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The 47 Percent and You

Let’s leave aside for a moment whether Mitt Romney just sank his campaign by calling 47 percent of Americans moochers. There’s a workforce angle in his remarks, related to the employment “deal.” It boils down to this: Romney’s remarks reflect a version of the deal that is outdated and doomed.

As you’ve probably heard by now, Romney made striking comments about President Obama supporters that were secretly recorded at a fundraiser earlier this year. The liberal website Mother Jones published the video and transcripts from it. The crucial passages:

“There are 47 percent of the people who will vote for the president no matter what. All right, there are 47 percent who are with him, who are dependent upon government, who believe that they are victims, who believe the government has a responsibility to care for them, who believe that they are entitled to health care, to food, to housing, to you-name-it. That that’s an entitlement. And the government should give it to them. And they will vote for this president no matter what. ā€¦ These are people who pay no income tax. ā€¦ [M]y job is is not to worry about those people. I’ll never convince them they should take personal responsibility and care for their lives.”

What does this have to do with the employment deal? Most of the 47 percent of people who pay no income tax are people who nonetheless pay payroll taxes. In other words, they are workers, who contribute their share to Social Security and Medicare. Employees at lower wage rates who may qualify for earned income credits or child tax credits.

In effect, Romney reveals contempt for these folks. For people that often are the ones delivering the company’s customer experience as clerks or servers or working as support staff.

Implied is a view of a company where employees are costs to be minimized rather than assets to be valued and developed. It is a management mindset that reigned in the 1980s and 1990s. The corporate raider ethos, eager to lay off employees in the pursuit of quick profits. In fact, there’s evidence Romney embraced or practiced this philosophy as head of Bain Capital.

An employment deal that offers employees little in the way of security and treats them as necessary evils may have led to higher bottom lines for a while. It also may have served as a correction to the overly paternalistic compact around work in the 1950s, 60s and 70s: the one that saw companies give nearly guaranteed employment for life in exchange for employee loyalty.

But companies can no longer be dismissive about their employees. Research shows that layoffs generally are not a strategy for success, that companies that are better to workers and to their stakeholders overall outperform peers in the stock market. Consumers increasingly want to do business with kind companies. And this just in: 75 percent of Americans would not take a job with a company that had a bad reputation, even if they were unemployed.

Romney may not realize it, but reciprocity and interdependence are on the rise. What’s needed now is an employment deal that blends the performance mindset of the 1980s, 1990s and 2000s with the protective attitude toward workers found in the post-World War II period. Companies that have struck such a balance include Ultimate Software, The Container Store, FedEx and Google.

Romney’s comment about the 47 percent miscasts Americans and American workers. As an Obama supporter I took it personally ā€” a rare thing as a reporter covering public affairs for more than 15 years. And I suspect that other Americans of varying political stripes will not forgive him come Nov. 6.

Whatever the outcome of the election, though, Romney’s remarks imply a variety of the employment deal that is dated and likely a dangerous strategy. Executives, owners and managers should be wary of it.

Ed Frauenheim is senior editor at Workforce. Comment below or email efrauenheim@workforce.com.

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No Call, No Show, No FMLA

Just because an employee makes a request for FMLA leave does not excuse an employee from complying with an employer’s attendance policies. According to section 825.302(d) the FMLA’s regulations:

An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. An employee also may be required by an employer’s policy to contact a specific individualā€¦. Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

This means that if you have a policy requiring employees to call-in if they are going to be late or absent, you can enforce that policy to the detriment of a non-compliant employee taking FLMA leave.

For example, in Ritenour v. Tenn. Dep’t of Human Servs. (6th Cir. 8/29/12), the employee, who mistakenly believed she had been approved for intermittent FMLA to care for her mentally ill son, did not comply with employer’s job abandonment or absenteeism policies, which required the employee to provide appropriate notice to avoid the accrual of unexcused absences. Because the employer terminated Ritenour because of her violation of the policy, her FMLA claims failed:

Even assuming that Ritenour was entitled to take FMLA leave and that TDHS interfered with Ritenour’s FMLA rights, TDHS has provided a legitimate reason for Ritenour’s dismissal that is not related to her request for FMLA leaveā€”because Ritenour did not call in, in violation of the job abandonment policyā€¦.

Ritenour knew that the absenteeism policy required that absent employees call-in their absences in order to give their supervisor appropriate notice to make alternative work assignment arrangements. TDHS’s job abandonment policy applies to all employees who are absent from duty without approval. The enforcement of that policy against Ritenour was not related to Ritenour’s request for FMLA leave because the policy applies to employees who are absent from work without approval for any reason.

