It’s a situation that plays out all too often. An employee emails a slew of documents to a personal email address, or drags them into a personal Dropbox, or copies them to a stick drive.
Your first instinct is to assume that the employee is engaged in something nefarious, fire the employee, and even sue for misappropriation of trade secrets/confidential information.
But might there be something else going on? What if, instead of competing against you, the employee is preparing to go to battle against you in a discrimination lawsuit?
Does an employee have a right to copy your documents to prepare a discrimination lawsuit?
Not surprisingly, the answer depends.
In examining the issue, courts balance an employer’s legitimate and substantial interest in keeping its personnel records and agency documents confidential against the employee’s alleged need for surreptitious copying and dissemination of the documents.
In balancing these two competing interests, courts generally apply the following six factors to determine whether the surreptitious copying qualifies as legitimate protected activity or illegal misappropriation.
How did the employee obtain the documents?
Was it accidental or in the course of their job duties?
Or did they rummage through files or snoop around offices for documents?
To whom did the employee produce the documents?
To their attorney?
Or to coworkers?
How strong is the employer’s interest in keeping the documents confidential?
Do they contain trade secrets, or other confidential information, or PII such as social security numbers or medical information?
Or do they contain non-confidential information?
How did the employer discover the misappropriation?
Did the employee volunteer the information as part of the lawsuit?
Or did the employer discover it on its own?
Did the employee violate a company policy by taking the documents?
What do the employer’s privacy and confidentiality policies say?
Does the employee have an ability to preserve the evidence in a manner other than copying hte documents?
Can the employee merely describe the content of the documents to his or her attorney?
So, the question then becomes, if you catch the employee red-handed with purloined documents, what should you do? Often, it’s fire now/ask question later. And court generally support this plan of attack.
For example, in O’Day v. McDonnell Douglas Helicopter Co., the 9th Circuit held that an employee actions in rifling through his boss’s desk the evening after being denied a promotion was not protected, even though he claims to have been looking for evidence of age discrimination.
In balancing an employer’s interest in maintaining a “harmonious and efficient” workplace with the protections of the anti-discrimination laws, we are loathe to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation. The opposition clause protects reasonable attempts to contest an employer’s discriminatory practices; it is not an insurance policy, a license to flaunt company rules or an invitation to dishonest behavior.
This is not to say that every instance of an employee copying confidential or other company documents to preserve potential evidence of discrimination is not protected. But it does mean that employees climb a steep hill in making this claim, especially when there are less self-help-y avenues to achieve the same goals (retaining counsel, who send a preservation letter to the employer).
So what should you do if you catch an employee copying documents? First, call your employment lawyer. Then, based on O’Day, Niswander, and other cases, rest comfortably that courts generally disfavor self-help, and unless there is something inherently protected in the act of copying itself (only documents relating to alleged discrimination are copied, documents are emailed by the employee directly to counsel, are they snooping or sending documents they already have), then you are probably (but not certainly) protected in terminating the thieving employee.
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.
Occasionally I get to write feature stories for Workforce’s sister publication, Talent Economy, and the most recent assignment is on the topic of diversity (or lack thereof) in entrepreneurship.
A lot of my findings and interviews I’m saving for the article itself, which comes out later this year, but there was one benefits-related piece of information that I’d like to share with you today in Working Well.
A November 2017 story in Black Enterprise shed some light on some interesting trends in the entrepreneurship/small business space. First, women of color are the fastest-growing segment of the country’s economy, and a recent poll found that 56 percent of female entrepreneurs find access to birth control a vital health benefit for them because it allows them to decide:
A) If and when they want to have children.
B) To advance their careers and start their businesses without that responsibility.
What do you think? As HR professionals, do you feel like there are certain benefits that would make entrepreneurship and small business ownership a more attainable goal for an underrepresented group in the entrepreneurship community? Maybe women, or a certain race, or a certain age group, or a certain geographical region. Feel free to share your thoughts with me in comments section below or at my Twitter handle, @andie_burjek.
Not only do entrepreneurs value certain benefits, but they can impact the benefits landscape. I recently spoke with Marion McGovern, the author of Thriving in the Gig Economy, about baby boomers’ participation in the gig economy. She also informed me about benefits and how entrepreneurs are stepping up to fill the gaps for gig economy workers who do not have access to benefits. What policymakers aren’t addressing yet, some entrepreneurs are.
