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How Do I Respond to Employee Concerns About SWOT Analysis?

Dear Can’t Swat:

I love your question because you’ve hit on a bunch of reservations employees have about doing a SWOT analysis (that’s shorthand for strengths, weaknesses, opportunities, and threats).

The very nature of a SWOT analysis assumes that employees can look at themselves objectively. That takes a fair amount of self-awareness. Then, if they are able to analyze their own strengths and weaknesses, sharing the assessment candidly with management takes some courage. That’s a tall order.

So how do you respond to your employees’ hesitations? Let me share how I would answer their top concerns:

  • Since I’m already doing more with less, when do I find time to complete the SWOT worksheet?

If you’re having trouble figuring out how to juggle your tasks so you can fit in the SWOT analysis, are you having trouble juggling your tasks in general? This might imply that you have something to learn about managing your time more effectively. Or are you feeling unappreciated for doing all the work assigned to you? If so, you might benefit from being more assertive with your manager and asking for feedback on the work you perform.

  • If I identify threats, how will I be perceived by management?

Being open to learning on the job is one of the most respected characteristics of high performers. Having the guts to let your boss know where you could use some help is not a sign of weakness. If you’re smart, you’ll take on the challenge of growing and use the opportunity to strengthen the sense of trust you have with your manager.

  • Since we have limited funds and can’t give raises, how could we capitalize on opportunities that emerge from the analysis?

Development opportunities don’t have to be costly, and doing a SWOT analysis is not an exercise in justifying a raise. It is simply an opportunity to put your personal and professional growth into focus so you can continue getting the learning opportunities and support you need.

  • Will I be considered a narcissist by management if I list things I do well?

In a SWOT analysis, you are expected to list your strengths. If you have some skills or special capabilities that are not being utilized by your company, it’s a perfect time to brag.

  • How do I list my strengths when I’m not even sure what they are?

One of the benefits of doing a SWOT analysis is to help people develop greater self-awareness. Take the time to look in the mirror and evaluate yourself critically. Then, even if you’re pretty sure of your strengths and weaknesses, share your list with a trusted colleague and ask for some honest feedback. Have you overstated your strengths or your weaknesses? Have you missed some really important capabilities that would be useful to your company in the future?

A SWOT analysis is an opportunity for workers to engage in personal and professional development. As such, it may be one of the most valuable rewards your company can give to its employees. So encourage hesitant employees to take the plunge—when they look back at the exercise in a few years, I have a feeling they will regard it is one of the best things that happened to them at work.

SOURCE: Patsy Svare, managing director, the Chatfield Group, Northbrook, Illinois

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 a legal opinion. Also remember that state laws may differ from the federal law.

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He’s a Lumberjack and, Apparently, He’s Not OK

An employee who posed in Playgirl magazine is suing his former employer for sexual harassment, reports ABC News.

18 years ago, Daniel Sawka posed as a nude lumberjack in Playgirl. Sawka alleges that when his co-workers discovered the pictures online, they began teasing him with chants of “Timber!” According to Sawka’s lawsuit, the harassment included jokes about “his genitals, and a comment about what homosexual men viewing the photos … would be doing while viewing the photos.” Sawka also claims that his co-workers downloaded or viewed the photos during work hours and on work computers.

The lessons here are two-fold:

  1. Just because an employee posed nude for money in his 20s does not mean that he is comfortable with it becoming a workplace joke in his 40s. If an employee complains, the company has an obligation to investigate and take reasonable measure to stop the harassing behavior from continuing. This rule holds true whether the employee is male or female.
  2. The Internet is permanent. Google has approximately 47 billion webpage indexed for searching. The odds are pretty good that if someone wants to dig up some dirt on your, they’ll be able to find something.

Also, this story gives me great excuse to share this Monty Python clip.

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What Do You Do When an Employee Refuses to Complain?

Do you know what to do if you believe an employee was sexually harassed, but refuses to provide any details or other information? Do you have an obligation to investigate as if the employee had lodged a formal, detailed complaint? Crockett v. Mission Hospital (4th Cir. 5/30/13) provides some insight.

Stephanie Crockett worked at Mission Hospital as a radiologic technologist. Her supervisor (albeit one without the authority to hire or fire) was Harry Kemp. Following several disciplinary notices and a final written warning, Crockett asked if she could speak to Kemp. He agreed to a private conversation. Kemp insisted they meet in an unused office, expressing that he thought his office had been bugged. Then, behind closed doors, Kemp requested that Crockett remove her clothes before they spoke to prove that she wasn’t wearing a wire. Crockett complied, albeit begrudgingly and through tears. Following their discussion, Kemp requested that she not tell anyone what happened.

While Crockett on a leave of absence, Kemp went to HR and accused Crockett of “flashing” him in an attempt to persuade him not to report new disciplinary violations. Crockett denied to HR that she had flashed Kemp, and further told them that he had done something “horrific” to her and was trying to cover it up. She refused to elaborate, but later told HR that the incident involved sexual advances by Kemp. She again, however, refused to provide any details. HR then interviewed at least 5 co-workers, each of whom denied seeing or hearing anything inappropriate. The hospital later terminated Crockett for admitting to having recorded conversation between Kemp and her, and conversations about patient information, in violation of hospital policy.

The appellate court affirmed the district court’s dismissal of Crockett’s sexual harassment claim, concluding that the hospital “exercised reasonable care to prevent and correct promptly any sexually harassing behavior;” and that Crockett “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

McCarthy, Jones, and Ensley immediately began an intensive investigation on February 25, 2010, after Crockett accused Kemp of “horrific” behavior toward her, despite the fact that she refused to provide any further details or information. They interviewed numerous employees and supervisors in Crockett’s department, but were handicapped by Crockett’s refusal to cooperate and give Mission some clue as to her complaint. Since Crockett had refused to provide any information, their attempts to investigate her claim were unsuccessful….

The uncontradicted evidence establishes that Mission met with Crockett on numerous occasions in an effort to promptly correct the situation, counseled her in the procedure for filing a formal complaint, and provided her with a copy of the sexual harassment policy, despite Crockett’s unwillingness to cooperate with the investigation.

Harassment is harassment, regardless of whether the victim complains or management learns of the harassment allegations another way. A company’s obligations to investigate, and, if necessary, take corrective action does not change merely because the victim won’t cooperate.

For more information on how to appropriately and effectively respond to a harassment complaint, I suggest reading How NOT to respond to a harassment complaint. I also cover the topic in-depth in Chapter 6 of The Employer Bill of Rights.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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Facebook Posts as Evidence of Retaliation

I’ve written before about the dangers of employers accessing employee’s social media accounts without appropriate controls in place. One of the biggest risks is that an employer will learn some protected fact about an employee (e.g., medical information) that could lead to an inference of a discriminatory motive if that employee later suffers some adverse action.

Deneau v. Orkin, LLC (S.D. Ala. 5/20/13), illustrates this risk in practice. One week before Orkin terminated Tammy Deneau for repeatedly working overtime without authorization, Deneau posted the following on her personal Facebook page: “anyone know a good EEOC lawyer? need one now.” At his deposition, Deneau’s branch manager testified that he saw the comment on her Facebook page and faxed it to the division human resources manager, who, in turn, recalled that management-level discussion about the Facebook post preceded Deneau’s termination.

The court concluded, with very little discussion, that the Facebook post qualified as protected activity to support Deneau’s retaliation claim, and that she had made out a prima facie case of retaliation:

Based on the close temporal proximity between Orkin learning of the Facebook comment and Plaintiff’s termination, the Court finds that Plaintiff has established a prima facie case of retaliation.

Nevertheless, Deneau lost her retaliation claim, because she could not prove that the employer’s legitimate non-retaliatory reason (the repeated unauthorized overtime) was a pretext for retaliation.

Even though the employer won this case, it nevertheless illustrates the dangers employers face when reviewing employees’ social media accounts. Facebook, Twitter, and other social media channels can prove to be treasure trove of protected information—information about an employee’s personal and family medical issues, religious issues, genetic information, and, like this case, protected complaints about discrimination.

If you have a legitimate reason to review an employee’s social media accounts (e.g., is the employee trashing your business online, or is the employee divulging confidential information?) do so with appropriate controls in place. Have a non-decision maker conduct the review, and provide to the appropriate decision makers a report sanitized of any protected information. This simple control will insulate your organization from any argument that the decision maker was motivated by an unlawful animus based on protected information discovered in the employee’s social media account, and could prevent an expensive and risky lawsuit.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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Sexual Assaults in the Military and Mission Effectiveness

You’re a soldier. You’re flying a plane, operating a piece of war machinery, mapping a battle plan, supporting your squad, or in the middle of combat. You’re on guard for the enemy. The night before, you fought off a sexual assault. Or maybe you tried but couldn’t.

You’re sore, shocked, and suffering. Who did this—not an adversary, but someone wearing the same uniform you do. Now you have an extra concern on top of all your others. You not only have to look out for the foe you expected, but also one you didn’t whose acts can be as lethal to your safety, concentration and focus as a sniper.

That you must be on guard against a sexual attack in the midst of other risks is an obscene reality for many in our military. This is an unnecessary, outrageous hazard. It has gone on too long.

If what I’ve written sounds exaggerated, then watch The Invisible War, a searing, award-winning documentary about sexual assault in the military.

Or, pick up the news of the recent few weeks and you’ll read about reports of rising sexual assaults in the military, of counselors who attack those they are supposed to protect, and of sexual assaults at Annapolis that reference earlier incidents at the Air Force Academy. Research the early 1990s and you’ll learn about Tailhook, a ritual of sexual hazing and assault. And as The Invisible War explains, there’s a sordid history of such assaults and rapes that goes back even further. They affect males and females and leave permanent, devastating scars. The deepest wound is on the honor of our outstanding military, which has defended our freedoms for 200 years.

I did not serve in our armed forces. I have great regard and respect for those who have and do. What I have read and heard from friends and colleagues is that military units perform best when there is unit cohesion. This occurs when members of a unit work together to fulfill their mission. They build bonds of trust and the most basic form of mutual respect.

At least some of those who have been assaulted—or fear that they might—suffer just a bit less trust and concentration than if that wasn¹t one of their ongoing concerns. There must have been critical times when such distractions have affected their attention and judgment. Surely, there are hospital beds and graves filled by soldiers who relied upon comrades that lacked peak concentration or their very best judgment after suffering a brutal, criminal assault. These individuals, though not directly attacked, also paid the awful price for the sexual assault.

Some say that that part of the problem is that those who are currently victimized have to report up though their chain of command. Victims have reported that their attackers were the very people to whom they were required to report attacks. A related problem is that this system may cause complaints to be ignored or dismissed and the claimants ostracized or retaliated against.

No doubt this reporting and enforcement structure needs to be evaluated and likely changed to encourage complaints and provide for sure and just penalties and complainant protections. But solving this problem requires far more than rewriting processes or other procedures.

Most importantly, we have to change elements of military culture that condones sexual assault by minimizing it, ignoring it, protecting the offenders or treating it as a problem too trivial to address in the broader imperatives of warfare. Ultimately, sexual assault and rape and even less outrageous conduct leading up to it must be viewed as unprofessional, unethical, vile, and criminal. It has also got to be seen as a military hazard caused by purposeful behavior, in a sense, comparable to sabotage whose purpose is also often to undermine unit and mission effectiveness.

Our military leaders need to recognize sexual assaults as a threat to operational success and the safety of our troops, and not just as an attack to the individual who will, no doubt, suffer lasting damage. They then must to take the necessary steps to prevent this grotesque, outrageous, and damaging conduct from happening again.

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There Are No Magic Words to Invoke the FMLA

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

The Family and Medical Leave Act does not require an employee to use the word “FMLA” to request leave under, and invoke the protections of, the FMLA. Instead, an employee only needs to do the following:

  • For foreseeable leave, an employee only needs to provide “verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.”

  • For unforeseeable leave, an employee only needs to provide “sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.”

In either instance, this informal notification triggers an employer’s designation obligations under the FMLA.

How vague can verbal notice by an employee be to trigger an employer to consider the notice a request for FMLA leave? In Wiseman v. Awreys Bakeries LLC (6th Cir. 5/22/13) [pdf], the plaintiff, an employee with a history of back problems, verbally complained that he was “injured” and “couldn’t work.” The company fired him for unexcused absences, claiming that he provided no explanation or medical reason.

The appellate court reversed the trial court’s dismissal of the FMLA claim, finding that an issue of fact existed over whether the employee provided FMLA-qualifying notice. The court held that the employee’s verbal statement that he was “injured” and “couldn’t work,” coupled with the company’s knowledge of his history of back injuries and the employee’s request to see the company’s doctor, could lead a jury to conclude that the employee had invoked the FMLA.

Cases like Wiseman should rarely happen. The FMLA provides protections for employers who, in good faith, doubt whether the FMLA covers an employee’s request for time off. When there exists any doubt over whether an employee is seeking time off for a reason that could qualify under the FMLA, there is no harm in treating the request as one for FMLA leave. In fact, an employer has greater protection in an FMLA-covered scenario than not.

  • If the employer fails to treat the request as one for FMLA leave, the employer assumes all of the risk. If the employer is wrong, and the employee was requesting FMLA leave, an employer is severely limited it its ability to defend an FMLA interference lawsuit.

  • If, however, the employer treats the request as one for FMLA leave, the employee assumes all of the risk. The FMLA provides an employer tools to verify the legitimacy of the request. The employer can (and should) require that the employee provide a medical certification justifying the need for the FMLA leave. Moreover, if the employer doubts the initial certification, it can require a second (and, sometimes, even a third) medical opinion. If the employer ultimately concludes that the leave does not qualify under the FMLA, it can retroactively deny the leave and treat all intervening absences as unexcused, which usually results in termination.

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LeBron James Seeks an Intern, So Here’s an Assist

“King” James has initiated a full-court press to score the perfect interns for spring, summer and fall. And I hope that, whoever basketball superstar LeBron James’ team chooses to take their talents to Team LeBron, the chosen ones will have the experience of a lifetime working for the “Chosen One.”

On a side note: When I mentioned this story to one of my colleagues, Frank Kalman, he told me that this is nothing new. “Michael Jordan had an intern, too,” he said, stopping for dramatic pause: “Scottie Pippen.” Funny, but not true. “Pip” was an integral part of the Dream Team for a reason; he was an amazing player. Although Dennis Rodman seemed to have his own intern—Jack Haley—but that’s another story.

As I’ve said before, I think internships are a great way for people to get on-the-job training and to learn about a certain industry. But I personally feel interns should be paid for their work like any other worker.

Does this particular internship pay anything? We’re not sure. An email to James’ website asking for clarification was not answered by the time this was posted. We hope it does pay, but if it doesn’t, here’s a reminder about the rules for unpaid internships. There are six main criteria for determining if an unpaid internship is OK. The one that always jumps out is this: “The internship experience is for the benefit of the intern.”

To me, being able to pay the bills with some income would be to the benefit of the intern …

But let’s get back to the topic at hand: choosing an intern to work for the Miami Heat superstar. And here are some of the job requirements from James’ website:

  • “Must currently attend college or a four-year university.” No doubt having college experience is important in today’s job market, but let me take you back to the 2003 NBA draft when a certain high school graduate became the No. 1 pick of the Cleveland Cavaliers. Methinks he has done pretty well for himself without having to endure even one college weed-out class.
  • “Candidates must be available at least 10 hours a week.” OK, that doesn’t sound unreasonable, but what does “at least” mean? Not 10? Not 11? Not 12? … Sounds like things could easily go into overtime on any given week, and shouldn’t school be the priority if you want people currently in school?
  • “Access to a computer & phone” and the “desired” qualification of “residing in Ohio, South Florida or New York.” Have you met a millennial in college who doesn’t have computer and phone access? I haven’t. And is this a telecommuting internship? If so, what’s with the location qualifiers? That said, I’m sure the good people of the Buckeye State are happy that James is still looking out for them.
  • “A writing sample (500-word minimum).” Really? My guess is James’ team is going to be flooded with résumés. Did they mean “maximum”? If not, expect multiple manifestos making their way to lebronjames.com.

Here’s hoping some hoop dreams come true for some lucky basketball fans, but success comes with a well-drawn-out play for the interns.

James Tehrani is Workforce’s copy desk chief. Comment below or email editors@workforce.com. Follow Tehrani on Twitter at @WorkforceJames.

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Reality Bites: Fox Debuts New Workplace Reality Show

Last night, May 24, Fox debuted its new reality show, Does Someone Have To Go?, which Entertainment Weekly bills as Survivor meets The Office. Here’s the premise.

Needless to say, the New York Times is not impressed, unflatteringly calling the show “a victory” for companies and horrible for employees:

The squabbles are petty, ill-informed and sometimes personal, and seemingly dredge up unacknowledged tensions around race and age…. The stakes, as they are presented, are dramatic. For signing up to be on this show, employees … run the risk of conflict, humiliation and, possibly, unemployment. (Presumably, these workplaces are not unionized.)

As for me, I was glued to the TV, and will be through this show’s run. Yet, I couldn’t help but think about the scope of the release agreement these employees had to sign before appearing on the show.

Did you watch? Share your opinion in the comments below, or on Twitter with the hashtag #WorkplaceReality

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at
(216) 736-7226 or jth@kjk.com.

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Employee vs. Independent Contractor: Do You Know the Difference?

Employers take a risk when they classify someone performing services for them as an independent contractor instead of an employee. Because employers owe contractors far fewer obligations than employees, employers risk each of the following if a court determines that a mis-classification occurred:

  • Unpaid overtime.
  • Unpaid taxes.
  • Un-provided benefits.
  • A discrimination claim, or claims under other laws that protect employees but not contractors (i.e., the FMLA).

Do you know, however, how to spot the difference? Troyer v. T.John.E. Productions, Inc. [pdf], decided yesterday by the 6th Circuit, provides some insight.

The issue in the case was whether the company failed to pay overtime to three individuals who performed road crew services (setting up and breaking down displays) at the company’s collegiate and corporate events. The court determined that the company had mis-classified them, and owed them unpaid overtime as employees:

Plaintiffs testified that their working relationship with Defendants was relatively permanent, they worked hundreds of hours of uncompensated overtime over several months, and that Defendants exercised strict control over their schedule and day-to-day activities while out on the road. Defendants countered that Plaintiffs worked on a job-by-job, independent contractor basis, that the Plaintiffs had a great amount of autonomy regarding how they completed their work.

In determining whether an worker is an employee or an independent contractor, the IRS compares the degree of control exerted by the company to the degree of independence retained by the individual. Generally, the IRS examines this relationship in three ways:

  1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
  2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how the worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
  3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

If you are considering classifying someone performing services for you as an independent contractor, your answers to these three questions will determine whether that individual is a bona fide contractor, or instead, is a employee. When in doubt, err on the side of caution. The government applies these tests aggressively to find employee-status whenever it can. You should too, and the risks are too high to make a mistake.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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How Do We Identify Future Key Roles for Our Company?

Dear Anticipation:

In order to identify key roles moving forward, you should start by establishing an open dialogue with the leadership team in your company. Speaking with these individuals about your company’s strengths and challenges provides a better understanding of which areas need to be addressed. You could also ask top performers how they think improvements could be made in the organization’s functions. Establishing open conversations from the beginning, and checking in with leadership and top performers, keeps you “in the know” about necessary talents and skills. Additionally, the conversations will give you a better understanding of leaderships’ thought processes regarding the organization, allowing you to more accurately anticipate future needs.

Annual employee surveys and qualitative information can also shed some light on your talent needs. Employees may be more aware than leadership of key skills needs. Delve deeply into unfavorable responses by talking with employees about the results. This helps you determine specifically any areas in which additional skills and talent are needed.

Once you identify the needs, consider how to find the best fit for the job. Think about the time and resources it takes to recruit a new candidate and whether you can find a good fit among your current employees. Talk to your top performers and ask them to suggest other ways they could contribute to the organization. Sometimes talent needs can be filled by current employees that take on more specialized roles. You should create a detailed outline of the role, including necessary skills and the position’s impact on organizational outcomes. This lets those employees understand how they directly contribute to the overall goals and strategy of the company. Furthermore, develop an advancement and succession plan as part of the redefined role. Employees will appreciate being able to see how performing in a particular job helps advance their careers—and it ensures your organization is prepared to fill the role when it becomes vacant.

You likely will have a variety of applicants, should you decide to fill the role with someone outside the company. Keep these candidates on file for future talent management needs. Although these people may not be appropriate for the vacant position, having a list of their skills should help you fill more quickly fill future jobs. And it provides current goals to help these folks prepare for future opportunities when they arise.

SOURCE: Murat Philippe, director of workforce consulting services, Avatar Solutions, Chicago, Illinois