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Can You Hear Me Now? Unilateral Deafness Is Not an ADA Disability

I’ve long argued that 2009’s Americans with Disabilities Act Amendments Act changed the game for how employers defend disability discrimination cases. Because the ADAAA defines “disability” broadly, with the express goal of making it easy for employees to establish the existence of a protected disability, it is now exceedingly difficult for employers to win cases on summary judgment by arguing that an employee is not “disabled.” Here is the prediction and guidance I provided on this issue nearly two years ago:

Employers should give up hope that they will be able to prove that an employee’s medical condition does not qualify as a disability. Instead, employers should focus their ADA compliance efforts on the two issues that now matter in these cases: avoiding discrimination and providing reasonable accommodations.

Because every rule is defined by its exception, I bring you Mengel v. Reading Eagle Co. (E.D. Pa. 3/29/13) [pdf].

Christine Mengel worked as a copy editor and page designer for Reading Eagle. In 2007, she became deaf in one ear following successful surgery to remove a brain tumor. Eighteen months later, Reading Eagle terminated Mengel’s employment as part of reduction in force. She claimed that she was included in the reduction in force because of her disability—deafness in one ear.

The district court disagreed, concluding that Mengel could not proceed on her ADA claim because she was not disabled.

However, Ms. Mengel only provided evidence of hearing loss in one ear rather than bilateral deafness…. Ms. Mengel failed to present evidence that her hearing loss in one ear substantially limited her hearing. She testified that her deafness in her left ear was not a distraction, and she did not mention any specific instances where her hearing loss caused a problem other than that she “didn’t hear some things.”

It is refreshing to see that courts are still examining the merits of a claim of disability, instead of glossing over it and assuming that the ADA protects all medical conditions. This case is significant because it proves the exception—that a subset of diagnosed medical conditions exists that does not qualify as an ADA-protected disability.

The key takeaway for employers, though, is to know that this subset is very small, and act accordingly when presented with an employee suffering from a diagnosed medical condition.

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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Deploy the Girl Scout Cookie Offensive to Ward Off Labor Unions

NewsOK reports that some employers have started banning their employees from promoting their kids’ fundraisers at work. At least one story has gone viral about a mom fired for hawking her daughter’s Girl Scout cookies to coworkers:

Tracy Lewis … was called into her boss’s office while working as a retail service manager for Bon Appetit, which provides various food services to the American University campus. Lewis claims her boss told her she was being fired for selling the cookies for her 12-year-old daughter’s Girl Scout troop out of her food cart, even though Lewis says she has done so for the past three years with no reprimand.

This reaction may not be as outrageous as you might think. In fact, there is a great legal reason to ban Girl Scout cookie sales and other similar solicitations in your workplace. As crazy as it sounds, it might prove to be one of your best weapons against a union organizing campaign. The catch is that you need both a sufficient broad no-solicitation policy, and the enforcement of it in a non-discriminatory manner.

A lawfully drafted and sufficiently broad no-solicitation policy prohibits anyone from soliciting during work time and in work areas. To the contrary, an overly restrictive policy would either ban union-related communications on its face, or operate to treat union-related communications differently than similar non-union solicitations.

The former is easy to spot. What does the latter look like?

Consider an employer with a strict no-solicitation policy that ignores Girl Scout cookie sales or March Madness brackets. If that employer disciplines an employee for engaging in union-related solicitations, has it enforced its no-solicitation policy discriminatorily?

The answer depends on whether the exceptions are so common that they swallow the rule, or are merely isolated incidents.

  • For example, in United Parcel Service v. NLRB, the 6th Circuit concluded that because employees “routinely distributed such materials as fishing contest forms, football pool material, and information about golf tournaments,” the employer could not enforce its no-solicitation rule against union-related distributions.
  • However, in Cleveland Real Estate Partners v. NLRB, the same court concluded permitting occasional and sporadic distributions did not demonstrate discriminatory enforcement of a no-solicitation rule.

I am immune to the charms of the Girl Scout cookie. While I love a Thin Mint as much as next person, my son has Celiac Disease, so I avoid bringing into my home glutened treated that he can’t enjoy. For the rest of you, however, consider whether permitting your employees to sell cookies or engage in other innocent solicitations is worth the risk that if a union organization drive rears its head, you will be left powerless to engage one of your key weapons—the no-solicitation policy.

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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Accommodating Disabled Job Applicants is No Game

When we think of employers’ reasonable accommodation obligations under the Americans with Disabilities Act, we usually think in terms of accommodating current employees. The ADA, however, equally extends this obligation to job applicants.

A recent lawsuit filed by the Equal Employment Opportunity Commission against Toys “R” Us illustrates this issue:

The EEOC charged that Shakirra Thomas, who is deaf, applied for a team member position at the retailer’s Columbia, Md., store in October 2011. Thomas communicates by using American Sign Language, reading lips and through written word. When the company contacted Thomas to attend a group interview, Thomas’s mother advised that Thomas was deaf and requested the company to provide an interpreter for the interview. The retailer refused and said that if Thomas wished to attend a group interview in November 2011, then she would have to provide her own interpreter, the EEOC alleges.

Thomas’s mother interpreted for her during a group interview, but the company refused to hire Thomas despite her qualifications for and ability to perform the team member position, with or without a reasonable accommodation, the EEOC said in its lawsuit.

What is the takeaway for employers? Don’t conflate the need for a job-related accommodation with an interview-related accommodation. If a job applicant needs an accommodation to complete the interview process, and it does not impose an undue burden, provide it. If it turns out that someone cannot perform the essential functions of the job even with an accommodation, you are within your rights to deny employment. You cannot make that determination, however, unless you consider them for the job first.

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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Paying Employees for Accrued Vacation Upon Termination—Yay or Nay?

One of the questions clients most frequently ask me is whether they have an obligation to pay employees for accrued, unused vacation days at the end of their employment. My default answer always is, “It depends. What does your handbook or vacation policy say?”

Under Ohio law, the default rule is as follows.

  • If an employer has no policy under which an employee forfeits unused vacation time or other paid time off at the end of employment, an employer must pay out any unused time.
  • If, however, an employer has a clear policy providing that paid vacation time or other paid time off is forfeited on resignation or discharge, then an employer is not obligated to pay out any unused time upon termination.

What does a policy look like that entitles an employer to withhold accrued, unused vacation time or other paid time off as a forfeiture at the end of employment? The employer in Broadstock v. Elmwood at the Springs (Ohio Ct. App. 3/15/13) [pdf] had the following policy:

When a team member leaves Elmwood, all accrued vacation time is paid to the end of the last pay period provided the team member requests the pay; a two (2) week notice is given and fulfilled; an exit conference has been conducted; all items (keys, uniforms, badges) have been returned; and the team member has not been terminated. (Emphasis added.)

According to the court, the employee handbook clearly stated that accrued vacation is forfeited to an employee upon termination. The employee was terminated. Therefore, the court held that the she was not entitled to her accrued vacation time.

To me, however, such as policy is draconian and overbearing. Instead, consider limiting vacation and other paid time off forfeitures to “for cause” terminations. In that case, you won’t benefit employees who lose their jobs through their own misconduct, but you also won’t be punishing employees who lose their jobs through no fault of their own (i.e., downsizing, restructuring, etc.).

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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Do Employees Have Any Privacy Rights in Personal Emails Sent From Corporate Accounts?

Earlier this week, a story broke reporting that Harvard University surreptitiously viewed the work emails of 16 residential deans as part of its investigation into a cheating scandal. Your level of outrage at Harvard’s investigation will depend entirely on the degree to which you believe employees have an expectation of privacy in a corporate email account.

According to U.S. v. Finazzo (E.D.N.Y. 2/19/13), employees enjoy no such expectation of privacy, provided that you have the right language in your email policy.

In Finazzo, the U.S. government alleged that Christopher Finazzo, an executive at the clothing retailer Aéropostale, received illegal kickbacks from transactions between his employer and one of its vendors. During an unrelated internal investigation, Aéropostale discovered an email in Finazzo’s Aéropostale email account between him and his personal attorney. That email contained a list of Finazzo’s personal assets, which included several companies he co-owned with the vendor from whom he received the illegal kickbacks.

In his subsequent federal criminal trial, Finazzo attempted to block the government from using that email against him. The trial court denied his motion, holding that he had no expectation of privacy in his work email account.

In reaching this conclusion, the federal court relied upon Aéropostale’s email policies, which stated:

Except for limited and reasonable personal use (e.g., occasional personal phone calls or e-mails), Company Systems should be used for Company business only. Any limited exceptions to this rule must be approved through the IT department. Under no circumstances may Company Systems be used for personal gain or profit; solicitations for commercial ventures; religious or political issues; or outside organizations. Company Systems may not be used to distribute chain letters or copyrighted or otherwise protected materials….

You should have no expectation of privacy when using Company Systems. The Company may monitor, access, delete or disclose all use of the Company Systems, including e-mail, web sites visited, material downloaded or uploaded and the amount of time spent on-line, at any time without notification or your consent.

The court concluded that Aéropostale’s policy, and Finazzo’s knowledge of it, disposed of any claim that the email exchange with the personal attorney was private and therefore privileged:

Finazzo has no reasonable expectation of privacy or confidentiality in any communications he made through his Aéropostale e-mail account. Aéropostale had a clear and long-consistent policy of limiting an employee’s personal use of its systems, reserving its right to monitor an employee’s usage of the system, and making abundantly clear to its employees, including Finazzo, that they had no right to privacy when using them.

Do you have an email or workplace technology policy? Do you employees know that you have such a policy? Does your policy—

  1. Warn employees that they have no expectation of privacy in corporate emails or in their use of corporate systems?
  2. Ban personal use of corporate systems or email, or limit such personal use to what is reasonable and occasional?
  3. Reserve the right of the company to monitor employee use of its systems, including emails?

Following these simple steps will go a long way to dispelling any idea by your employees that their work email is private, while providing you sufficient coverage lest anyone challenge your ownership of employee corporate emails and or your right to search such emails.

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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Succession Planning Roadmap

If your CEO has a sudden heart attack, do you know who will take the chief executive’s place? What if your top executives are wooed away to another firm? Do you have the next generation of leaders ready to fill those roles? If not, you may end up with an empty C-suite—or worse, underqualified people moving into leadership roles because there is no one better to take over.

The only way to reduce the effect of lost leadership is through a strong succession planning program that identifies and fosters the next generation of leaders through mentoring, training and stretch assignments, so they are ready to take the helm when the time comes. Research supports sound succession planning. A study some years ago from consulting firm Booz Allen Hamilton concluded that “over their entire tenures, CEOs appointed from the inside tend to outperform outsiders” when it comes to returns to shareholders. Yet many organizations struggle to take their succession planning programs beyond a static list of names slotted for a few top spots.

“Every company has a succession planning document,” says David Larcker, a professor in the graduate school of business at Stanford University. “The question you have to ask is, ‘Will it be operational?”

This Roadmap offers human resources leaders a framework and advice on how to create a robust succession planning program that aligns talent management with the vision of the company, ensures employees have development opportunities to hone their leadership skills, and guarantees that the organization has a leadership plan in place for success in the future.

Jim Skinner, former CEO of McDonald’s Corp., was known to tell managers: “Give me the names of two people who could succeed you.” It was just one way the CEO continued the culture of succession planning at McDonald’s.

It was an understandable priority considering Skinner only landed in the role in 2005 after two other CEO’s died suddenly over the course of just two years. And when he retired in 2012, Skinner was confident that his successor, Chief Operating Officer Don Thompson, was ready to take over, because he spent much of his seven years mentoring him.

“I basically felt the responsibility to the board of directors to be sure I provided them with someone who could run the company when I’m gone,” Skinner told Fortune a year before his retirement. “Until I was capable of doing that, I would not have left.”

This kind of leadership level commitment to training and mentoring the next generation is a vital component of succession planning. And while most executives understand the importance of succession planning efforts, few of them believe their organization excels in this category.

As companies begin to develop a succession planning process, they should consider these fundamental issues:

High potential vs. everyone: Some companies focus all of their succession planning efforts on “high potential individuals,” whereas others create a succession plan for everyone from the moment they are onboard. The benefit of focusing on high-potential workers is you can channel more resources and coaching toward those employees with the greatest promise. The risk is that you overlook great people and alienate and frustrate the rest of the employees, which can impact morale and turnover. “Most successful organization focus on everyone,” says Dan Schneider, cultural architect at advisory firm The Rawls Group.

Hiring from within vs. bringing in someone new: Developing leaders internally takes time and effort, but these homegrown candidates are more likely to be successful than external candidates. According to a 2012 study by Matthew Bidwell, an assistant professor at the University of Pennsylvania’s Wharton School, external hires are 61 percent more likely to be laid off or fired, and 21 percent more likely than internal hires to leave a job on their own accord. These outside hires also get paid more, but get lower marks in performance reviews during their first two years on the job.

However, internal hires aren’t always an option. Fully 38 percent of firms anticipate they will need to recruit externally for C-level roles in the next 12 months. Internal candidates are also not always the best choice. If a company wants to move in a dramatically different direction, or its current leaders leave before the next generation is ready, companies need to be open to bringing in someone from the outside.

Factoring diversity into decision-making. Managers often seek people who are like them for mentoring and promotion, which often leads to a plethora of white men leading organizations. If companies want diversity in their leadership, the succession planning initiative should include steps that actively promote women and minorities for leadership opportunities, and train managers on how to encourage diversity on their teams.

Making sure you have support from the top. HR can build a great talent development plan, but without active support from leadership, it won’t have the desired impact. HR leaders can’t force executives to support their efforts but they can align talent management efforts with strategic plans and educate executives and managers about the business value of succession planning efforts.

Fluor’s leaders develop their own replacements

At Fluor Corp., the global construction and engineering firm headquartered in Irving, Texas, talent management efforts are directly aligned with long-term strategic goals, and executives are viewed as the company’s corporate talent scouts.

“Having a robust succession planning and talent review program and culture is just good business,” says Glen Gilkey, Fluor’s senior vice president of HR. “It helps mitigate the risk that leadership will be a constraint to growth.”

Part of every executive’s job is to identify high-performing employees and help them build their skills and experiences so they can move up the corporate ranks, Gilkey says. “Leaders are held accountable for the development of their people even if it means moving them to another division,” he says.

Flour relies on a 70-20-10 model of talent development with 70 percent of the development coming from experience, 20 percent from coaching and 10 percent from classroom or other training. Leaders are expected to look for opportunities for employees to gain experience and to provide them with the necessary support and coaching to be successful, Gilkey says.

To ensure this support occurs, executives are celebrated when one of their people succeeds, and part of their compensation and promotion is tied to how effectively they support talent management on their teams.

“Having a culture where people want to help others succeed can’t be understated,” Gilkey says. “It doesn’t cost a lot of money, but it does require a lot of time on the part of the leadership team.”

Stuart Dean, the architectural restoration company based in New York, is an 80-year-old family-owned business, and all of it’s current shareholders are fourth-generation family members. Yet two years ago, when the company needed a new CEO, it went outside the family to find its next leader.

“We needed to go in a different direction,” says Adam Arkells, senior vice president and chief human resources officer. The company had gone through a period of stagnant growth, and the near-term plan called for global expansion. “We needed a different type of leader for the company, someone who could bring cohesion and a single vision while also embracing the family’s values,” says Arkells, who was part of the search committee.

That’s not to say the committee didn’t look within the family’s ranks to find a replacement. But they weren’t hamstrung by the need to choose family over everyone else, Arkells says. Ultimately, they chose Mark Parrish, a career executive with experience in international commercial service industries.

It was a struggle at first. Some people doubted that someone outside of the family could lead the company. But over the first year, he proved himself by demonstrating that he was honest, thoughtful and invested in the success of the business, Arkells says. “””

And though the transition was a little difficult, the board and the employees are pleased with the results. “Choosing an external candidate to run a family business can be an emotional struggle,” Arkells says, “but you can’t let that get in the way of good business decisions.”

Making succession planning a priority must come from the leadership team, but implementation of that plan is HR’s responsibility, The Rawls Group’s Schneider says. “HR’s role in succession planning is to find people who fit the culture and to help them develop the skills to lead the organization so it stays viable in the future.”

To do that, HR has to create a succession planthat links talent development with the strategic goals of the board, the business and the staff.

A succession planning program compiles the skills, abilities and goals of each employee, compares them to the needs of current and future roles, and tracks employee progress toward being ready to fill those roles. Building a strong succession planning road map involves the following steps:

Pack a BASKET: Create a specific model for every job that defines the behavior, attitude, skills, knowledge, experience and talent, or BASKET, necessary to succeed in the role. These models will help employees understand what’s expected of them in their current role and what it will take to be ready to move forward.

Know where you are going: Be sure BASKET assessments consider the skills necessary to fulfill future roles not just present ones. For example, if the company plans to expand globally, the next generation of leaders should be comfortable working abroad; or if growth plans involve rapid acquisitions, someone with finance skills and change management experience may be the best choice for leadership positions.

Map the gaps: As part of the talent assessment process, HR should assess everyone in the organization with an eye toward who is ready to take on key leadership roles today, in 36 months and in 72 months. Use the BASKET assessments to do a gap analysis with employees to help them see what they need to do to be ready for the next level and how long that should take. Report those findings to the C-suite and the board as part of your succession planning updates.

Ask for directions: As part of the assessment, talk to employees about their career goals and aspirations to be sure you are prepping them for a job they want. “Part of HR’s responsibility is to make sure people have enough exposure to know where they want to be in the future,” Schneider says. “That’s where a lot of succession planning programs go off-track.”

Identify roadblocks: Once you’ve completed the assessments, look for any bottlenecks in the development process that could prevent candidates from moving forward. This may include executives who block the way for the next generation, or glaring gaps in readiness for critical roles. Ideally, you will have two to three candidates for every leadership position in varying stages of readiness.

Make sure the board is onboard: Once assessments are complete, HR, the CEO and the board of directors should come together to review the assessments and create a list of the top candidates for each role. “The board is your jury and you need their support,” Miles says. By working with the CEO and the board, you ensure that everyone is on the same page about succession plans.

Keep your eyes on the road. Once you have a succession planning list in place and you know where your next generation of leaders are in their development process, use talent management tools, performance assessments, mentoring and stretch assignments to close the gaps. Make sure employees are onboard with setting their own development goals, and track their progress through regular performance assessments.

Check the map: Review the succession plan with the C-suite and the board at least every nine to 15 months and whenever there is a major change in leadership or in corporate strategy. This ensures that you are always up to date on the development of your top talent and that you identify any changes in direction that might require a tweak to the plan.

As companies expand beyond 200 to 300 employees, it becomes challenging to oversee talent management and succession planning efforts on paper. You cannot effectively track the career development progress of hundreds of employees using spread sheets and sticky notes, says Claire Schooley, senior analyst with research firm Forrester.

Fortunately, today’s generation of HR software systems are integrating succession planning with their recruiting, onboarding, training and assessment modules, making it a seamless step in the talent management process.

Schooley encourages companies to look for tools with visual features that allow them to graphically identify talent gaps, color code individual readiness, and make side-by-side comparisons of several individuals. “That can be extremely helpful to succession planning efforts,” she says.

Even if you aren’t ready to make succession planning part of the way you use HR software, find out if your vendor provides succession planning features that can be implemented later on. “You don’t have to use everything at once,” Schooley says, “but it’s nice to know that it’s there when you are ready.”

Some tools that integrate succession planning modules include:

SAP SuccessFactors’ succession and development module helps companies identify, develop, and track talent and spot talent gaps that need to be addressed.

Features include:

  • Tools that allow you to highlight and watch key positions for succession planning.
  • Tracking tools to following high-performing employees through their career development process.
  • Reports and review features to assess an employee’s experience, skills and career goals.
  • Rating tools that allow you to appraise individuals, groups and departments using competency-based criteria.

Oracle Taleo’s succession planning module is a cloud-based service that helps organizations systematically consider both internal and external talent for key roles.

Features include:

  • Comprehensive succession plans created using data captured in the recruiting and performance review processes.
  • Talent Pools and an Interactive 9-Box Matrix that assign and track development progress for critical roles, and allow HR to assess employee groups using key performance metrics.
  • Candidate comparison features that display multiple talent profiles side by side.
  • Embedded analytics so managers can segment and benchmark pools of employees.

Halogen Software’s eSuccession uses a talent pool approach that aligns the company’s workforce competencies with strategic plans and follows a phased approach to succession planning.

  • Phase 1: Understanding workforce potential and retention risks through performance appraisals. Includes tools to predict employee potential and identify opportunities for promotion.
  • Phase 2: Groom high-potential employees for future talent needs. Includes talent profile tools to track and compare talent assessment updates and identify gaps.
  • Phase 3: Recruit from within. Includes tools to assess talent and performance data when filling open positions, calculating bench strength or measuring whether talent development goals have been achieved.

Peoplefluent succession planning software helps businesses build a sustainable leadership pipeline through internal talent development and recruiting.

Features include:

  • Interactive succession planning charts and talent profiles to view the readiness of potential successors for key positions.
  • “Extended enterprise” succession features that optionally extends the succession planning process outside the organization.
  • A talent profile hub that captures historical performance management data for easy reference.
  • Tools for employees to research career opportunities and express interest within the talent profile.

Silkroad Wingspan manages all employee information compiled from assessments, appraisals, goals and development plans so that HR can automatically classify internal candidates for a given position.

Features include:

  • Career development tools that highlight the skills to be acquired by each employee, and the anticipated time to complete development goals.
  • Comparison tools that allow for views of all potential candidates side by side while adjusting job-specific criteria.
  • Separate modules that can operate individually or as an integrated employee performance management system.

Look Out!

Companies make many mistakes when it comes to succession planning. Here are the most common—and how to avoid them.