She gave a few examples of these entrepreneurs. ShiftPixy is focused on low-earning shift workers in restaurants like busboys or servers. These people have difficulty getting benefits for a variety of reasons, for example because they do not get enough hours to qualify for benefits. Using this app, employee could take shifts at more than one restaurant and work enough hours at various places to qualify for benefits as a ShiftPixy employee.
“[The restaurants] are willing to pay more to take that administrative burden off them,” said McGovern. “Meanwhile, the employees get benefits and get to schedule shifts that work for them.”
She mentioned a few other companies that aim to get benefits to employees who don’t have access to them — Stride Health, Honest Dollar and Bunker Insurance, among others.
“The marketplace isn’t reacting traditionally. And it’s not the policymakers or regulators [but the] entrepreneurs out there who are saying, ‘There’s friction out there in the marketplace. Let’s get rid of some of it.’ That’s very empowering,” said McGovern.
I don’t know much about these companies, but it is fascinating that they’re stepping up to try to solve this problem. It’s something that’s not going away anytime soon. As more people rely on contingent work, how they will they access benefits becomes more important. Contract work is booming, and 32 million Americans earn their living that way, according to a recent NPR article.
And this trend is expected to accelerate over the next decade. This “raises big questions about the future of the safety net,” the article said. “According to a [NPR/Marist] poll, 51 percent of freelance and contract workers do not receive benefits common to many full-time jobs — sick leave, unemployment insurance or retirement savings.”
As more entrepreneurs, small-business owners and contract workers find themselves lacking in benefits, it’ll be interesting to see what solutions come about to fill that gap.
Andie Burjek is a Workforce associate editor. Comment below or email editors@workforce.com.
Wile E. Coyote. Forever chasing the Roadrunner. Always ending up falling off a cliff or crushed under a giant boulder.
Noncompete litigation. Sometimes you win an injunction. Sometimes the court drops a big boulder on your head.
Suppose after leaving your company, an ex-employee begins soliciting his former co-workers to join him at his new venture. That employee had signed the same non-competition agreement as each of your other 13,000 employees, which, among other things, prohibits him from directly or indirectly soliciting, inducing, or encouraging any employee of Manitowoc Company to terminate their employment or to accept employment with a competitor, supplier, or customer.
So, you do what many employers do in this situation. You sue the ex-employee to enforce the agreement.
In The Manitowoc Company v. Lanning [pdf], the Wisconsin Supreme Court dropped the biggest boulder possible. It not only ruled in the employee’s favor, but it found the agreement to be unreasonably over broad as drafted, and invalidated it as to all of Manitowoc’s 13,000 employees.
The plain language of Lanning’s non-solicitation of employees provision creates a sweeping prohibition that prevents Lanning from encouraging anyManitowoc Company employee, no matter the employee’s job or location, to terminate his or her employment with Manitowoc Company for any reason, or soliciting any Manitowoc Company employee to take any position with anycompetitor, supplier, or customer of Manitowoc Company.
Lanning does not have specialized knowledge about all of Manitowoc Company’s 13,000 world-wide employees across both its construction crane and food service equipment divisions. Lanning does not have a relationship with every Manitowoc Company employee. Yet Lanning’s non-solicitation of employees provision prevents him from encouraging any Manitowoc Company employee to terminate his or her employment.
A national company with more than 13,000 employees now has an agreement that it can never enforce against anyone.
What lessons can employers learn from this case? Post-employment covenants are necessary tools that all employers should have in their shed. Employers, however, must use narrowly drafted agreements that only reach those legitimate interests worthy of protection. And, if there is no such interest, consider foregoing an agreement at all. Otherwise, you might end up spending lots of money in court in a vain attempt to enforce an unenforceable contract.
Or, worse yet, a court might just drop that boulder and invalidate that agreement for all of your employees.
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.
Harsh dose of reality aside, Walmart has officially moved the needle on both minimum wage and paid family leave. And other employers are going to have to react.
To compete in the job market against Walmart, other companies will have to begin voluntarily offering a higher minimum wage and paid family leave. Thus, over time, they will spread to most employers nationwide.
Bravo, Walmart. You have now done more for worker rights than our federal government.
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.
Chicago-based corporate benefits provider Maestro Health was acquired by French multinational insurance firm AXA Group.