While it sometimes seems as if employees hold all the high cards in the FMLA poker game, as Ritenour makes clear, employers are within their rights to enforce neutral attendance policies against employees who fail to follow their rules. Now, go check your policies to make sure they contain these types of notice and call-in rules.

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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Testing Employees for Legally Prescribed Medications Must be Done Carefully

A recent settlement announced by the Equal Employment Opportunity Commission points out the risks that exist if you include lawfully prescribed medications in your drug testing programs.WF_WebSite_BlogHeaders-11

According to the EEOC’s lawsuit, Dura Automotive Systems drug-tested all of its Lawrenceburg, Tennessee, plant employees in May 2007 for 12 substancesā€”five that were illegal controlled substances, and seven that were legal medications lawfully prescribed for the individuals taking them. The EEOC alleged that Dura required those employees who tested positive for legally prescribed medications to disclose their underlying medical conditions, made it a condition of employment that the employees cease taking their prescription medications, and either suspended employees until they stopped taking the medications or fired those who were unable to perform their job duties without the benefit of their medications. For these transgressions, Dura will fund a $750,000 settlement.

You might be thinking to yourselves, “I have read lots of medicine bottles that caution against operating motor vehicles or heavy machinery. Why can’t I take steps to guarantee my employees’ safety against these dangers?” The answer is that you can, but only in limited circumstances defined by the Americans with Disabilities Act.

Asking questions about whether an employee currently is taking, or has taken, any prescription drugs or medications, or monitoring an employee’s taking of such drugs or medications is a “disability related inquiry” under the ADA. Testing for whether an employee currently is taking any prescription drugs or medications is a medical examination under the ADA. Disability-related inquiries and medical examinations made during employment must be job-related and consistent with business necessity. Thus, an employer can only inquire about an employee’s prescription medications under these limited circumstances.

In the words of the EEOC:

May an employer ask all employees what prescription medications they are taking?

Generally, no. Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat.

For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. A fire department, however, could not require fire department employees who perform only administrative duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.

In the Dura Automotive case, the employer tested all of its employees for prescription medications, regardless of their job duties. This across-the-board testing runs afoul of the ADA. If you have safety-sensitive positions, in which employees will pose a direct threat by performing their essential job functions while impaired, then you may be able to test those employees for legally-prescribed medications. These issues, however, are highly sensitive, and employers must tread carefully to avoid violating the ADA.

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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Transfer Preferences to Vacant Positions as an ADA Reasonable Accommodation Continue to Baffle Courts

A disabled employee comes to you and asks for a transfer to an open and available position as a reasonable accommodation? Do you grant the request? For the time being, there is no clear answer to this difficult question.

The ADA includes “reassignment to a vacant position” as a possible “reasonable accommodation” for disabled employees. Courts have struggled, however, in deciding whether disabled employees are entitled to a transfer preference over more qualified, nondisabled co-workers. Five years ago, employers thought they were going to receive some clarity on this tricky issue, when the Supreme Court agreed to hear Huber v. Wal-Mart Stores. When Huber settled before the Supremes could have their say, the issue remained in limbo. Last week, in EEOC v. United Airlines [pdf], the 7th Circuit issued the latest pronounced by a federal appellate court on this issue, and its holding is diametrically opposed to Huber.

Huber held that an employer can hire the most qualified person for a position, even if means passing over a less qualified, disabled employee who requested a transfer to the vacant position as a reasonable accommodation. United Airlines, however, concluded that the ADA requires employers to provide a preference to the disabled employee, and pass over a more qualified individual in favor of providing the vacant position as a reasonable accommodation. In other words, this issue is more muddled and unsettled than ever, and remains ripe for clarification from the Supreme Court.

Going forward, employers are left with the following two very different options:

1) Hire the most qualified person and deny the open position to a less qualified disabled employee.

– or –

2) Automatically award an open position to a qualified disabled employee, if even a better qualified applicant is available and despite an policy to hire the best person for the job.

Employers must act cautiously if faced with this thorny issue. The answer, for now, will vary depending on the federal circuit in which your business operates. My advice from nearly five years ago rings as true today as it did then:

When you don’t hire the best person for an open position, it could lead a court to second-guess your judgment and question why a member of a protected class was overlooked in favor of the second/third/fourth/whatever best person. Recognize, however, that this issue is unsettled, and declining to accommodate a disabled employee by transferring that employee to an open position could result in a violation of the ADA.