  1. Using the past to plan for the future: You need to choose leaders whose skills align with future goals. To avoid this trap, make sure succession plans align with the long-term strategic vision of the business.
  2. Stopping at the CEO: The best succession planning programs at least address the entire leadership team as well as senior management. “Succession planning is a multi-person event,” Schooley says. “If one person moves up, it creates a new hole and that can ripple through the organization.”
  3. Not getting the Board onboard: CEOs and HR often think they have a succession plan in place only to discover the board disagrees. “It’s a big mistake to assume the viability of a candidate in your mind without vetting it with the board,” Miles says. The best programs incorporate the board of directors in planning and keep them up-to-date on development efforts to ensure everyone is on the same page.
  4. Allowing human capital roadblocks to take root: When talented people top out in leadership roles, they can prevent the next generation from moving up. The best companies avoid these roadblocks by creating new positions, collaboration opportunities and stretch assignments so future leaders have room to grow.
  5. Succession isn’t part of the culture. Succession planning fails when there is no incentive for executives to mentor their people, Schneider says. Best-of-breed companies encourage executives to identify and develop talented young leaders and align their compensation with these efforts. “It should be considered a badge of honor to have your people selected for promotion.”
  6. The wrong people making decisions. CEOs aren’t in the best position to choose their successor, because they often are more focused on their current legacy than the company’s future goals. The best companies involve HR and the board when making succession planning decisions.

We’ve organized this roadmap into three phases to help you implement the planning and execution of you succession planning program. Below is a summary of the “Plan,” “Do” and “Review” of succession planning.

Plan

  • Decide how deep you want to go: Just the C-suite? Management? Everyone?
  • Determine whether you will focus on high-potential workers or extend succession planning to a wider pool of employees.
  • Define the skills and experience needed for key roles: Think about where the company is going and what leadership skills you’ll need to get there.
  • Evaluate whether your HR software offers succession planning tools and whether you want to use them.

Do

  • Assess employees’ current performance and identify any skill or experience gaps for their future roles.
  • Ask employees about their career goals so you are certain they want the role you are grooming them for.
  • Create training, mentoring and leadership opportunities for top talent to close the gaps.
  • Work with the CEO and the board to create a list of two to three candidates for every top position.

Review

  • Review assessments of top talent with the board every nine to 15 months, and again whenever there is a major change in leadership.
  • Identify development roadblocks—such as lack of mentors or limited on-the-job leadership opportunities—and look for solutions.
  • Review succession plans during annual strategic planning, to ensure development goals align with strategic goals.
  • Be willing to adapt the succession planning list if your goals change, or if individual employees aren’t showing the leadership development you need.

RECOMMENDED READING

Related articles and resources

“The Three Traits of a Successful CEO,” Human Capital Media

“We Lost a Leader, Now What?” Human Capital Media.

“Get Talent Fit in 2013,” Human Capital Media.

“Sudden Death of a CEO: Are Companies Prepared When Lightning Strikes?” by David F. Larcker and Brian Tayan, Stanford Graduate School of Business

“The State of Human Capital 2012: False Summit,” The Conference Board/McKinsey report October, 2012.

Talent pipeline draining growth, CGMA 2012 report

Top 10 Best Practices in HR Management, 2012 HR Daily Advisor.

Linked In Group: Succession Management Professionals This group provides a networking forum to discuss the practical questions, issues, and ideas pertaining to internal talent management, including New Employee Onboarding, Succession Planning, Identification and Development of High Potential Employees, Talent Assessment, and the Talent Review Meeting process.

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Fight or Flight? When an Employee Sues You, Should You Litigate or Settle?

Two weeks ago, the New York Times‘ You’re the Boss Blog asked the following question:

How do you handle employee litigation?

Do you dig in your heels and fight, settle, or some combination of the two?

The NYT‘s blog post recounted the story of one small business owner who chose to stand his ground and assume the risk of taking an employment case to trial. As a result the employee dropped his settlement demand to a nuisance value, $10,000.

The reality, however, is that there is no easy answer to the question of how your company should respond to a lawsuit by an employee. You must weigh all of the following factors to come to the right decision for your business in each case.

  • Is the plaintiff a current or former employee?
  • How much can you afford to spend, and will litigation now impede your ability to fund a settlement later?
  • Do you have employment practices liability insurance coverage?
  • Is there a risk that a settlement will incent other employees to bring claims, or will long, protected litigation deter copycat claims?
  • What is your tolerance for the distractions of litigation—responding to discovery, gathering documents, dealing with the hassles of electronic discovery, attending depositions, and attending court dates?
  • Do you want to subject your managers, supervisors, and other employees to depositions?
  • What is the reputation of the plaintiff’s attorney—is s/he going to make the case more difficult and expensive than necessary?
  • What is the likelihood the assigned judge will grant a summary judgment motion and dismiss the case?
  • How tight or loose are juries in your jurisdiction?

How you answer these question will dictate whether you litigate or offer a settlement, and, if it’s the latter, when you make that offer. Keep in mind, however, that even if you choose to offer a settlement, no case resolves without two willing parties. If the other side is not willing to meet you at a fair and reasonable value for the claim, then the choice has been made for you, lest you become an easy mark for every disgruntled employee.

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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What Could We Do To Better Evaluate Sales Reps?

Dear Cost of Money:

When preparing to provide performance reviews, it is easy to fixate on finding the “right” type of appraisal to use. However, the type of appraisal used is far less important than what is being measured. For a performance review to be actionable and effective, it must evaluate the skills that most align with the business’s overall strategy, regardless of an employee’s role.

So what skills should be evaluated for sales professionals? The most crucial skills, according to sales leaders, are: 1) prospecting 2) time management and 3) account management. They are the top three skills that sales people must master.

As such, sales leaders should measure all the subset of skills and experiences—such as industry knowledge, research abilities, presentation skills and territory management, among others—needed to successfully carry out these three broader responsibilities.

Underpinning a command of these responsibilities is a commitment to “owning” the customer experience. This entails providing differentiated customer experiences throughout the selling and post-selling process. Leaders that wish to develop their sales teams will ensure that salespeople get rated on their ability to consistently provide a positive interaction with customers.

In fact, all employees play a role in this ownership of the customer experience. It is central to your organization’s strategy and all employees ought to be evaluated on their ability to master their roles.

Once leaders determine specific metrics, it is up to them to conduct a productive performance review. The following steps help ensure that employees and managers walk away from performance appraisals with good understanding and clarity on how to move forward.

  • Prepare for a focused discussion. Think about the goals of the organization and how the employee contributes. Link areas for skills development with the needs of the organization to help employees better understand the significance their role.
  • Set expectations. Before the meeting, make sure the employee understands the focus of the appraisal and the type of information they should be prepared to share.
  • Invite discussion. Encourage open and honest conversation in performance reviews. Ask about specific challenges and areas of opportunity to garner greater feedback.
  • Jointly decide on next steps. Make sure that goal setting is a collaborative exercise. It is important for employees to have autonomy over their career progression.
  • Summarize the core points of the appraisal. Recapping the core discussion points ensures that leaders are in lockstep with sales professionals.

Performance appraisals aren’t only about evaluating the past. In fact, have your mangers use them as a game plan for improving both corporate and individual performance. That’s a surefire way to boost bottom-line results.

SOURCE: Chris Blauth, AchieveGlobal, Tampa, Jan. 22, 2013

LEARN MORE: Please read a related article: What’s the Best Method for Assessing Sales Incentives?

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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Beware Saying too Much When Engaging in Pre-Suit Settlement Negotiations

Most lawsuits between employers and employees do not start out as lawsuits. They start out as conversations between the aggrieved employee’s lawyer and the company’s counsel. This order of events makes sense for both sides. If the parties can negotiate a deal pre-suit, everyone can save the time, expense, and aggravation of a protracted lawsuit. Additionally, a negotiated deal provides both sides certainty; once a lawsuit is filed, all bets are off and everyone’s fate rests in the unpredictable hands of a judge or jury.

When negotiating, Evidence Rule 408 (which bars the use of offers to compromise) provides everyone some peace of mind that the settlement offers will not end up in front of the jury at trial. This fact is important, because a company does not want a jury learning that an offer of settlement had been made. A jury might perceive such an offer as an admission of liability, or a floor below which its verdict cannot fall.

What happens, however, when, in the course of pre-suit negotiations, counsel makes statements that go beyond an offer of settlement, and discuss the merits of the underlying case? Bourhill v. Sprint Nextel Corp. (D.N.J. 1/23/13) [pdf] is a cautionary tale for employers’ counsel responding to pre-suit settlement demands.

After Sprint terminated Bourhill, he retained an attorney to pursue a disability discrimination claim on his behalf. Before filing suit, Bourhill’s attorney wrote the following to Sprint, to gauge the hope of a negotiated resolution:

While we have advised Mr. Bourhill that we are prepared to take his claims forward to litigation, he has advised us that he would prefer at this time to resolve this situation informally, by means of a [sic] adequate compensatory settlement. Please contact me, or have your attorney contact me, to discuss whether you desire to resolve this matter amicably, privately, and without resort to litigation. If I do not hear from you by February 22, 2010, we will proceed to take action to enforce Mr. Bourhill’s rights.

Sprint’s in-house counsel responded with a letter of his own, captioned, “Confidential/For Settlement Purposes Only”.

I spoke to your assistant last week regarding your client’s allegations that Sprint violated the New Jersey Law Against Discrimination. As I advised her, my investigation does not support your allegations. Mr. Bourhill’s employment was terminated when, after being out of work for eight months, he went on long-term disability, a termination which was mandated by the Plan documents. Our records show his long-term disability benefits were approved through May 31, 2010. Even if Mr. Bourhill was able to return to work without restrictions in December 2009, Sprint does not grant employees one-year leaves of absences and, in this case, would have been prohibited from doing so by the Plan documents requiring termination of employment. While Mr. Bourhill remained free to re-apply for available positions at Sprint once he was cleared for work, our records show he failed to do so.

I also further noted that although your letter of February 3 inquires as to Sprint’s interest in an amicable resolution, the letter does not request any specific relief. I asked your assistant if your client was attempting perhaps to use this letter as leverage to avoid repaying Sprint the overpayments he received in the amount of $7,564.57. She did not know but indicated you would get back to me. As I have not heard from you to date, I am following up via letter. In short, it is difficult to consider an amicable resolution without knowing the relief sought by your client. If you would like to get back to me with a specific proposal that also addresses the overpayments received by your client, I remain available. Thank you.

In the ensuing litigation, Bourhill’s attorney attempted to use Sprint’s counsel’s letter to defeat Sprint’s motion for summary judgment. Sprint objected, arguing that the letter was an inadmissible offer to compromise, barred by Evidence Rule 408. The trial court agreed with Sprint, but only as to the second paragraph of its letter, which discussed the money. The court allowed Bourhill to use the letter’s opening paragraph, which discussed the merits of the termination. The court believed that it could divorce the two paragraphs from each other if the first paragraph was not logically connected to the second. Because the first paragraph discussed the merits of the case, and the second monetary compensation, the court redacted the second paragraph under Evidence Rule 408, and considered the redacted letter as part of the record on Sprint’s motion for summary judgment.

This case teaches employers’ counsel a valuable lesson. We can fall into a trap of Rule 408 myopathy–that if we caption something “Rule 408 Confidential and Inadmissible Settlement Negotiations,” courts will consider it as such and bar its use. As Bourhill makes clear, courts can divorce substantive statements from settlement negotiations, and only bar the latter.

What is the lesson here? As a management lawyer, keep written settlement communications short and to the point–the offer itself. If you have to discuss the merits of the case with the employee’s lawyer, either do so over the phone or only put in writing what you live with a judge or jury considering.

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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Is an Employer Obligated to Provide Light Duty to an Employee Returning From FMLA Leave?

Many employers use temporary light duty assignments to enable ill or injured employees to return to work before they are fully healed. In fact, rehabilitation specialists will tell you that it is better for both the employee and the employer for one to return to work sooner on a modified assignment than to wait until full recovery. Is an employer required to offer light duty to an ill or hurt employee out on Family and Medical Leave Act leave, or can an employer require an employee to remain on FMLA leave until full recovery? According to James v. Hyatt Regency Chicago (7th Cir. 2/13/13), light duty is not a right to which employees can insist under the FMLA.

Carris James spent his 22-year career with the Hyatt Regency Chicago as a banquet steward. In March 2007, he suffered a non-work-related eye injury and required surgery. The company offered him FMLA leave, which he accepted. Before his medical leave ended (which his collective bargaining agreement had extended beyond the FMLA’s required 12 weeks), James faxed a note from one of his physicians, which stated that James could return to work with certain lifting and bending restrictions. Those restrictions would have prevented him from returning to his banquet steward position. When Hyatt refused to offer light duty, James sued.

James argued that Hyatt interfered with his FMLA entitlement when it did not reinstate him to a light duty position. The court disagreed. It relied on the plain language of the FMLA’s regulations: “If the employee is unable to perform an essential function of the position because of a physical or mental condition … the employee has no right to restoration to another position under the FMLA.” Because light duty is not an “equivalent” position, the FMLA does not mandate restoration to a light duty position. It only protects employees who can return and perform all of the essential functions of their position. Because James’s doctor only released him to light duty, the company had no obligation under the FMLA to bring him back to work.

While the answer to this issue under the FMLA is fairly straight forward, often times the Americans with Disabilities Act will dictate a different result. Before denying light duty to an employee returning from FMLA leave, you must consider whether the ADA requires the light duty as a reasonable accommodation. If you have light duty available, and do not have to create a light duty position to accommodate the employee, the ADA will likely require the consideration of temporary light duty as a reasonable accommodation.

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.