Maestro Health made a colorful splash at the 2016 HR Technology Conference in its hometown of Chicago. The company was acquired by international insurance giant AXA Group on Jan. 22. Photo by Rick Bell
The move by AXA, the world’s 42nd largest health care brand, appears to be its formal entry into the U.S. health care space. The deal, which was announced Jan. 22 and must go through regulatory approval, was completed for $155 million, according to published reports.
AXA’s acquisition of Maestro supports AXA’s payer-to-partner strategy in line with its “Ambition 2020” corporate initiative, according to a joint release.
“Not only is this the optimal step into the next phase of Maestro Health’s history, it’s also the ideal partnership to reinforce our all-in, continuum of care model — and ultimately transform health care as we know it today,” said Rob Butler, CEO and founder of Maestro Health. “With the scale and resources of one of the most recognizable brands in the world, we are well positioned to expedite our mission to lower health care costs, reduce complexity and empower the consumer more than ever before.”
Once the acquisition is final, Maestro Health will maintain its identity, mission and team, while operating as a wholly owned subsidiary of AXA, Butler said.
“It was critical for us to maintain our culture, brand and innovative identity, yet find a true partner with the unique combination of AXA’s scale, like-mindedness and industry prowess — a synergy that can appeal to all of our current customers and channel partners,” Butler said, adding that AXA and Maestro Health share the same vision and passion. “We both believe there is great opportunity to positively impact the U.S. health care system. With the scale and resources of one of the most recognizable brands in the world, we are now well positioned to expedite our mission to lower healthcare costs, reduce complexity and empower the consumer more than ever before.”
Namely CEO Matt Straz.
Matt Straz, founder and CEO of HR software company Namely, believes there is more consolidation ahead for companies in HR technology. The Maestro deal could be the first of many deals in 2018, he said.
“Look no further than ADP’s acquisition of WorkMarket, also announced (Jan. 22),” said Straz, whose company was targeted for acquisition by Google in 2016. “Platforms that focus on these core areas — HR, payroll, and benefits — are most likely to be the acquirers — and with dozens of funded HR SaaS startups out there, we expect to see more acquisitions of focused point solutions.”
Butler agreed, adding that the industry is at a tipping point and employers and employees can no longer afford the rising costs of employee health and benefits.
“They are looking for flexible and innovative solutions to assist them,” Butler said. “Those companies that can adapt and execute on the new realities of the health care marketplace will win, and we believe we are well positioned to make an impact.”
Limeade CEO Henry Albrecht.
Henry Albrecht, founder and CEO of Limeade, a Bellevue, Washington-based employee engagement company, sharesOak HC/FT as an investor with Maestro. He said they’re happy to see other true disruptors expand the scope of their impact.
“All of the cash-rich health care companies — SAP, Oracle, Workday, Google, Microsoft and other top-of-the-food-chain companies — need three things more than all else: innovation, growth and different ways of looking at markets,” Albrecht said. “The point solution providers are getting gobbled up by private equity companies and apex predators in their respective food chains. Every element of the Fortune 500 HR and benefits ecosystem will be reinvented in a consumer-centric way. This is just one more example of that.
“Maestro and other companies are making incredible progress on the transactional side of employee experience. A home with a global leader like AXA makes sense. On the more immersive, longitudinal and cultural side of the HR equation, Limeade and a handful of other employee engagement companies are also bringing unique innovations to the market.”
With AXA, Maestro Health customers will see enhancements in their experience and access to leading product offerings, according to the release. Additionally, Maestro Health will continue to focus on delivering new and improved solutions and services to the market, designed to further reduce health care costs and improve engagement for constituents across the entire continuum of care, the release stated.
“We are excited about this strategic investment. It provides an attractive opportunity to build our presence in the U.S. health care market with a new business model that has the potential of improving health care quality for millions of employees,” said Guillaume Borie, chief innovation officer at AXA. “Maestro Health has outstanding technology, assets and people, an agile organization and a close-knit culture, providing exciting prospects for our population health management strategy in the U.S. market and beyond.”
Maestro is a relatively young benefits enterprise company, having been founded by Butler in 2013. The company made its first big splash on the HR technology scene in 2016 at the HR Tech Conference in Chicago. Butler talked up Maestro’s culture at the event. His candor was refreshing in an industry where honesty is in short supply.
“People have plenty of options in this space,” he said. “Our culture is the difference maker. We’re going to make mistakes; everyone does. But we’re going to service our customers and exceed their expectations. Employers simply want the truth.”
Maestro Health currently serves more than 500 groups and 1 million lives on its maestroEDGE platform. Maestro counts more than 300 employees, it has also been recognized with some of the industry’s most prestigious awards and accolades, including Great Places to Work Institute’s “Great Place to Work,” and ChicagoInno’s “Coolest Companies.” It was also named bronze winners in the American Business Awards “Most Innovative Company of the Year” and “Tech Startup of the Year.”
“Joining forces with AXA will undeniably make us a better and stronger company not only for our customers, but also for our employees,” added Rob Butler. “People and culture are at the core of what we do, and I am thrilled about this next chapter as it is the perfect long-term scenario to keep the team together and accomplish our mission in the U.S. healthcare market and beyond.”
Triple Tree acted as the exclusive financial adviser to Maestro Health for this transaction.
Attorney James Patrick Stanton, accused of secretly videotaping nude and partially clothed female employees of a Tampa company, has agreed to never practice law again in Florida.
Before a brief hearing today, Stanton signed a consent to disbarment. …
Among those expected to testify at the hearing was former MaintenX employee Jeremy Lenkowski, who was repairing Stanton’s laptop in 2010 when found the videos. …
After leaving the company in 2014, Lenkowski turned the videos over to Tampa police, who arrested Stanton on 123 felony counts of video voyeurism. Prosecutors reduced the charges to misdemeanors, and a judge dismissed them altogether after Stanton’s lawyers argued that the statute of limitations had expired. …
In 2014, five “Janes Does” sued Stanton, MaintenX and other defendants in Hillsborough County Circuit Court. A Tampa attorney representing the women, Steven Parker, said today that the claims against Stanton had been settled confidentially but that neither he nor the women could comment.
And while this is all very disturbing, it’s what I omitted that earns Stanton’s employer, MaintenX, its nomination:
In a lawsuit he later filed, Lenkowski said he told top MaintenX executives about the videotapes but said nothing was done by the company except to remove the cameras and instruct Stanton to get counseling.
If your learn an employee has secretly videotaped women showering, going to the bathroom, and changing clothes at work, and your only reaction is to remove the cameras and send the employee to counseling, you might be the worst employer of 2018.
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.
On any given day an employee will be bombarded by hundreds of communications. There are emails, voicemails and old-school snail mail.
Slack messages pop in from customers, clients and co-workers. There are companywide communications about everything from new employees to doughnuts in the break room. At the same time there are texts from the parents about whether the dog will like its new plaid pajamas and friends asking about dinner plans via Snapchat and Facebook.
Not only are employees still expected to do their jobs through this glut of information, they’re also expected to make decisions on employer-sponsored benefits. These potentially life-altering choices on health care and retirement, employee assistance and wellness programs and even pet insurance can be complex and leave many employees confused, anxious and lacking in information.
Increasingly, HR is discovering how much communication is too much, which can leave practitioners in a dilemma when they are restrained to just a few messages to convey important information. Although difficult, it is possible to tame this delicate balance of giving employees the necessary information without overwhelming them. At a certain point, even the most vital information can become white noise, just another of 300 or so messages per day, and go undetected and ignored.
Reaching employees and engaging them in today’s always-on world is one of the key challenges that organizations have, according to Keith Kitani, CEO of GuideSpark, a software company specializing in employee communication. Part of the problem is that employees are accustomed to consuming information in a certain way in their personal lives, through short, digestible and sometimes video-based messages. Corporate communication hasn’t risen to this new bar. “Companies are competing with employees’ personal lives now,” said Kitani.
Also, many employers will send communications such as emails or newsletters with too much information, and not all of it may be relevant to an employee at a given point in time, he added. “In a noisy world, you have to think about relevance,” he said. “As more organizations think about communicating, the more they can figure out how to deliver shorter, targeted messages with relevant information.”
This may not be the company’s initial instinct, he said. Many times, companies will have an important message to send employees and they’ll tack on other less important messages. An employee may file away a piece of irrelevant information for later and never get back to it.
“The world is so noisy now,” said Kitani. “The reason you file away is you’re getting hit with so many pieces of information, and you pick the one that’s the most relevant and consume that one, and forget the one you weren’t ready to consume.” Being able to focus on one clear, concise focused message would serve companies better, he added.
Understanding the Value Behind Your Benefits
One area in the workplace in which communication is especially important is benefits, whether that communication is about open enrollment in the fall or a different topic during the rest of the year.
Two out of three employees said that making sense of benefits is complicated, and 75 percent said that there is some part of their benefits coverage they don’t understand, according to a recent Aflac survey of 5,000 employees.
Kevin McNamara
In the health care space, “a lot of employees miss key information that comes out in advance of open enrollment, and they suffer for it in the next plan year,” said Kevin McNamara, senior enrollment strategist at The Standard, a Portland, Oregon-based insurance company. Only 8 percent of employees update their workplace benefits during open enrollment, according to the Aflac survey. The same survey found that 80 percent of people spent less than an hour researching and reviewing their benefits options.
Considering the complexity of benefits, one strategy of employee communication employers can use is being clear on the philosophy behind the benefits program from the very beginning, said Michele McDermott, senior vice president of human resources at Assurance, an insurance company based in Schaumburg, Illinois. “We share with employees the ‘why’ behind our programs, which then makes understanding the ‘what’ so much easier,” McDermott said.
For example, the company only offers a high-deductible plan with a health savings account. “We only offer the HSA because we believe in consumerism. That’s our philosophy,” she said. When the company shares that ‘why,’ it helps the employees to buy into that ‘why’ and to understand important questions like ‘What is an HSA?’ ‘What do I need to know?’ and ‘How do I use it?’ ” she added.
Explaining the “why” helps when communicating company information in the broader sense as well, according to Kitani. With any business message, if you don’t tell them that “why,” employees often won’t consume the information. He suggests following the “inspire, inform, reinforce” strategy. Start by telling the employees why it’s important to them, then tell the information.
Unfortunately, companies forget to reinforce, he added, and that can ruin a great communications strategy.
Considering the demographics of the workforce also helps guide a strategy in the right direction, according to Mark Johnson, founder and CEO of benefits management company Creative Benefit Solutions. Demographics are one prong of his four-prong strategy.
The other three prongs include creating a yearlong strategy that educates employees on the benefits offered, making the most of technology, and using social media efficiently. Together, these can help employees get the information they need to understand and find value in the plan.
Using social media is especially valuable at the start of the strategy before employees have questions, said Johnson. This can be done through usual channels like Twitter, Facebook and LinkedIn, but businesses should also consider having an internal benefits blog in which employees could have the chance to comment and ask questions, he said. The company’s consultants and benefits team could be involved so that people get the correct information.
Johnson suggests taking a quarterly approach to benefits communication and breaking that information into bite-sized chunks. A company might take one of these pieces to focus on a highly utilized benefit, such as health care or retirement, and focus on educating employees how to use that benefit as a consumer.
It might use another time to focus on an underutilized benefit. For example, it might have a workforce with many millennials who do not participate in a flexible spending account. “Target those specific nonparticipating members to try to see the value in that benefit,” Johnson said.
Alternatively, a company may have employees who sign up for extra benefits they don’t need, he added. They may end up choosing a benefit plan with a higher premium solely based off the perception that it’s the best plan for them and end up spending a lot of money on something they’re not using.
Striking that balance between cost and quality of benefits can be tricky, said Johnson. Even if employees understand the content, knowing the value is another vital piece that is sometimes not considered.
An Increasingly Complex Future
Communication is getting more complex as the types of communication increase. Looking toward the future, Kitani suggests that employers begin to think of communication as part of the employee experience, as it’s the way that employees interact with the company and the programs it offers.
“Everything has been fairly decentralized and inconsistent. A company may use different vendors like Fidelity and Aetna, and it may use different departments,” Kitani said. “One of the things [employers] should think about is how does this [communication] deliver a culturally consistent employee experience?”
Assurance already does this. The company coordinates any communication going to employees through one central internal communication person or function, said McDermott. By coordinating in this way, one party has control over the types of messages and the number of messages that go out, and employees have a center point they can rely on.
Even with this control, employees at the company still sometimes find they’re receiving too much information to take in, she added. For example, many employees are confused about events like technology changes and benefits communication. The company will consider the amount of communication going out, and if it gets to the point where it’s too much, then they’ll focus on communicating for a more current project rather than adding something else unnecessarily, said McDermott.
Don’t be afraid to delay a project, she added. Sometimes it’s necessary so not to overwhelm employees with information overload.
Having more demographics in the workforce than in times past also poses a challenge in terms of the modes of communication a company chooses, and this mix of demographics in most places isn’t going anywhere anytime soon.
Some people prefer information communicated to them via mail, others through text messages, and others through one of the many alternative options including email and social media, according to Heidi Guetzkow, national program manager, health risk solutions at Lockton Benefit Group.
“More than ever before, companies have to spend more time thinking about those complexities and planning for it and coming up with a solid strategy in order to best reach their employee population,” said Guetzkow. Recent changes in the health care landscape have also muddied the waters for how employers strategize their communication plan moving forward. With the introduction of the Affordable Care Act, the increasing trend of high-deductible plans and growing use of supplemental insurance, some employees don’t understand their new options, according to The Standard’s McNamara. These employees are starting at zero, he added.
“The challenge is employees who have worked 10 or 20 years at a job may really understand dental, life and disability insurance, but some of these plans they’ve never heard of before,” said McNamara, because the need wasn’t as present in the past. Employers could consider decision support tools that help employees navigate their new realm of options, including supplemental plans like critical illness and accident insurance, he added.
He cited new innovations in the decision-support tool area. The Standard, for example, did a study with employees to understand their decision-making process and how they like to learn, then developed a tool; one option of many.
“Through our analysis we build personas based on these segments of employees and their behaviors of buying benefits,” said McNamara. By asking six simple questions, the decision-support tool labels the employee with a persona and presents the same content but presented in different ways to reach different types of people. The goal is to engage employees in the first few lines and make them feel like the message is speaking to them personally.
“Maybe now instead of fading out after the first paragraph or page, they’re actually engaged, making it to the end and getting the key information they need to know,” said McNamara.
Andie Burjek is a Workforce associate editor. Comment below or email editors@workforce.com.
James Tombeno worked for FedEx for 22 years as a sales executive. At the time of his hire, Tombeno signed an agreement that required him to submit to drug and alcohol testing upon FedEx’s request.
FedEx required Tombeno to submit to a drug screen after his supervisor smelled marijuana in Tombeno’s work vehicle. When Tombeno refused, FedEx fired him.
The court had little difficulty dismissing Tombeno’s claims of discrimination (age and sex), as well as his claims for hostile work environment harassment, retaliation and breach of contract.
Why did this employer win? Beside the fact the employee refused to take a required drug test, the employer had a policy, to which the employee agreed, that defined when a drug test could be required and the consequences an employee would suffer upon a failed or refused test.
What are some considerations for your workplace drug testing policy? Here are five thoughts:
What is the scope of your policy? When are employees expected to be drug-free? At work? Away from work? How many strikes are employees allowed (i.e., is your policy zero tolerance)?
Under what circumstances can you test employees? Pre-employment (allowed by the ADA for illegal drugs)? Reasonable suspicion (if you reasonably believe, based on objective factors, that an employee might be under the influence)? Periodic or random (but, note that random does not mean at your whim; you need a process to ensure bona fide randomness)? Post-accident (provided there is a reasonable nexus between the accident and potential impairment)?
What are the consequences for failure? Your policy should expressly state the consequences of a positive drug test, or a refusal to submit to, or complete, a test (i.e., termination of employment).
Do you offer resources for employees upon a failed test? The ADA does not protect employees who are under the influence of an illegal substance while at work. Nevertheless, addiction is an ADA-protected disability. Offering assistance to an addicted employee (EAP services, unpaid time off for rehabilitation) will satisfy an employer’s reasonable accommodation requirements for employee-addicts who are not impaired at work.
Do you ensure confidentiality? Drug-test results are medical records protected under the ADA’s confidentiality requirements, and should be treated as such.
The one thing you should not do is drug-test employees without a policy protecting both the act of the drug test itself and any employment actions you take against employees as a result.
If you don’t have a workplace drug testing policy, or aren’t sure that yours is up to snuff, I may know an employment lawyer who’d be happy to draft or review for you.
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.
Faced with a red-hot job market, employers are offering perks like free ski passes, complimentary e-readers and on-site acupuncture to attract and retain quality employees.
These benefits are certainly fun and may help attract top talent. Certainly, some people may jump at the chance to work at a firm that offers in-house yoga and spin classes. But there are organizations where once the luster wears off, employees begin to see that these benefits are simply camouflage over a toxic work environment.
They speculate that such perks are provided simply to entice employees to never leave as opposed to rewarding them for jobs well done. Catered lunches and dinners might make employees think that leaving the office for meals is frowned upon, while free trips cause skeptical workers to question whether they’ll be able to make their own vacation plans or do as the company dictates.
Workplaces with low employee morale see constant churn, and right now, the number of U.S. workers quitting their jobs is the highest it’s been in more than a decade. Seven in 10 American workers are not engaged in their jobs, according to Gallup’s recent “State of the American Workplace” survey.
Given today’s robust job market, employers must work to develop positive, healthy workplaces that entice top talent. Dedicating resources to the benefits that matter most — competitive compensation and respect for a healthy work-life balance, to name just two — will help ensure that workers join the right firms and stick around.
So how can businesses build and sustain a positive culture? It starts the day they receive a prospective hire’s résumé.
Promote Timely Hiring Practices
Many businesses drag out the hiring process and make prospective hires fret for weeks after they take an interview. That rubs applicants the wrong way. In a survey of 1,000 U.S. adults by my organization, Robert Half, 40 percent reported that waiting just one to two weeks after an interview for an offer was “too long.”
This lengthy hiring process causes 40 percent of U.S. adults to lose interest in the role and pursue other job openings, according to the same survey. Nearly 1 in 3 adults reported that a lengthy process makes them question the company’s ability to make other decisions.
It’s imperative for employers to put their best foot forward the moment an applicant submits a résumé. Managers should interview all candidates on-site and make sure that everyone who needs to meet with the applicant is available that day. Employers should also offer applicants a chance to see the office and meet their potential co-workers, which allows candidates to quickly assess the company’s culture for themselves.
After the interview, employers should let prospective hires know when they can expect to hear back. If there’s a delay in the decision-making process, employers should update candidates as soon as possible.
These simple courtesies go a long way in ensuring that prospective hires feel wanted and respected, which increases acceptance rates and builds goodwill.
Focus on What Matters Most to Workers
Employers also must make sure that they’re giving employees what they want. Workers aren’t as interested in extravagant perks as employers may think.
According to a survey by software firm Qualtrics and venture capital firm Accel Partners, 80 percent of millennials rank in-office perks as the least important benefit when considering a new job. The same survey found that millennials want a workplace that fosters a sense of pride and offers competitive compensation, a positive culture, opportunities to advance and flexible hours.
Getting the Fit Right
According to “The Secrets of the Happiest Companies and Employees,” a survey of 12,000 workers by Robert Half in collaboration with engagement-analytics company Happiness Works, the biggest factor affecting worker happiness is the sense of pride an employee takes in their job. Workers who share a company’s vision derive more meaning, satisfaction, and happiness from their jobs than employees who see their work as a mere paycheck.
But employees also want competitive compensation, and they want their managers to be proactive about giving it to them. Ninety percent of workers think they deserve a raise, but only 44 percent planned to ask for one in 2017. In fact, many professionals would rather be cleaning their house, getting a root canal or being audited by the IRS before asking for a raise.
Given this hesitancy, employers need to be proactive. They should clearly communicate guidelines for raises and they should be more vigilant about ensuring that they’re paying competitive salaries. It’s no longer enough to compare salaries once a year. In today’s job market, employers should strive to cross-compare salaries at least twice a year, if not quarterly.
To that end, managers also should set up meetings with their employees to discuss compensation. These meetings can help professionals understand the factors affecting compensation levels and the steps needed to earn a raise.
Recognizing workers’ successes with consistent compliments and encouragement costs managers nothing but makes employees feel valued. In fact, nearly 1 in 2 employees ranked management’s recognition as “very important” to their job satisfaction, according to a survey of 600 U.S. employees by the Society for Human Resource Management.
Workers also want an opportunity to climb the company ladder. Prospective hires consider advancement as one of the chief considerations of taking a job, according to that same SHRM survey.
Finally, a company culture that gives employees the flexibility to attend to their private lives is of high importance to employees.
More than half of workers are willing to change jobs for a position that offers more flexible working hours, according to the Gallup survey. This is understandable, given that today’s workers spend an average of 49 minutes commuting each day, according to my company’s research.
Businesses can offer this work-life balance by allowing telecommuting where it makes sense and bringing in project workers when the core team is overwhelmed.
Following these guidelines would do wonders to attract and retain workers as well as boost employee happiness.
The Benefits of Happy and Engaged Workers
When employees are invested in their work and committed to doing their jobs well, company productivity also improves. According to the Gallup survey, business units that score in the top quartile of their companies on measures of worker engagement experience 41 percent less absenteeism compared to the lowest quartile of units. They are 17 percent more productive. These companies also are 21 percent more profitable, the survey noted.
Happy and engaged workers are also considerably less likely to leave their jobs, thereby reducing turnover-related costs.
By comparison, when workers are not engaged, the company’s bottom line suffers. One disengaged employee costs his company more than $2,200 per year, according to a study by ADP. That equates to hundreds of billions of dollars overall.
At a moment when talented employees are increasingly hard to come by, attracting top talent requires more than quirky company perks. Businesses need to invest in creating the kind of workplace culture that supports happy, engaged employees.
If they don’t, their most valuable workers will have no trouble finding the exit no matter how many trips to posh Caribbean resorts they are offered.
Paul McDonald is the senior executive director at global staffing firm Robert Half. Comment below or email editors@workforce.com.
Last year, I tracked the stories of 23 employers, the behavior of which was less than exemplary.
From the list of 23 potential nominees, I was able to whittle it down to these four finalists. As much as I would like to say that these stories are fiction, or that I exaggerated facts for dramatic effect, each is a real news story or real case filed in a U.S. court of law.
The Cancerous Boss: An employee received the unfortunate diagnosis of kidney cancer and required immediate surgery to remove the tumor. As a result, she asked her employer for a 10-day leave of absence. If the employer granted the request, it’s safe the say it wouldn’t have made this list. Not only did the business owner deny the request for time off, she told the employee she doesn’t “need people with cancer working in her office” and further stated, “this is America and in America you have to work even if you’re sick.” She closed the conversation by firing the employee, telling him, “With your illness, people die and I cannot keep you as a worker not knowing what is going to happen to you.”
The Racist Boss: An African-American employee complained to her white boss about his repeated use of racist slurs in the workplace. For example, he would comment about his Latino employees, “We’ll just make the Mexicans do it,” and make fun of Hispanic accents in front of them. He also told the plaintiff, along with another African-American female employee, “Y’all are my b******,” before discussing a task. Following her complaint, her boss gave her a Christmas present — a rhinestone-studded purse of the Confederate flag and several photos of him posing with Confederate symbols.
The Horny Head of HR: A client-relations manager sued his employer after its head of human resources began sexually harassing him. She bragged how her “husband has a girlfriend” and claimed she lets her teen son watch porn. She pestered him about his sexual orientation and hugged him against his will. She texted him a picture of a man reading a book with the title, “A– Eating Made Simple,” a video of a masturbating monkey and a picture of a man with an erection. It culminated with her nibbling on his ear while whispering, “I hope you’re not going to sue me.” That’s exactly what he did.
The Callous Non-Accommodator: Michael Trimble, originally from Ukraine, was born without arms as a result of birth defects resulting from the Chernobyl nuclear disaster. He rides a modified bike designed specifically for him and his disability. He is extraordinarily inspirational, which did not stop his employer from firing him. A manager complained about Trimble’s habit of bringing his bicycle in through the building’s front door and asked him to carry it up the back stairs. Trimble says he explained the obvious: that he can’t carry his bike up a flight of stairs because he doesn’t have arms, nor, for the same reason, could he walk his bike through an outdoor courtyard. “Can’t you just push your bike?” a supervisor asked him. “How can I push my bike? I don’t have any arms.” His employer ultimately fired him for continuing to bring his bike through the front door.
It’s scary to think that in this day and age employers like this still exist. That bosses don’t know that you can’t fire someone who needs a few days off for cancer surgery, or can’t make repeated race-based comments and slurs, or heads of HR (of all people) who don’t know the first thing about sexual harassment and how to avoid it, or we deny easy-to-make accommodations to our disabled employees.
Throughout 2017, I was asked time and again, “Jon, you’re a management-side attorney. Why are you focusing on bad employers?” Because bad conduct is a wonderful teaching tool: “Don’t do as they do.”
I’ve decided to continue my work calling out the worst of the worst in the hopes that it makes us all better employers and, more importantly, better people.
Here’s your early leader for 2018: According to recently filed lawsuit, a 68-year-old accountant asked his 23-year-old clerk to visit his home office off hours so that he could teach her about tax returns and accounting. She said that when she arrived, he told her that God wanted her to be his sexual plaything, that “she was an angel sent to him for sex and compared himself and her to Adam and Eve.”
Clearly, my work is not yet done.
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.
Considering the demographics of the workforce also helps guide a strategy in the right direction, according to Mark Johnson, founder and CEO of benefits management company Creative Benefit Solutions. Demographics are one prong of his four-prong strategy.