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’s the Best Method for Assessing Sales Incentives?

Dear Not Getting It:

Motivating a sales force can be a tricky task, and measuring how rewards and recognition influence that motivation can be even more elusive. There is no one set measurement that will alert you to the success or failure of recognition programs; however, by looking at several metrics you can obtain a comprehensive view into the effects these investments can bring.

It’s important to first understand what you are measuring. Employee rewards and recognition programs are not just corporate niceties, but tools to drive sustainable motivation.

Monetary and time-off awards can be effective in providing short-term bursts of motivation and ambition in employees. However, the effects are rarely sustainable. Be mindful that compensation based-rewards have a way of encouraging competition as well as stress among employees, especially salespeople. This can be dangerous for the sales force as competiveness affects morale and can cause salespeople to focus on their rewards instead of the client.

Recognition investments should work to drive intrinsic motivation. Sustainable motivation is derived from the satisfaction of three psychological needs shared by all—competence, relatedness and autonomy. By creating reward and recognition initiatives that address these needs, managers can achieve a long-term productive and fulfilled workforce.

To fully understand the motivational effect of your programs, you should measure the short-term and long-term effects of these talent investments. Think about the activity input you intend to drive from the program; then evaluate the activity output. For example, are employees closing more calls, winning larger deals or producing more actionable leads? This is one way of measuring the short-term effect of a program: Ask, “Did it help spur the immediate change we sought?”

Although short-term wins are important, they don’t tell the whole story. Rewards and recognition programs should help shape the morale of the sales force, instilling a culture that is marked by highly motivated and engaged employees. One way to measure the long-term return on investment is by looking at employee turnover rates, absenteeism and productivity. An effective recognition program will not only produce immediate changes in activity, but will also instill an environment in which employees sense that their motivational needs are met, thus often leading to greater morale and productivity.

Lastly, although the formal measurement of ROI is important, don’t underestimate the importance of informal ROI. Take time to talk with your salespeople about their motivational needs and the effect of rewards programs. Instituting programs based on the feedback you receive reinforces your commitment to helping the sales force satisfy their intrinsic needs.

SOURCE: Chris Blauth, AchieveGlobal, Tampa, Florida

LEARN MORE: Read The Golden Egg of Incentive Pay Policies Is an Elusive Bird.

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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How Do We Help People Adapt to Dynamic Situations?

Dear Stuck in a Rut:

This situation likely requires an approach from two directions: 1) formal and informal training to help employees adapt more readily to change and embrace new behaviors and 2) an overall change-management framework that will drive broader impact.

We recommend you incorporate several necessary tools to help employees adapt to change and develop flexibility and resilience in dynamic environments.

  • Self-reflection: How do people perceive change that would affect them directly? What are they gaining? What are they losing? It is common that employees tend to see gains from change as longer term, corporate-driven and less desirable, and see immediate losses from change as personal and potentially threatening. Are they clear (and you) about the reality?
  • A clear vision for what is possible: Creative problem-solving skills can be developed in a learning environment through use of experiential, hands-on activities that help employees see the results they can achieve by using more creative solutions.
  • Stress-management techniques: Change drives stress and disruption, frequently taking people out of their comfort zone. An effective program acknowledges that stress is expected in a changing environment and will offer simple tips and techniques to effectively manage change-related stress.
  • Informal support mechanisms: Application of learning on the job is enhanced by providing job aids, providing coaching tools and guidance for supervisors, encouraging team problem-solving and providing informal networks in which learners can share successes.

Designing a change-management framework is essential to drive lasting change. This necessitates:

Sponsorship and communication. Managers must demonstrate clear support for training and related activities and provide ongoing communication about expectations for behavior change.

Experiences. It is important to provide people with access to experiences that will reinforce desired behaviors.

Reinforcement. The performance-assessment process must be adapted to reinforce new behaviors and expectations.

Recognition and rewards. They must be aligned with new behaviors and expected results.

Change leadership. Fundamentally, leaders are catalysts for change. Among other competencies, key leadership competencies for a dynamic, changing environment should be cultivated in the workplace. These include fostering involvement, developing consensus and commitment, managing dissent, encouraging innovation and risk-taking, and aligning individual and business goals.

SOURCE: Patricia Kunkel, Xerox Learning Services, