are growing numbers of suits to prove it.

As Janice Dreachslin, the co-author of Diversity Leadership (Health Administration Press, 1996), explains it, “If white males are made to feel that they’re not a part of the fabric of diversity, then we set ourselves up for a lot of backlash that’s counterproductive.”

That’s putting it mildly.

 

How do diversity programs contribute to discrimination?
The first thing to acknowledge is that diversity initiatives, whether well done or not, are going to make white guys a little antsy, and with good reason. People don’t like to hear they got where they are not by merit alone, but by their skin color.

That, on some level, is what a diversity initiative implies. To admit that women and minorities have been disadvantaged is part and parcel with saying that white males have been advantaged. It makes them question why they are where they are, which is troubling. This holds even more true for those many white males who don’t feel advantaged, whose careers are stalled because they aren’t “knowledge workers,” or who were downsized as middle managers.

But if the only disadvantage with diversity programs was a little white-male discomfort, that would be far from a problem. The real problem comes with how many programs approach diversity poorly.

In the worst-case scenario, there are diversity programs done for the wrong reason, or what Frederick R. Lynch, author of The Diversity Machine: The Drive to Change the ‘White Male Workplace,’ (The Free Press, 1997) calls “diversity penance.”

Diversity initiatives are going to make white guys a little antsy. People don’t like hearing that they got where they are not by merit alone, but by skin color.

Basically, someone in the company—usually a white male—screwed up, so the whole workforce has to go through training, largely as a buffer to lawsuits. This circumstance, says Lynch, is the most likely scenario to create backlash from white males because it assumes that because one white male had a problem, all white males in the company have a problem. “The organization is presumed to be racist, sexist, with horrible problems and glass ceilings,” says Lynch, who has also written Invisible Victims: White Males and the Crisis of Affirmative Action (Greenwood Publishing Group Inc., 1991).

Even if a company is approaching diversity from a healthy angle, training can be offensive to white males if it lumps them all together. When a diversity professional talks about having to change the “white-male culture” at an organization, he or she is doing just that—which should be an obvious diversity no-no. The 60-year-old CEO with an MBA is likely to come from a very different “white-male culture” than the 20-year-old plant worker with a high-school degree.

 

Diversity training shouldn’t be the source of more discrimination.
Other problems arise from training, and more particularly, the trainers themselves. Most diversity experts chuckle over stories of harried HR professionals calling them to request a black man or a Hispanic woman to give a diversity lecture. Richard Hadden, an employee-relations consultant in Jacksonville, Florida, says demanding that only women or minorities conduct diversity training is a bad idea. “Most of the time, diversity training is done by very articulate, competent professionals who happen to be minorities or females. When you do that, someone who’s initially resistant to begin with is going to [see that person] as someone with an ax to grind.”

And some diversity trainers do act like they have an ax to grind. Dreachslin acknowledges that some consultants use inappropriate training activities that unjustly target white males. “I think some trainers carry things a little too far,” she says. “You can’t target white males as perpetrators and only perpetrators.”

Faure agrees. He cringes at the diversity training he attended at the company he left. Not only he and other white males were offended, he says, but so were many women and minorities. Faure felt the trainer came in with an agenda to send a message of zero tolerance to white males. “It was nonverbal cues, the tone of voice, the way the instructor looked at you and directed parts of the program to you,” he says. “I’m a professional trainer, I know how that works.”

And when white males feel targeted, unjustly or not, the problem is compounded because they rarely have safe havens in which to vent steam. Although women- and minority-based support groups thrive in Corporate America, few companies offer a forum for men. The assumption is it’s unnecessary because they have their own built-in networking systems. That’s not necessarily so. It’s crucial for a group undergoing so much social change to have a chance to talk about their issues.

It’s also crucial that those issues are taken seriously, Lynch says. He attended a seminar about “How to Deal with White Males” in which the speaker dismissed reverse discrimination with a flippant theory that it’s all in the heads of white males, and that it doesn’t really happen. Lynch says this attitude can be devastating to a company; it pushes men to keep quiet—worried they’ll be called whiners or racists—while the problem grows and the anger builds. That anger can explode into a lawsuit for reverse discrimination, sometimes with good reason.

 

Is reverse discrimination fact or fiction?
Ah, yes, reverse discrimination. More businesses are guilty than you’d think. In the rush to equality, a lot of companies have closed men out.

In fact, Lynch believes the problem is rampant. “One of the things that came up when I was interviewing hundreds of people was, ‘What about the law?’ The law says you’ve got to treat people equally [including white males]. The response [tended to be] ‘What law?’ and to some extent, ‘We don’t think about no stinkin’ law.’ In other words, the diversity movement has been kind of ignorant or contemptuous of the law.”

If your organization has special-interest programs targeted for Asian-Americans only or women only or blacks only, it could be skirting illegality. If you’ve set up mentoring systems to help women and minorities get a leg up, look over those systems.

Because such suits are filed under a variety of rubrics, no specific statistics are available. But legal experts say they’re on the rise. Jeff Tanenbaum, an employment law attorney with Littler Mendelson in San Francisco, believes that they’re a trend of the future. He says he’s seeing more suits filed by men for wrongful discharge and failure to promote, where before there were none.

Few people, not even angry white males, are asking companies to toss out diversity programs altogether. But a few basic considerations can avoid many problems.

“[Diversity] is a terrific thing, but it has to be handled in an appropriate manner,” he says. “Unfortunately, what sometimes happens is a diversity policy becomes a discrimination policy [against] white males. There’s no doubt in my mind that misuse of diversity programs and policies is causing a significant problem.”

Bob Nobile, an employment-law partner with Winston & Strawn in New York City, says that mentoring systems for women and minorities are good things, but “[companies] are excluding males and nonminorities from the process. So then someone turns around and says, ‘What about me? Am I chopped liver? Why can’t I get mentored?’ Men need to be mentored as well as women do.”

Nobile says if you want to start a mentoring program, that program should be open to all employees. Doesn’t giving men formal mentoring just perpetuate the promotion of more white males? Nobile puts it this way: Yes, you may be enhancing the skills and contacts of white males. But you’re also enhancing the skills and contacts of women and minorities, so they can compete on an equal footing with males, which is the purpose of most diversity programs. Nobile’s final word? “You can’t have special-interest groups—no programs only for minorities or women or the disabled. In other words, it’s got to be across the board.”

 

If you need affirmative action, back it up with numbers.
Another situation to handle carefully: recruiting by the numbers. If your company has decided to place a percentage number on the number of women and minority hires it’ll make, you’d better have a statistical analysis that shows underrepresentation. Even if you know anecdotally that there are too few women for such hiring to be legal, you must have the stats. The EEOC guidelines state that companies can’t establish an affirmative-action program to sanction the discriminatory treatment of any group of people, including white males.

If there’s a substantial imbalance in your workforce, you can make special efforts to correct it. Just do your homework first. Compare the number of women and minorities in your company with the available labor pool of women and minorities—nationally if you’re recruiting nationally, or locally if you’re recruiting around town. You’ve got a case if your company’s numbers are significantly lower than the available labor pool’s. If you’re going to do a statistical analysis, however, you may want to have legal representation. This offers what’s called “a self-critical analysis privilege” to help protect your statistics from later use against the company in a lawsuit.

Remember, says Nobile: “[Past problems] don’t mean we can now turn around and start discriminating against white males. Have mentoring programs and training programs, but don’t exclude any group from participation. Still, at the end of the day, you’re going to yield the same positive results.”

 

Some simple steps can make a big difference.
Few people, not even angry white males, are asking companies to toss out diversity programs altogether. They’re a necessary burden in organizations still reaching for true equality. But a few basic considerations can avoid many problems.

To begin with, reevaluate your training. A team approach has fewer hurdles than an individual trainer approach does. If a white male gives the training alone, he’s easily dismissed as not understanding the problems of women and minorities. A woman or minority as sole trainer can be seen by white males as forwarding a personal agenda. When they’re put together, though, they make sense. “It’s wonderful to have white males on a training team,” says Dreachslin. “They really model the change that the organization is asking the male employees to make.”

Make sure the training involves white male employees, but doesn’t target them. If the group is doing an exercise on stereotypes about women and minorities, it should also do one on stereotypes about white males.

Focus on changing behavior rather than changing white males. Lynch says some of the better diversity sessions he attended while researching his book focused on respecting diversity in a customer-service sense.

Whether the customer is internal or external, respect is necessary to do a good job. The training focused on behavior, and spurred discussions on whether the behavior was appropriate or not. Such training warns those who are guilty of inappropriate behavior to cease and desist while providing clear examples of such behavior. It also allows white males who aren’t guilty to feel less harassed.

Also be sure to treat white males as fairly as you would treat any other group. If you want mentoring programs to give women and minorities a better chance of joining the executive ranks, remember that not all white males have those same opportunities, either. They may lack the same educational levels or connections as other white males making it to the top.

And even if you think “not at my company,” make sure there’s no reverse discrimination. Conduct a careful statistical analysis, and if it proves there isn’t reverse discrimination, share those numbers to dispel any misconceptions.

 

White males need a place to voice their concerns, too.
Another crucial element is communication. Let white males talk about what’s going on, even if it sounds like complaining to some. E.I. DuPont de Nemours based in Wilmington, Delaware, a leader in diversity, has gone so far as to introduce a Men’s Forum to complement its massive diversity efforts of the mid-’90s.

“Because white men were the dominant group at DuPont, as with many organizations, they became the forgotten entity,” says Bob Hamilton, diversity consultant. “When people talked about diversity, they talked about women and people of color. We started to realize there are issues for men, too.”

The Men’s Forum, a three-day meeting of males, gets at some of those issues. Gathering in groups, men talk about their interactions with their fathers and other men, cross-racial relations between men, intergender relations and how the workplace is changing for men.

Just as the company taps homogenous groups of black women, white women, black males and so on for feedback on their experiences at the company, so does it chat up white males.

Hamilton sees many benefits to keeping the lines of communication open. The approach helps disseminate anger, fix inequities and defuse issues. As Hamilton says, there’s less of a “woe-is-me” attitude.

It’s also, as they so often say about diversity, the smart business thing to do. “For multicultural work to be successful, you have to involve men,” says Hamilton. “Women aren’t going to be able to do it by themselves, and people of color aren’t going to be able to do it by themselves. Until businesses realize that fact, they’re never going to really make that transition to a fully inclusive work environment.”

Or as Faure, the disaffected HR professional, says, “If you tell me that diversity is treating everyone as an individual with individual strengths and weaknesses, I say I’m with it. I’ll preach it from the rooftops.”

A good start would be to just begin preaching it at work.

 

Workforce, February 1999, Vol. 78, No. 2, pp. 52-55.

 

Posted on November 1, 1998July 10, 2018

TOOL Training Budgets 101

There’s a general guideline about budgets: True learning organizations will spend between 3 percent and 6 percent of their payroll on training. Although the American Society for Training and Development (ASTD) doesn’t have a formal position on budgets, the Washington, D.C.-based National Association of Manufacturers does—it recently said firms should spend 3 percent of payroll on training.


While ASTD remains mum as far as advocating a budget number, Laurie Bassi, vice president for research at the Alexandria, Virginia-based firm, says ASTD studies confirm companies that spend 3 percent of payroll on training do achieve exemplary financial results (she adds, however, that companies making such a commitment to training usually combine that training with smart HR policies in general).


But it’s not just having a big budget that ensures big results. You have to be smart about what you budget for and why. If your company isn’t quite at the lauded 3 percent, don’t beat yourself up—the actual average is .9 percent, according to ASTD. Throwing money at training won’t ensure employee excellence. More importantly, some companies and functions simply don’t need as much money for training as others.


Big budgets don’t ensure big results.
To determine a training budget, says Kevin Wheeler, head of consulting firm Global Learning Resources in Freemont, California, first consider the type of company you are. Learning organizations require more diverse, intense and ongoing training efforts than will manufacturing firms that require workers to have a narrow expertise. Also consider who you’re hiring, says Wheeler. Companies that promote from within generally are going to need bigger training budgets than those that prefer hiring candidates who already have the necessary skills.


While these considerations help you get an idea of the size of budget you need, the most crucial aspect of putting a price tag on training will be the type of training you want to do. A good starting place is identifying the core skills most employees must have to work at your company. Kathy Leck, executive director of LEAP—Leadership Education Advancing Performance—at the Lake Forest Graduate School of Management in Illinois says, “Some skills need updating constantly. The dollars should be parallel to how intense competition is for your company. So the question is: How much would you lose if your people stay at the status quo? That’s the question I ask [companies], rather than [asking about] their economics.”


If you’re primarily a customer-service company, for instance, everyone should go through customer-service training, even if some employees aren’t likely to have direct customer contact. “Other than those cores, training will probably have to be worked out, if not on an employee-by-employee basis, then by a department basis,” Leck says. With this decentralized budget model, you can cover the core training in your budget, and if departments want more, they can choose to spend it.


Laraine Mancuso, head of training and development for Reliance National Insurance in New York City, has a similar approach to budgeting. One chunk of the training budget is hers to spend as she identifies the company’s needs. But most of the training she does comes at the request of departments on a charge-back basis. Mancuso likes this approach because she can decide what training she wants to offer, and also stay involved with each department.


Develop a budget strategy.
However you divvy the pot, be strategic. ACCO World Corp., a school and office product manufacturer in Lincolnshire, Illinois, has a zero-base budget, in which each item is justified on the basis of cost or need. The learning-and-development department is a key function of HR and carries its own budget line. Two questions arise in justifying any training: Does it support overall HR, and does it support the company’s strategy of learning and development for the coming year?


Valeria Stokes, vice president of learning and development, submits her budget, then negotiates each item with HR. Although her function is considered overhead on the budget, Stokes also tries to generate money. She leases space in her classroom each week. And grant money she receives from the government for subsidized programs, such as retraining the workforce, is counted as income. So although her budget remains zero-base—similar to a nonprofit model—she brings some revenue in. “We’re not necessarily a profit center, but a center that covers its own costs,” explains Stokes.


The George Group Inc., a consulting organization in Dallas, also starts with the company’s business strategy to determine where training money goes. The company regularly draws a skill profile of its consultants, and matches the profiles with skills the company will need in the future. This helps it draw a skills gap, so it knows where to put training money. “You can take a group and draw a map of the skills you want. Then you draw a map of the skills you have and it shows you in what areas those people have to develop,” says Max Isaac, skill-center vice president.


The Forum Corp., based in Boston, recently helped a banking company move toward a more strategic training budget. Before, all regions held onto their own slice of the pie, whether they needed it or not. Training’s impact under this model was low, and the budget wasn’t being used to move the company forward as a whole. In the new model, the regions put all the current budgets on the table, and the company presents where it needs to go in the next year. “Looking at it that way, the decision makers can decide how to line up all that money to have impact on the major priorities—and still keep some funds for things that have to be done locally,” says Sarene Byrne, Forum Corp. executive vice president.


A business-strategy approach also helps safeguard your training budget from being cut, says Wheeler. He suggests taking the actual business strategies for the company and attaching the training necessary to achieve each strategy, along with your projected cost. That way, you’re not making a plea for a block of money. Instead, you’re presenting the training that has to be done for the company to get where it needs to go.


The bottom line on budgets: Don’t worry about keeping up with the Joneses on a monetary level—don’t fret over percentages. Work to ensure you’re funding the right efforts to keep your company competitive and get it to its future goals.


Workforce, November 1998, Vol. 77, No. 11, pp. 91-92.


Posted on November 1, 1998July 10, 2018

Take a Look at the Future Office

Corporate America has gone from rows of neatly ordered desks to sections of neatly arranged cubicles to open-office-and in some cases, back again. Today, a passionate debate rages over whether employees work better in or out of cubes. Americans take their workplace structure seriously, and probably should, seeing that we spend most of our weekdays there. Workforce recently spoke with Tim Syfert, group manager for Holland, Michigan-based Haworth Inc., a furniture company known for creating office innovations. He explains where offices came from, where they’re going, and a little bit about a growing industry called cognitive ergonomics.


Workforce: What are the key characteristics of a ’90s-style office in comparison with offices in the past?
Syfert: Companies used to focus on the output of the company; therefore they’d put offices in place and didn’t really care much about the individual. That’s how the six-pack, eight-pack and 12-pack [cubicles] came along. Then, when the emphasis switched to the knowledge worker in the early ’90s, companies went to the opposite end and tried to focus on making individuals as comfortable as possible, giving them more control over their environment.


Workforce: How will this change be reflected in office setups and furniture?
Syfert: We’ll start seeing more flexibility: Mobile markboards, informal tables that serve as a primary place to do work, but are on wheels so they can be moved out to a common area. Most storage options are on wheels too, so they can be moved down the hall or across the building. By the end of the year, we’ll have on market a thing called a Big Wall. It’s like a partition on wheels; it can make a long, straight wall and fold up like an accordion. We have a thing called Monkey Bars, like a wall of function. It’s on wheels, and is basically a vertical surface with horizontal bars on it to hook accessories-storage bins, file boxes, whatever.


Workforce: What are companies changing and what are they keeping as far as office design goes?
Syfert: Basically, customers are looking for flexibility and less permanence in the office, and they’re looking to expand their power and cabling capacity. Everyone thinks there’s some kind of an office of the future out there, and companies are wanting to take interim steps to get there. But people still feel comfortable with things surrounding them, like partitions or panels. They still like work surfaces, so they’ll still be around.


Workforce: Tell me about cognitive ergonomics.
Syfert: Cognitive ergonomics is creating spaces where the mind does its best work. [Cognitive ergonomists] work on things like: You go into a conference room and have a meeting. A lot of information that you retain in your mind is spurred by those surroundings. So if you go back to your desk and start to work again, you may not have the same thoughts or ideas. So [cognitive ergonomists] will try to design a way to have you go from place to place so that the surroundings spur those thoughts. These people will be working with companies to basically create environments that make people think better.


Workforce, November 1997, Vol. 76, No. 11, pp. 56-63.


Posted on September 1, 1998July 10, 2018

Why Employees Are So Angry

It’s a lot like a mathematics equation gone horribly wrong. Hmm — let’s see: lowest unemployment in decades, companies scrambling to woo new workers, more money than ever spent on workplace programs. These factors should all add up to a satisfied workforce. Not so. Instead, companies nationwide are reporting quite the opposite.

Ronald M. Katz, assistant vice president of corporate employee relations at Chase Manhattan Bank, is continually surprised by the increase in his employees’ anger. He says that 10 years ago, a violation of the bank’s conduct code was absolutely scandalous. In 1988, for instance, Katz can think of one, or maybe two conduct violations for the year. In 1996, there were at least 15 terminations linked to insubordination, screaming at managers in front of customers, and even a few fistfights.

Now, this isn’t a rough-and-tumble industry we’re talking about. This is banking. And it’s not just any bank, but the well-respected Chase Manhattan Bank — a perennial favorite for lists like Working Mothers’ list of “Best Companies for Working Mothers,” and an organization lauded for employee programs from flexible work arrangements to diversity initiatives. “It goes with the [increased] litigiousness of employees,” Katz says. “They’re more willing to lash out, or at least threaten it.”

Meanwhile, across the country in I’m-OK-You’re-OK San Francisco of all places, Michael Lotito starts his morning ritual. As he gets ready to shave, the 22-year partner at employment-law firm Jackson Lewis stares at his reflection in the mirror and reminds himself that most employees are really decent people. “There’s been a general breakdown in relations between employees and employers,” he says. “It’s a crime to talk about employees in the context of risk management, but we do.”

And Bill DeFoore, who literally wrote the book on anger, notes the counterintuitive conclusion that has managers collectively scratching their heads: “Work conditions in some ways are better than ever, but people’s tolerance for unmet needs is lower, and frustration and anger and the willingness to express it is on the rise,” says the author of Anger: Deal with It, Heal It, Stop It from Killing You and The New Bottom Line: Bringing Heart and Soul to Business.

The general disenchantment of the workforce surfaces everywhere. Workplace grumbling rises. Employment lawsuits multiply. And employees continue their great migration to — well, anywhere but where they are now.

A recent Workforce/E.span survey in the June 1998 issue tapped into this anger. Eighty-four percent of HR professionals said their firms were experiencing increased hostility.

But why is this happening? The same survey offered several explanations. Sixty-four percent of HR managers say their companies haven’t been as employee-friendly as they’ve promised in areas ranging from work/life to career development. Conversely, 67 percent said they also believed employees have unrealistic expectations in what their companies can — and should — provide in terms of HR services like benefits, compensation and perks. DeFoore sums it up when he says, “There’s a gap between [employees’] reality and a better picture out there in the employment world.”

In other words, there are mountains of unmet expectations to be reckoned with. Society, business, HR and employees themselves have all contributed to building an era of great expectations. Now that those expectations aren’t becoming a reality, employees are getting quite irritated. They got their hopes up too high, and there are three primary reasons that explain this phenomenon:

  • Corporate America is infatuated with spin. Top executives still fear giving employees straight talk. Instead of giving the bad news with the good news, companies try to make everything seem a little too shiny and bright. Result: Employees who believe the spin get angry when reality sets in.

  • Decreased loyalty and promises of big paydays have made companies prime targets of suits. Companies, led by counsel, protect against serial suers by churning out legal program after legal program. Result: Employees who are lulled into a false sense of security become surprised and angered when faced with harassment or criticism. Some sue; some stew.

  • Attention has been misplaced on flimsy HR efforts. In-creased media focus and corporate buzz has heightened the profile of employee services. In response, HR has over-programmed the workplace. Result: Employees become jaded by “programs of the month,” and get angry when they feel these goodies overshadow real effort to make their companies better places for them to work.

Yes, HR has had a role in perpetuating all these problems — but HR can also play a big role in fixing them. Here’s how to align employees’ expectations with the realities of your company — and boost your credibility in the process.

Don’t spin.
Some companies are a bit like Oscar Wilde’s character, Dorian Gray. On the surface, they look like simply lovely places to work — proactive, synergistic, “outside the box.” But somewhere inside, underneath the curtain, there’s that darn portrait, growing more ugly, decrepit and deceitful. HR shouldn’t help hold down that curtain.

While the spin cycle has always been a part of doing business, it became an even larger problem in the early ’90s, when Corporate America began trimming, cutting, then butchering its payrolls.

Layoffs became rightsizings (“It’s not that you’ve been let go; you’ve been rightsized. Now don’t you feel better?”). Pay increases were swapped for career development (“You may not be here forever,” — read: “We’ll probably fire you tomorrow, but we can give you the skills to get you to that next place,” — read: “You’ll be home, eating cheese puffs, watching foreign-language soap operas in your bathrobe”). And slippery little packages started arriving, made up to look like employee services (“We’ll do your laundry, extend daycare hours, and give you laptops for home”). They too often just enabled longer workdays.

Certainly, HR is not to blame for the wanton cannibalization of the workforce, and career development and employee services are indeed hallmarks of excellent organizations. But when these programs are simply tokens to keep employees at bay, as they are at so many companies, employees lose faith in their companies. Now that many see exactly how little has improved after all the promises and posturing, they’re justifiably miffed.

“HR has been stuck promoting a panacea type thing — doing pep rallies — which is irritating to employees,” says DeFoore. “They’re asking for integrity … [Instead,] the conversation from management to HR is ‘Make this look good to the people. We’re going to do it; you sell it.'”

For HR professionals to be effective, they must know what employees are thinking. This insight requires that employees view HR as a center of straight talk, straight answers and integ- rity. And that, of course, means that an image of HR as part of the PR machine is devastating to the profession.

How can this situation be resolved? The answers range from full-scale cultural change (for which you’d have to drop some dough) to surprisingly simple steps you personally can take.

Dave Raco, training manager for TravelCenters of America, has opted for the cultural-change approach. It’s nothing less than an attempt to make the company, which bundles service stations, restaurants and hotels for the road-weary, a paragon of trustworthiness.

The Westlake, Ohio, firm has tripled in size in just the past year alone, and realized that to continue its aggressive growth, trust would be a requisite. And who better to help, managers thought, than Franklin Covey Co., the Provo, Utah-based organization that brought you Franklin planners and “The 7 Habits of Highly Effective People”?

Last year, Franklin rolled out a new program called Building Trust, created in response to what project manager Richard Maddox calls “a mega-problem among HR managers concerning corporate cultures.” The problem, identified by research, was a lack of honesty in companies, which directly contributed to current, dismal employee-retention rates.

Each workshop starts with a survey to see where the company’s current trust levels are. Employees answer questions such as “How are you/your team/the organization at: Honoring commitments? Behaving and communicating consistently? Sharing information, both positive and negative, with those who need it?”

During the day-long workshop, employees talk about spe-cific instances of trust breakdown in their areas. For example, “Jane in HR said she’d look into a daycare program, and then when I asked her about it, she mumbled something about how lucky we are to have casual days and scuttled off.”

The employees then pair off to create action plans that fix their specific trust issues, such as an oath stating, “I, Jane, will write down each employee question or request, and follow up weekly with a memo on my progress, or lack thereof. Said memos will be (gulp) spin-free.” The partners meet in a month to see how they’re doing, and a post-course profile measures how the company is coming along.

The workshops can help HR on several levels. First, they offer a support base in which HR people can look managers in the eye and say, “If we’re not going to have a daycare, we need to explain to employees exactly why there won’t be one — it’s one of my workshop commitments.”

Second, Raco says, is when trustworthiness spreads throughout the organization, the culture actually does change, taking the pressure off HR to wax happy. Raco says he has seen improvements in trust across the board after each iteration. “Trust spirals upward,” Raco says. “It’s a very powerful thing. When I see you as trustworthy, you start to become more trustworthy.” The cost of the transformation is in the $200-per-person range for Franklin Covey facilitation. If a company uses its own training provisions, the cost drops markedly.

For those with neither the time nor the company cash, there’s the personal approach. Mary Sickel, who used to be an HR manager and is now a business coach for HR managers, says there can be no spin, no equivocations and definitely no lies. “HR needs integrity,” says the Lakeville, Minnesota-based consultant. “Tell the truth, speak up, and be honest, because when you’re not, they see through it.”

Let employees vent, she advises. Even if they’re angry, they’re giving you important information. Don’t claim to have answers or solutions, but get answers for them. And if it’s a big scary issue like downsizing, get the right answers. Is top man-agement being slippery? Videotape managers responding to employees’ tough questions. Then, at least when they change their minds, you don’t get labeled a counterintelligence agent.

Sheila Smith, who’s managing a workforce’s transition to computerization, knows how tempting it is to put a smiley face on challenges. After several downsizings at the City of Norfolk, Virginia, the workforce is a little skittish. So when the city’s executives visited each site of the water utilities department to explain the technological changes, she tagged along to make sure the message remained the same, and to log employee questions. “Too many official communications are spiels; you might as well be at a Tom Peters’ seminar. Employees prefer honesty,” she says.

Therefore, she has designated herself the willing ear for all employees. They come to her with complaints, questions, problems, ideas and suggestions. What’s the key to her relationship with workers? “The absolute necessity of listening to employees without feeling you have to answer all the time,” she says. “You need to say ‘I appreciate your perspective, thanks for sharing your insight,’ rather than feeling you have to legitimize or defend a company policy. It’s hard not to be defensive — not to have an answer — but the dialogue is more important.”

Jackie Brinton, an HR professional at W.L. Gore & Asso-ciates — the maker of Gore-Tex — in Newark, Delaware, takes it a step further by addressing organizational problems during employee orientation. For instance, the company, famed for its lack of titles and hierarchy, depends on a “sponsor” system in which old-timers help newcomers navigate the ambiguity of the group’s structure. The system has taken a beating in the past year because Gore is adding people so quickly, there aren’t enough trained sponsors to go around. HR addresses this issue by talking about strategies that employees can use to get the attention they need. “I didn’t want it to be that HR happy talk,” says Brinton. “We want to give people an idea of the ideal of Gore, but that there are the realities, and here’s what they can do about it.”

Most HR professionals genuinely want to make employees happy. In a job function so often shackled by upper management constrained by budgets, cheap programs and policies are easy answers.

The approach builds HR’s credibility, while also ensuring HR doesn’t build false expectations — which is exactly what the function needs to do.

Present legal issues realistically.
It’s scary out there. There are many ex-employees waiting to damage companies they rightly or wrongly believe have done them wrong. There are tremendous payday possibilities: Recent jury verdicts have awarded millions to individual plaintiffs for harassment, discrimination and defamation. Plus, there is a decrease in loyalty that employees feel toward their employers — particularly after the past wave of downsizing.

Wisely, HR professionals have jumped in to protect their companies with full-body legal armor. Unfortunately, this has created another unrealistic set of expectations. In an era where there’s a program or workshop for every employment issue, too many employees have begun to expect a problem-free workplace. They’re shocked and upset when that isn’t the case.

But the good news is there’s a way HR can both protect the company and place employees squarely in the real world. First, be very careful about how you promote your training program, especially in the sexual-harassment and discrimination arenas. For instance, make sure employees understand that although the diversity-awareness training is intended to help forge a discrimination-free environment, it’s not a cure. Despite your best efforts, problems may arise.

Being practical doesn’t mean going all nuts-and-bolts, and overdoing the compliance angle could be off-putting, says Lotito, the employment-law attorney. “Too many employers are focusing too much on the legal side and not enough on the human side,” he says. “Let’s not forget that we still are dealing with human beings.”

Lotito suggests this type of approach: Suppose sexual harassment keeps you from doing your best work. You may develop a program that helps address the issue, and helps people understand why it’s wrong — but it’s up to you to report problems. You must also do your share in solving these obstacles through a strong internal system.

The approach accomplishes two important things. First, it gives employees a warning that problems may still occur. Secondly, it reminds them of their responsibility — that they must help too. This lowers the expectation that everything’s going to be perfect all the time, which in turn lowers chances of lawsuits from shocked employees who feel the company promised them a trouble-free environment. “Don’t ever guarantee there won’t be a problem,” says Brooks Kubik, who handles employment law for Louisville firm Stites & Harbison, “but guarantee that if there is a problem, employees can go to [HR], and HR will work on it with them.”

However, if your workforce needs a stark, black-and-white legal picture, you can strip the HR piece down even further. Call in a third-party counsel to boil compliance down to dos and don’ts. You’ll find if employees and managers don’t respond to “doing it because it’s right,” they will respond to “doing it because it’s illegal not to.”

For example, the HR folks at the Kentucky Housing Corp. in Frankfort knew they needed to get their managers up to speed on everything from performance documentation to workplace violence to the Americans with Disabilities Act. They also knew that, although it was their initiative, HR shouldn’t touch the actual training. “We felt if HR [conducted it], instead of thinking of these things as a law, managers would think of them as HR’s rules,” says Shelly Prochaska, employee development manager.

So they brought in Kubik, who conducts scores of such seminars, and believes managers don’t need to know just how to do things legally, but also why. And he doesn’t hesitate to sell the ‘why’ on a personal level. At Prochaska’s seminar last December, he spoke about how simple it is under Kentucky law to file individual claims against managers — and how easily a suit can ruin people’s lives. And, oh yes, he adds Kentucky has no cap for emotional-distress damages.

HR played the good guy, as it does in all Kubik’s training — he goes in, reads the riot act, and says that HR is there to help. Suddenly, the necessary legal training has been done, and it isn’t tainted as a flavor of the month. “I have a very strong bias that HR managers shouldn’t do these types of programs,” he says. “If you do, they think it’s just another program and tune you out.”

Don’t be “Catbert.”
They’re everywhere. Surf the Internet, flip through a magazine, browse through a bookstore — and there they are: lists of the best places to work for mothers, for fathers, for baby boomers, for Gen Xers, for minorities, for disabled people, for just about anyone. Employees have more information than ever before on what companies are doing for other employees. They want what they believe other employees have — often imagining unrealistic business meccas with high compensation, hefty perks and fewer work hours — or at the very least, they want great places to work.

HR wants that too.

Unfortunately, creating a great company isn’t easy, it isn’t cheap, and it sure as heck isn’t something the HR department can do on its own. So HR does what it can, and thus, it slips into “Catbert” mode. You know Catbert — Scott Adams’ evil HR director who spreads little seeds of dysfunction throughout Dil-bert’s corporate empire. His weapon of choice? Really pointless programs. Oops.

It’s easy to understand why HR is wedded to its programs and policies. Most HR professionals genuinely want to make employees happy. In a job function so often shackled by upper management and constrained by budgets, cheap programs and policies are easy answers. There are a lot of them. And this upsets employees because what they expect — true assistance in helping them work better and smarter — isn’t what they get — lots of little programs they don’t really want or need.

Even if you can’t swing performance bonuses for the big project design team, they know you’ve been there, talked with them about their issues, and are accessible. You “get it,” which is something HR doesn’t hear often enough.

“The program of the month is one of the things that has made employees hold HR up to ridicule in the first place,” says Pamela Pommerenke, an assistant HR business professor at Michigan State University in East Lansing. “Workers aren’t fooled by this … they realize it’s bull, and they laugh at us.”

How can HR cut the bull and get down to business? Avoid the temptation to throw programs at problems, says senior vice president Jim Krefft, president of consulting firm Six Sigma Qual-tec in Scottsdale, Arizona. “Pretty soon, you are Catbert. It’s kind of like when cops go play ball with the poor kids to improve their image. HR has been in let’s-give-’em-stuff mode … like casual days from May to September — that’s in the baubles and trinkets category. And HR persists, ‘If this trinket doesn’t work, here’s a shiny one over here, let’s try this.'”

Brinton believes the very fact that she has no official HR title at Gore gives her a psychological advantage in the war against baubles and trinkets. Rather than signing on to the expectations from an HR title, she signed a “commitment” to make the company work through its people.

And that’s what she does every day. On a recent day, she started work with a pre-employment testing project that she had initiated after detecting decreased literacy among applicants. She conducted interviews to fill vacancies in the fabrics division at the request of the department. And she joined a team meeting to discuss hiring and performance issues — a meeting to which she invited herself, although the team is just as likely to approach her.

How does she manage being taken seriously, much less appreciated, by Gore’s employees? “Every time you interact, you gain or lose credibility,” she says. “I try to gain it by modeling our values and principles, treating people fairly, following through on my commitments, understanding where the business is going, being open and honest … It’s real basic stuff; it’s not magic.”

Katz also has a pragmatic approach. He jokes about his peers who “go from polls to focus groups to meetings to newsletters and never have a deliverable. That hurts us.” Instead, when he was a generalist, he hit the line at least one day a week, talking with managers about their people issues and possible solutions, making sure he was visible. He even pulled a night shift at least once a month so he’d have face time with the check-processing department. He quotes Woody Allen’s line: “Eighty percent of success is just showing up.” And the success has earned Katz what he considers his highest recognition: an internal award from a branch manager who said he always saw Katz as a member of his team.

Katz is also diligent about promoting HR’s tangible success stories, something he thinks the function has been too modest about. For example, if employees receive a big paycheck from their profit sharing, HR should ensure everyone knows how the compensation team makes it happen.

The best part about Katz’s approach is it doesn’t cost money. You don’t have to play “Mother May I?” with the executive team, and yet the payoffs are big. Even if you can’t swing performance bonuses for the project design team, they know you’ve been there, talked with them about their issues, and are accessible. You “get it,” which is something HR doesn’t hear often enough.

Katz couldn’t do anything to stave off the downsizing the bank went through a few years ago, and couldn’t always help employees who had to switch locations or shifts. But he did attend every downsizing announcement, acknowledging the disrupted commutes and daycare arrangements, and the uncertainty employees felt. “I said, ‘Talk to me. Talk to me today, talk to me tomorrow, talk to me whenever, but talk to me.'” He still gets phone calls from employees he hasn’t worked with in years.

Easing employees’ anger is all about aligning their expectations with company realities. By backing off the spin, offering sensible approaches to workplace legalities and refusing to throw programs at problems, HR can ensure employees get what they have coming to them.

Of course, we won’t tell you that every employee will love you afterward. It would give you unrealistic expectations.

Workforce, September 1998, Vol. 77, No. 9, pp. 26-33.

Posted on September 1, 1998June 29, 2023

Accommodating Religion on the Job: Few Rules, Lots of Common Sense

Religion is one of those topics that you don’t discuss with people you don’t know very well. This is done for a good reason: It’s personal, wildly divergent among people, and can be a volatile topic.

So how do you approach this intimate, prickly subject with the woman who needs Christmas off, the man who must wear a yarmulke, or those folks who always seem to be recruiting new blood for their churches? Very carefully is the short answer, as religious holidays, philosophies and clothing are all protected to some extent under Title VII. Tim Howlett, a member of Dickinson Wright’s employment-relations practice group in Detroit, offers some insight.

 Can you provide a frame of reference on what employers can and can’t regulate in terms of religion?
A good frame of reference for employers is the Americans with Disabilities Act (ADA) [because] what happens in terms of religion in the workplace is accommodation. It’s a balancing act, and it’s dependent on the individual situation. It’s important for employers to get some legal advice on these issues because, a lot of times, there’s just not an iron-clad rule. A lot of it is common sense.

What about a company that doesn’t want employees to wear long beards or veils because of safety issues?
There have been such cases. Suppose somebody’s religion requires him to wear a beard, and he has a job in which he has to wear a safety mask. How can you accommodate that? You can’t just do away with the rule that somebody must wear a safety mask. That doesn’t make sense, and you’d run into problems with OSHA. The same rules apply to somebody wearing a turban or veil. If there are risks [or] if the person works around equipment, the employer doesn’t to have to sacrifice safety to accommodate someone’s religion. What you can do is try to assign the employee to a different job.

 How would you handle this topic in a hiring situation? What if a person whose religion requires him or her to wear a beard or veil applies for jobs in which wearing those would be unsafe?
Say, for example, you’re hiring for a specific position, and employees would be working in the chemical area. You know that your employees are going to have to wear masks in this case.If someone comes in with a beard, an employer could say, “Look, this is the only job opening we have right now, and you can’t have a beard because you can’t get a tight fit with a mask. Are you willing to shave?” If the person says no, then he doesn’t get hired.

That’s all an employer needs to do in that area?
Well, an employer needs to exercise some common sense and not say, “Does your religion make you wear that beard?” The issue isn’t the religion or the reason for the beard—the issue is the beard.

What if the objection is not so much about safety, but more about uniformity in employee appearance?
You get into real gray areas there. If you have someone in a sales position, and the person’s religion requires him to have a beard, wear a turban or whatever, [it wouldn’t be wise for the employer to say], “Gee, I’m not sure how my customers are going to react to this—you can’t have this beard.”

[When religious items or apparel don’t interfere with safety, employers should tend toward accommodation. For instance, the EEOC has also stated that employees may keep religious books or office decorations.]

What about discussing religion at the workplace? Where’s the line between being friendly and harassing someone?
In terms of somebody proselytizing, freedom of speech is going to give the person that right. An employer can’t just ban employees from inviting people to attend church services or join their churches. But if an employee says, “Okay, I listened to you, and that’s enough. I don’t want to be bothered,” then you’re balancing the free speech of one person with another’s right to be left alone—and the latter generally prevails.

So where is the line drawn?
An employer starts running real risks if supervisors or employees are commenting on whether someone has been to church, or they’ve observed that someone doesn’t have a [religious] bumper sticker on his or her car, or things like that. They run the risk that if something adverse happens to that employee, the employee will claim he or she was discriminated against because he or she [wasn’t religious]. And the evidence of this [discrimination would be the] supervisor was commenting that he or she didn’t see the employee in church.

If there are risks (or) if the person works around equipment, the employer doesn’t have to sacrifice safety to accommodate someone’s religion. If you start going down that road, you’ll run into some potential problems when you’re disciplining or transferring an employee. So you can’t ban discussion of religion, but the safest place is to try to limit it — especially for supervisors — and to draw a line between discussion and harassment.

Do any of these rules change between public- and private-sector employers?
There’s some difference in terms of religious organizations. If I’m running a Lutheran school, for example, I can decide I only want to hire Lutheran teachers. If the purpose of the school is partly this religious purpose, it doesn’t give me license to discriminate because of gender or age, but I do have some leeway in terms of religion.

That can get into kind of murky water, too, because some religious organizations have business entities in which religion really isn’t the purpose of the entity. That gets to be a grayer area on whether the organization can discriminate against somebody because of his or her religion, and it probably can’t. That’s a difference in the whole employment area that you just don’t run into with other protected classes.

Also, public institutions have to be more careful about their employees talking about religion because they’ve got to worry about whether they appear to be fostering a certain religion. If I’m running a warehouse and one of my workers starts trying to convert somebody, that’s probably not illegal, unless the person is harassing. But if I’m running a public-school system, a teacher doesn’t have those same rights. He or she can’t go up and try to convert the parents and kids that are coming in there.

How accommodating should an employer be when (handling) employees’ schedules around religious holidays?
That’s an issue that will probably grow. In Michigan, there’s some legislation that has been proposed which says an employer can’t penalize an employee because the employee elects not to work on a holiday.

An employee has to give the employer at least a week’s advance notice, and the employer doesn’t have to pay the employee, but he or she has a right to have the holiday off. The EEOC has regulations in terms of accommodation on scheduling. It talks about different things an employer needs to try: voluntary substitutes or trades, flexible scheduling; those kinds of things at least need to be considered.

Again, it’s an accommodation issue, and the employer has to accommodate if it doesn’t cause an undue hardship.

How do you determine what is undue hardship?
The general standard right now is the cost to the employer — when a religious accommodation would cost more than basic administrative costs.

If I’m running my business on Christmas and one person says, “I won’t work Christmas; I don’t believe in it and it’s against my religious beliefs,” and it’s just [that one person], I think an employer will be hard pressed not to give that one person the day off. If 90 people come forward, then it becomes a different issue—you’re talking about basically having to close the business down.

Now those are extreme examples, and most cases are going to be kind of in the middle in terms of how far an employer has to go to accommodate.

What can an employer do when everyone asks for Christmas off?
I suppose the employer can try to be a little creative with this situation. Maybe the employer can say, “Look, I’m only able to permit 20 people to take the day off. I’m willing to do it with a lottery or I’m willing to do it other ways.” So the employer can’t be accused of not accommodating at all. The employer has done what it can up to the point of undue hardship and is just going to have to refuse to give some people the day off.

The Clinton administration offered guidelines addressing religion in the federal workplace—are any of them helpful to non-federal employees?
They would, and if there were litigation, [an employer who followed them] could use that as evidence of a reasonable accommodation. The guidelines talk about accommodating work schedules and religious apparel, and suggest looking for less restrictive means to accomplish the employer’s purpose through voluntary substitutions, job reassignments and lateral transfers.

And the guidelines also talk about individuals’ religious rights vs. the employer’s interest in running an efficient business. Basically, the non-federal employee’s right to exercise his or her religion is balanced against two different things: the employer’s interest in efficient services and the intrusion on other employees.

Is there one area of these cases that tends to elicit litigation more than other areas?
Scheduling cases show up most. The employer has employees who want time off because of their religion. That puts the employer in a tough spot. If my religion prevents me from working Saturdays, a lot of people are going to get upset that they have to work Saturdays, which is traditionally a family day. At some point, the other employees are going to start complaining. And then the employer’s caught in between. It comes back to accommodation and negotiation.

To view the Equal Employment Opportunity Commission’s “Facts About Religious Discrimination,” go to http://www.eeoc.gov/facts/fs-relig.html

The information contained in this article is intended to provide useful information, but should not be construed as legal advice or a legal opinion.

Noted author Gillian Flynn is a former Workforce staff member. Comment below or email editors@workforce.com.

Workforce, September 1998, Vol. 77, No 9, pp. 94-97.

 

Posted on August 1, 1998July 10, 2018

FMLA What to Do Now

While the politicians work on the future of FMLA, the best thing HR professionals can do for their companies is ensure they?re in line with the current regulations. Here, Dana Connell, a partner at the Chicago office of employment law firm Littler Mendelson, offers advice on the two most difficult FMLA areas.

Definition of serious health condition
In its final rule, the Department of Labor expanded the categories that constitute a serious health condition. Basically, what you have to do to determine whether [an illness is considered a serious health condition] is look at it three different ways.

  1. Look at whether it?s inpatient care. If it is, it qualifies.
  2. Is it a period of incapacity of more than three consecutive calendar days in which the employee either has treatment by a health-care provider twice or treatment once and a regimen of continuing treatment?
  3. The third category is specifically protected situations the DOL has decided to protect, even though they don?t involve inpatient care or more than a three-day absence. These include pregnancy, prenatal absences like morning sickness (for which a doctor?s slip is unnecessary), chronic conditions like asthma, diabetes and epilepsy, permanent long-term conditions or multiple-treatment conditions.

Intermittent leave
Employers need to remember they have more rights on this than they think they have. The employee needs to show a medical need for intermittent or reduced leave. If employers use the form the Department of Labor suggests for medical certification — form WH380 — it has a box on it in which the doctor will indicate whether the condition calls for intermittent leave.

You do have the right to transfer the individual to an alternative position under section 204 of the final rule. The position has to have equivalent pay and benefits, but not equivalent duties. Another thing to keep in mind: If it?s a situation involving the birth of or adoption of a child, the employer doesn?t have to grant intermittent leave. If someone wants to take a pregnancy leave and return on a reduced schedule, the employer doesn?t have to grant that.

Workforce, August 1998, Vol. 77, No. 8, p. 40.

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