In my opinion, the original British version of The Office is far superior to its American counterpart, in large part because David Brent is so much more cringe-worthy than Michael Scott.
This meeting violates one of the cardinal rules of terminating an employee:
Don’t debate the decision or supply a lengthy explanation.
If you have previously communicated to an employee documented performance issues, there is no point in rehashing them at termination. It accomplishes nothing and is cruel. Instead, simply remind the employee that you’ve previously discussed the issues, which have not approved.
In a reduction in force, the conversation is even more simple: “The company has eliminated your position, and is prepared to offer the following severance package.”
The more detail you provide, the more penned in you will be in later litigation. Your goal is to be honest with the employee, yet, in the event of litigation, provide your counsel with the most flexibility to support the termination.
And, for God’s sake, don’t debate the disabilities or other protected statuses of those who have not lost their jobs.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
In my never-ending quest to show you how many different ways you can screw up paying your employees under the federal wage and hour laws, today I am going to talk about how to properly calculate overtime payments for salaried, nonexempt employees.
An employer has two choices in how to pay overtime to a salaried nonexempt employee: by a fixed work week or by a fluctuating work week.
For reasons that will be illustrated below, the latter is a much more cost-effective option, and is your best way to save money overtime payments for this class of employees.
Spoiler alert: there is some math involved.
By a Fixed Work Week
If you pay an employee a weekly salary, you must calculate the regular hourly rate of pay by dividing the weekly salary by the number of hours worked in that particular week.
For example, if you hire an employee at a weekly salary of $525, which is intended to compensate for a regular 40 hour work week, the employee’s regular rate of pay will be $13.13 per hour ($525 /40). If that employee works overtime (let’s say, 45 hours that week), you will have to pay that employee $19.70 for each overtime hour worked ($13.13 *1.5). Thus, in a 45-hour week, the employee would be paid $623.50—the $525 salary + $98.50 in overtime ($19.70 * 5).
On a Fluctuating Work Week
Oftentimes the number of hours a salaried employee works will vary from week to week, depending on the given needs of the job. One might work 40 hours one week, 45 the next, and 38 the week after that. An employer and employee can agree that a salary will cover all straight time pay for all hours worked in a given week, no matter how few or how many. Payment for overtime hours at one-half such rate satisfies the overtime pay requirement because such hours have already been compensated at the straight time regular rate as part of the salary. And, that overtime premium will vary from week to week depending on the number of hours worked.
To use this method of overtime calculation, there has to be a clear mutual understanding of between the employer and employee that the fixed salary is compensation (apart from overtime premiums) for the hours worked each work week, whatever the number.
This “fluctuating workweek” method of overtime payment may not be used unless the salary is sufficiently large to ensure that there will be no work weeks in which the employee’s average hourly earnings from the salary fall below the minimum wage.
For example, taking our $525 salary from above, in a 45-hour work week, the hourly rate would be $11.66 ($525 / 45). But, for the extra 5 hours the employee would only be owed an additional $29.15 ($5.83 * 5), for a total weekly compensation of $554.15. The fluctuating work week saves this employer $69.35 in wages for the week. Thus, it is easy to see why the fluctuating work week is the preferred method for calculating overtime premiums for salaried non-exempt employees.
Just this week, in Hall v. Plastipak Holdings, the 6th Circuit Court of Appeals affirmed the validity of the fluctuating work week as an overtime payment method for salaried non-exempt employees, provided that:
the employee clearly understands that the straight-salary covers whatever hours he or she is required to work;
the straight-salary is paid irrespective of whether the workweek is one in which a full schedule of hours are worked;
the straight-salary is sufficient to provide a pay-rate not less than the applicable minimum wage rate for every hour worked in those workweeks in which the number of hours worked is greatest; and
in addition to straight-salary, the employee is paid for all hours in excess of the statutory maximum at a rate not less than one-half the regular rate of pay.
What do we take away from this wage-and-hour lesson? If you have non-exempt salaried employees whose work hours fluctuate from week-to-week, give strong consideration to implementing a fluctuating work week, via a written agreement that explains, in plain English, the arrangement.
Otherwise, you might end up paying three times more overtime than you otherwise could legally pay.
And who wants that?
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Small-business owners, pay attention. This update on the issue of joint employment will be one of the most important things you will read this year.
Joint employment has been on a bit of a roller coaster ride at the NLRB over the past few months.
I’m going to sort it all out for you and try to explain where we might be headed next.
What is Joint Employment?
Joint employment is the sharing of control and supervision of an employee’s activity among two or more business entities, such that each is liable for the legal wrongs of the other to its employees (e.g., discrimination, wage and hour, OSHA, unfair labor practices … ). It’s what would hold a franchisor liable for the wrongful acts of its franchisee, a contractor for its sub and a business for its staffing company.
What are the Historic Joint Employment Rules?
For decades prior to Aug. 27, 2015, it was uniformly established that for one entity to be a joint employer with another, it had to exercise direct and actual control over the terms and conditions of the other entities employees. Do they supervise? Are they subject to the same work rules? Can they hire, fire, and discipline? Who pays and how? Who provides benefits? Who assigns schedules and otherwise directs work? If one employer maintains control over these issues, then the other would not have been a joint employer.
Given this strict test, entities such as franchisors and general contractors felt reasonably comfortable that they were not liable for the acts of its franchisees and subs relative to their employees.
In Browning-Ferris, the NLRB ignored and tossed out 40 years of precedent and expanded the definition of “joint employer” not only to include those that exercise direct and actual control, but also those that exercise indirect control or reserve the potential to exercise control. OSHA and the DOL soon followed suit and announced similar standards under their respective statutes. Small business owners as well as other employers, (justifiably) panicked. If a franchisor, for example, is liable for the legal wrongs of its franchisees towards employees that the franchisor does not hire, fire, discipline, pay, or otherwise direct, why franchise at all? Why not just run the businesses, control the liabilities, and cut out the middle man?
In Hy-Brand, the NLRB expressly overruled Browning-Ferris and restored direct and actual control as the lone test for joint employment:
[W]e overrule Browning-Ferris and restore the joint-employer standard that existed prior to the Browning-Ferris decision. Thus, a finding of joint-employer status requires proof that the alleged joint-employer entities have actually exercised joint control over essential employment terms (rather than merely having “reserved” the right to exercise control), the control must be “direct and immediate” (rather than indirect), and joint-employer status will not result from control that is “limited and routine.”
Bravo. Employers rejoiced.
The Celebration was Short-Lived
On Feb. 26, 2018, the NLRB vacated Hy-Brand, restoring Browning-Ferris (and its potential/indirect control tests) as the law of the NLRA on joint employment.
Why?
Because current NLRB board member Bill Emanuel, one of the three votes in Hy-Brand in favor of overturning Browning-Ferris, was a partner at the law firm that represented Browning-Ferris in 2015. This decision followed the report of NLRB inspector general David Berry earlier this month, which concluded that Emanuel should have recused himself from Hy-Brand, not because Emanuel engaged in anything improper, but because the appearance of a potential conflict should have caused his recusal.
What Now?
For now, Browning-Ferris remains the law on joint employment under the NLRA. And, it likely will continue as such, as without Emanuel, the highly politicized NLRB will almost certainly split 2-2 on any rehearing of Hy-Brand.
Browing-Ferris had been pending on appeal and awaiting decision. The D.C. Circuit Court of Appeals, however, dismissed the appeal and remanded the case back the NLRB for disposition consistent with Hy-Brand. You should now expect more litigation over that issue in the D.C. Circuit.
As you can see, this issue is a muddled mess.
One easy solution is the federal (and bipartisan) Save Local Business Act. It expressly defines a “joint employer” under the NLRA and FLSA as one that —
directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over essential terms and conditions of employment, such as hiring employees, discharging employees, determining individual employee rates of pay and benefits, day-to-day supervision of employees, assigning individual work schedules, positions, and tasks, or administering employee discipline.
It passed the House last November, and now awaits action in the Senate.
This past summer, I asked if joint employment was the issue to unite our divided country. For the sake of America’s small-business owner, I certainly hope it does. If you are concerned about this issue (and you should be), call or email your Senator and Congressperson to urge their support of the Save Local Business Act.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
The 2nd Circuit federal court of appeals (which covers New York, Connecticut, and Vermont) on Feb. 26 held that “Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of … sex.’ ”
There is no federal mandate on the issue, as Congress has refused to act to amend Title VII to clarify the issue, and other federal circuits disagree with the 2nd and 7th. Also, there are still 29 states that do not expressly prohibit LGBT discrimination under their civil rights laws.
In advancing Ohio’s business climate, the Ohio Camber recognizes the value and power of diversity. We believe that employees deserve robust protections from discrimination and that discrimination of any type has no place in the workplace. Everyone deserves the right to do their job without fear of being discriminated against and every person, regardless of their race, color, religion, sex, military status, national origin, disability, age, ancestry, sexual orientation, or gender identity, deserves equal opportunity and equal protection under the law.
As I applaud the 2nd Circuit for its decision in Zarda, I hope I will soon be able to similarly applaud Ohio’s legislature and Gov. John Kasich after H.B. 160 become law. All the while, I wait for the day when we finally have national uniformity on this important civil rights issue.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Consider this scenario. Employer and Employee have a good-faith dispute over whether Employer owes Employee for unpaid overtime for time Employee spent traveling.
Employee sues.
Court awards Employee $608.08 for unpaid overtime (doubled to $1,216.16 as liquidated damages).
So far, this all seems kosher.
Then, however, Employee files his petition for attorneys’ fees.
$141,236.50 in attorneys’ fees.
Ultimately, the court reduced the fee award to a still-shocking $41,333.70.
Why? Because there is no rule that an award of attorneys’ fees be proportional to an employee’s recovery.
Defendants correctly observe that fees should not overwhelm a case. In FLSA cases, as noted, the amount of damages is often less than the fees awarded. Indeed, in recent years this court has seen a spate of FLSA cases brought by low-wage workers seeking paltry sums. The proper measure is not proportionality.
Quite frankly, this is BS.
Wage-and-hour cases under the FLSA are often high-stakes games of extortion-by-litigation.
Plaintiffs rely on the disproportionately high attorneys’ fees to extort settlements of these cases. For small businesses these cases, and the risk of paying their lawyer plus the plaintiff’s lawyer, causes almost all of these cases to settle, no matter the legal merit (or lack thereof) of the wage claim.
No small business can afford the six to seven figures these cases end up costing.
I can see the counterargument coming a mile away. “But Jon, we need to force employers to pay the employee’s attorneys’ fees as a deterrent to force compliance with the FLSA and to stop them from stealing wages.”
This argument, however, rests on two huge assumptions with which I strongly disagree:
That employers are stealing wages from their employees.
That employers are intentionally violating the FLSA.
As I’ve written before, the idea of “wage theft” is a fraud. Employers aren’t intentionally stealing wages from their employees. They are struggling to comply with an 80-year-old law that is too complex for any employer to fully understand.
If you discredit the notion that employers are intentionally violating the FLSA by stealing wages from their employees, then the deterrence argument for awarding attorneys’ fees in FLSA cases goes out the window.
The FLSA is broken and needs to be fixed. A great place to start, instead of huge fee awards in wage-and-hour cases, is reinvesting that money back into education so that employers can begin to better understand their compliance obligations.
Otherwise, all we are accomplishing is lining attorneys’ pockets, which serves no one’s interest but theirs.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Son Isaiah, daughter Lydia and wife Jenna with Jonathan Flickinger, who died Dec. 28 in a car accident.
Our Workforce Game Changers are special people. They are the young shakers and movers who will be shaping people management for decades to come.
One Game Changer in particular really captured our attention in 2016. We saw Jonathan Flickinger as a unique talent — a background in law and an advanced certificate in strategic HR management from Cornell University just for starters. He was someone who “didn’t just get his foot in the door to begin his HR career — he kicked his way through it,” as writer AnnMarie Kuzel summarized in his Game Changer profile. It’s not surprising that Jonathan was tagged with the moniker “mixed-martial HR generalist.”
During the week between Christmas and New Year’s, I noticed an unusually large spike in page views for Jonathan’s 2016 Game Changer profile. Considering that web traffic is terribly slow at that time of year, out of curiosity I Googled his name.
My search revealed the stunning news that Jonathan died in a three-car accident while on his way to work on Dec. 28. Tragically, the story continued, Jonathan left behind his wife Jenna, a 3-year-old daughter and an 8-week-old son.
Just a month earlier, Jonathan started a new job as chief human capital officer for Quality Life Services, a home health care company in Butler, Pennsylvania, not far from his home in the Pittsburgh suburb of Bridgeville.
It was a well-earned position for him, especially after he endured much adversity in the 18 months since his recognition as a Game Changer. Jonathan was a lifelong resident of western Pennsylvania’s coal country. Working in that dying industry had its risks, which unfortunately struck when Jonathan was laid off after his selection to our Game Changers Class of 2016.
Workforce never had an unemployed Game Changer in the program’s history. Admittedly, his new work status gave us pause … for about five seconds.
Jonathan was a special talent, and despite the hard luck he remained a solid choice as a Game Changer. His versatility and command of his profession was further evidenced in an opinion piece he authored for Workforce on President Trump’s declaration to restore jobs to the ailing coal industry.
Following his selection as a Game Changer, former Workforce Managing Editor James Tehrani called Jonathan to hear firsthand what happened with his job situation.
Like a true HR pro, Jonathan did not fault his former employer. There was no bad blood, no sour grapes, no “woe is me” at being dealt a rotten hand, despite any worries he might have had about having to provide for a young family.
And while his former employer declined to comment, they said it was because of company policy and not because of our questions about Jonathan.
And now we learn of a much bigger misfortune — a car crash from which there can be no recovery. It’s hard to fathom why someone as talented and committed to his profession, community and family was tragically taken at just 34 years old. While we at Workforce and others who Jonathan touched through his work try to rationalize his death, the hard reality is that there remains a family coping with the loss every day.
I recently talked to Jonathan’s older brother, Christopher. “We’re all functioning,” he said of the family. As most big brothers would do, he proudly talked up his little brother’s achievements. He also recalled a conversation over the holidays. A growing family and finally a new gig in the profession he loved, Jonathan radiated with an air of satisfaction, Christopher said.
“He said, ‘I finally got everything I wanted.’ ”
Sadly, that world was shattered three days after Christmas. And while the family still grieves, Jonathan’s wife and children are struggling to get by. Christopher asked me to pass along that a GoFundMe page has been set up for them (search jonathan-flickinger-memorial).
Like many young families, Jonathan had no life insurance. His young family also has no health insurance benefits because he had taken the CHRO position just a month prior and insurance hadn’t kicked in yet.
“Perhaps your story would move others to donate, which would truly help Jenna, Lydia and Isaiah,” Christopher added.
In short, it’s an HR leader’s nightmare scenario. But if I have learned one thing about HR people, it’s that they live to turn adverse situations into something positive. Jonathan Flickinger was a positive force, a bright, shining beacon of HR’s future whose life and influence on the workplace ended too soon.
Jonathan always wanted to make a difference, his brother said.
Now it’s our turn to rally, to support the recovery of one young family from the HR community. To be game changers. Just like Jonathan.
Rick Bell is Workforce’s Editorial Director. Comment below or email editors@workforce.com.
Patty McCord’s new book, “Powerful: Building a Culture of Freedom and Responsibility,” focuses on how the high-performing culture at Netflix was formed.
Patty McCord’s approach to HR culture in the workplace inspires some and sparks irritation in others. Her co-creation of the Netflix Culture Deck, a key onboarding document for companies, still follows her around, which is why she felt it needed an “instruction manual.”
Her book, “Powerful: Building a Culture of Freedom and Responsibility,” focuses on how the high-performing culture at Netflix was formed — advocating complete honesty and using challenges as motivation rather than incentives. Workforce intern Aysha Ashley Househ spoke to McCord about the difficulties of applying unconventional changes and what advice she has for employees who want to approach their bosses with this idea.
Workforce: What was the most difficult thing about applying the unconventional changes to HR?
Patty McCord: It happened gradually, and that’s the part that’s hard for me to explain to people. They think that either I woke up one morning, or Reed Hastings, the CEO of Netflix, woke up one morning and went, let’s undo everything. Let’s just topple it over. And that’s not how it worked.
We had worked together at another company and we just wanted to do it different this time. We wanted to make a place that we wanted to work at. One of the first things that we did that was really important was we wrote stuff down. So that was how the Netflix Culture Deck came about. We used it as an onboarding document. We value honesty. If we find that you’re spinning the truth then that’s not going to work here.
I remember when we decided that we were going to not have a time off policy. We were going to say, ‘Look we’re going to measure results, not whether or not you’re here.’ And if it turns out the way everyone tells us it will turn out then we’ll throw it away and go back to the way everybody else does it.
And the other thing was we were doing those things while we were making Netflix. We’re already inventing something that nobody else had ever done.
WF: What made you realize a change needed to be made in the work culture?
McCord: It was when I just started examining the why of what we did. If I said why do we do the annual performance review? What’s the purpose of it? Well, it’s to give people feedback on their performance. OK, does that mean constructive criticism, which is negative feedback — which nobody wants to give. Or is it giving you feedback: Wow you’re doing a great job, keep doing that. It wouldn’t be very effective to do either one of those things only once a year; it’s too infrequent. And people don’t get very good at it because they don’t practice it.
WF: Can you talk about some mistakes and what you learned from them?
McCord: Our marketing person came one time to a meeting and she said we’ve been counting subscriber growth as our only metric for success and the real metric for success is how long do you stay with the service. It’s a subscription service, right? She’s like, so we’ve been measuring the wrong thing. We should’ve been measuring retention rather than growth. And I looked at the CEO and I said good thing we didn’t bonus her for growth. She’s the one that said we’ve been measuring the wrong thing. And that was because she was a high performing employee who was looking at the right thing for the customer, not how to make her bonus.
WF: What is one thing you want people to take away from the book?
McCord: The idea of questioning what you do. And being able to have a good, logical answer to why. When I talk with big corporations I say I’m OK if you decide the way you’ve always done it is terrific and it works really great at your company. Just decide. Don’t just do it because you’ve always done it. Do it because you’ve decided that it works. One other thing that I wanted us to do, particularly as HR people, is to stop speaking a language no one understands. It makes us sound out of touch.
WF: One of your main points is to motivate people through a challenge instead of using incentives. What made you realize this is the solution Netflix needed?
McCord: I started thinking about the bonus system. We were moving so fast that I honestly couldn’t come up with an annual bonus plan because I couldn’t figure out what needed to get done right at the end of the year, and I could be 50 percent wrong because we were inventing things as we went along. I spent my whole life around bonus plans. And I found that the time it took to write them, to communicate them, to administer them and to re-jigger them every time, was time that was wasted that we could’ve been getting the work done. If I said I want to fill the company with high performing employees who are really talented and get great work done on time, then why do I have to bonus them for it? They’re already going to do it anyway.
WF: You mention that this is defying convention and it was scary to do that. What made you take that risk?
McCord: It worked. And it was the people I was surrounded by. They were taking risks all the time. They’re experimenting all the time. And that’s how we created a service that I’m sure you love. Because we kept taking risks and experimenting with it.
WF: How did you convince your managers to allow for these practices?
McCord: Well, since we created the idea with the CEO and the other executive vice presidents, we didn’t have to do much convincing. Early on as we started to experiment, I remember someone saying, ‘You know, you and Reed should grow up and forget this idea of utopian workforce and start acting like a grown-up corporation. Those of us from real companies are waiting for you to do that.’ And I remember sitting down with her saying what you’re hoping for quite possibly won’t ever happen, we’re probably the wrong company for you.
WF: Then what advice do you have for people who need to convince their management?
McCord: Start small and come up with a business reason for doing it. And use business metrics. The annual performance review takes 100 percent of our employee base and an entire month to administrate. So you take the total payroll dollars, divide by 12, take one month’s worth, and say that costs us this much. And my hypothesis is if we did it in smaller increments over time, that we might yield better results. Can we carve off a group of people to experiment with it? And then look at results. So, you need to speak in a business language, you have to start with what you think the outcome will be, and then it’s not a whole fail overhaul. It’s just one thing at a time. And it’s as much about what you stop doing as what you start doing.
WF: Did you have any input in the TV shows created?
McCord: No, in fact that story in the book [‘Orange is the New Black’] from Ted is when I interviewed him for my book and I’d been gone for five years. But no, the people that owned the making of the content would be making those decisions. I wouldn’t have put any input into that. It wasn’t my job.
WF: I have to ask: What’s your favorite show on NetFlix?
McCord: If you ask me in a month I’ll tell you something different. As dorky as it is, I just finished up ‘Grace and Frankie’s new season because I wanted to make sure I had some quiet time to watch it. I’ve been binging a lot because I travel internationally, so I download a whole season and watch it from beginning to end. I did ‘Godless’ on my way back from Australia. I love the quirky stuff. My daughter and I just watched ‘BoJack Horseman’ over and over again for like … look at the magazine in the back of her car, it’s Cosmopolitan!
Aysha Ashley Househ is a Workforce intern. Comment below or email editors@workforce.com.
Kaiser Health News held a Facebook Live conversation Feb. 13 about living well with dementia, which is “one of the most challenging chronic conditions for individuals and their caregivers,” according to the health news site.
Although this conversation was more about the caregiver and individual as citizens, not as employees, I still found some valuable insights for employers. If none of your employees have this chronic condition, they could be caregivers for someone who does.
Since the aging workforce is a ubiquitous workplace topic nowadays (and, hey, so is chronic disease management and sandwich generation caregivers), it’s worth understanding that conditions like dementia, in most cases, happen after the age of 65.
Some background: the people in the Facebook discussion provided a wide range of points of view. Mary L. Radnofsky is a former professor who was diagnosed 12 years ago with dementia and now acts as an advocate for people with dementia. Yvotte Latty is a journalist and a professor currently caregiving for her mother who has dementia. Nancy A. Hodgson, Helen Kales and Katie Maslow are experts on dementia at the University of Pennsylvania, University of Michigan and Gerontological Society of America, respectively. That combination of personal experience and medical expertise made for a fascinating conversation.
One point the panelists stressed is that Alzheimer’s, the most common type of dementia, is more than just memory loss. It also means hallucinations, depression, anger and verbal abuse, according to Latty. It’s not like how pop culture often represents it. Movies and books like “The Notebook” or “Still Alice” don’t give people a realistic picture of what dementia looks like. It’s not a quiet, elegant, gradual loss of memory. “There’s nothing quiet about it. It’s been raging,” said Latty.
Radnofsky said that when a person has dementia and is acting in a way that society considers odd, it’s not because that person is trying to misbehave or be difficult. For example, if you tell them something and they throw something in response. “It’s because we’re trying to communicate,” she said, adding that if you’ve gone a decade of being misdiagnosed or misunderstood, sometimes your frustration levels might be high. “If you treat [it] like communication and not a behavior, things will go better in the future,” she said.
Finally, another point I found valuable is a discussion about caregiver challenges, especially isolation. In one example, the panelists said that in the case where a parent with dementia has multiple children, the child closest to the parent can end up being isolated even from their own siblings. Things like a family counseling program is one way to help siblings solve friction among one another.
Communication can also be a challenge for the caregiver, not just the patient. One panelist, both a caregiver and a doctor, talked about when patients lose the ability to communicate, they also lose the ability to advocate for themselves. The caregiver then becomes the main advocate for that patient, but even that can be tricky. The woman found that doctors did not seem to listen to her concerns until they found out she was also a doctor, and what helped her was that she knew the right things to get a response from health care professionals. There needs to be a way for caregivers to know the right language and terminology to use with the patient’s health-care team.
My takeaways for employers: If your employee is a caregiver, he or she could be dealing with social isolation, estrangement from family members, communication barriers/confusion and not knowing what terminology to use with the patient’s physician, among others.
If your employee has dementia or is beginning to show signs of dementia, remember a few things. It’s not just a memory disorder and there could be other symptoms. What you might perceive as poor behavior might be communication. And many of these people are still capable of performing many aspects of their jobs.
Hopefully this helps clarify some misconceptions of dementia. I know it helped me. Since I am not expert on the topic, here are additional resources on more practical steps employers could take moving forward if someone in their organization is impacted by dementia:
Dementia Response (Note: this includes a case study of an employer who found out an employee had dementia, the steps they took to offer accommodations and eventually the steps they had to take to ultimately terminate the employee.)
I may be the only diversity trainer who is often anti-diversity training.
It’s not because I don’t enjoy what I do. It’s not because I’m no good at it.
It’s because half the leaders who contact me for diversity training don’t need it. Thousands of dollars and dozens of hours are wasted every year on diversity training that has little impact — or makes things worse — because leaders make one of the following four mistakes.
You’re having a knee-jerk reaction to one or two people’s concerns. A nonprofit CEO contacted me for staff-wide training at the behest of her board because a person of color in a leadership position “made comments.” There was no evidence of other diversity-related problems and she was unwilling to elaborate on the comments (a problem in itself). As sexual harassment and overt white supremacy gain broader visibility, knee-jerk reactions fueled by heightened anxiety are understandable. But while feedback, especially from members of underrepresented groups, should always be taken seriously, taking them seriously doesn’t always mean all-staff training is the next step.
Instead: Engage in meaningful conversation with those raising concerns to identify wider patterns and get at the root of the problem. The root may be one manager’s leadership skills, or a flaw in systems or procedures. In such cases better accountability, clearer communication, leadership coaching or process change are the appropriate solution, not training.
You lack meaningful goals for training (or D&I in general). A corporate HR leader requested unconscious bias training to help the firm recruit and retain more people of color. Some stakeholders felt training was long overdue, while others saw no need and resisted efforts. After three years their diversity council had produced no strategic plan or D&I goals. Simply aiming to recruit and retain “diverse people” is an “old school” approach to D&I that doesn’t work, especially when buy-in is low among key stakeholders. Trainers are limited in their ability to create staff buy-in; this must come from leadership.
Instead: Identify your strategic, mission-critical goals for D&I. Diversity is not a strategic goal, it’s a strategic means to an important end the organization already cares deeply about. Having strategic D&I goals enables leaders to identify the barriers to achieving them. Identifying the barriers equips leaders to break them down effectively and efficiently — and may not require staff training. Also, defining why recruiting and retaining more people of color (or whatever the goal) is necessary to organizational success creates buy-in for training — when the time is right.
Your leaders aren’t holding people accountable for poor behavior. A leader contacted me for diversity training because a manager was making disparaging comments about Limited English Proficient staff. There were no other concerns raised by staff or complaints about other managers. Training would be a waste of time for everyone not doing inappropriate behaviors, and would not have gotten at the heart of the one manager’s issues.
Instead: Determine whether the person engaging in poor behavior knows what is expected of them and has the knowledge and skills necessary to deliver. If they do, only consistent accountability from their leadership will solve the problem. If they don’t, individual mentoring or coaching may close the gap, along with an exploration of the organizational breakdown that allowed the gap to occur in the first place (or go unaddressed).
Your effective processes or previous trainings aren’t hardwired. A top leader in an educational institution contacted me for training to help create a more inclusive environment. Six months before, they’d engaged another trainer whose content was robust, aligned with their goals and applicable to their culture. The school had also invested a great deal of time in creating protocols to increase equity in faculty hiring. However, there had been no post-training implementation plan or follow up from leadership. The hiring protocols weren’t being used consistently and there was no clear procedure or accountability for doing so.
Instead: Rigorously implement and follow up on identified action items following any training or new procedure rollout. This requires effort up front, but pays off over time in meaningful, sustainable behavioral and organizational change. Investing in more training is a waste of resources and communicates to employees that training and process changes don’t have to be taken seriously.
Training only solves a problem when the problem is lack of essential knowledge or skills. Providing training with no solid foundation for success or when training isn’t needed is poor stewardship of your organization’s resources. It also sets up your D&I efforts to be disregarded as the strategic priority research demonstrates they are.
However, diversity training can be highly effective when:
You know where your organization is. What are your strengths and weaknesses (in general, not just D&I)? What do your employees and customers say about you? Who is saying what?
You know where you want to go. What’s the pressing problem you need to solve as an organization, or how do you want to go from good to great?
An increase in staff or leadership awareness, knowledge and skills is key to getting you where you want to go.
Engaging a skilled diversity trainer that’s also a competent consultant – whether external or internal to your organization – is vital to the mindful planning that will get you D&I results that matter. Don’t fall into the traps of quick action out of fear or treating D&I as anything less than the strategic priority it is.
Susana Rinderle is president of Susana Rinderle Consulting and a trainer, coach, speaker, author and diversity & inclusion expert. Comment below or email editors@workforce.com.
” ‘E’s not pinin’! ‘E’s passed on! This parrot is no more! He has ceased to be! ‘E’s expired and gone to meet ‘is maker! ‘E’s a stiff! Bereft of life, ‘e rests in peace! If you hadn’t nailed ‘im to the perch ‘e’d be pushing up the daisies! ‘Is metabolic processes are now ‘istory! ‘E’s off the twig! ‘E’s kicked the bucket, ‘e’s shuffled off ‘is mortal coil, run down the curtain and joined the bleedin’ choir invisible!! THIS IS AN EX-PARROT!!”
The employee, Joseph Buck, worked as a machinist for Mercury Marine. He also had a dog, which, on May 26, 2014, he had to put to sleep. That day he called his supervisor and asked for a vacation day (which was granted) because of how upset he was.
The next day, Buck called again and explained that he had not slept since the loss of his dog and would not be able to work. Mercury Marine considered that absence unexcused.
That same day, he sought treatment at the ER and was diagnosed with “situational insomnia,” which a nurse documented in a note that Buck presented to his employer. Despite the note, the absence, and all others over the next three months, were considered unexcused.
Ultimately, Mercury Marine terminated Buck for accumulated unexcused absences, and he filed suit under the FMLA.
The district court dismissed Buck’s FMLA claim, concluding that while inability to sleep caused by the death of a pet could potentially constitute an FMLA-covered “serious health condition,” Buck had failed to show that his condition met that definition.
A serious health condition entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility.
Continuing treatment means a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition.
The court concluded that because Buck’s treatment met neither prong of the definition of a “serious health condition,” the FMLA did not cover his absences:
The record contains no evidence that the plaintiff sought, or obtained, medical attention for the insomnia, other than his one visit to Nurse Baseley—no prescriptions, no treatment reports, nothing…. The nurse’s letter does not categorize the insomnia as chronic, or say whether she expected it to continue. There is no evidence to support the plaintiff’s statement that he had been suffering from intermittent, shift-related insomnia for months.
This is not to say that an employee can never qualify for FMLA leave following the death of a pet. It just means than an employee’s resulting mental condition must otherwise meet the FMLA’s definition of a “serious health condition.”
One more thing. If an employee is that broken up about losing a beloved pet, do what Mercury Marine did in this case, and grant the employee a day to recover. You’ll be a better employer for it.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
This meeting violates one of the cardinal rules of terminating an employee:
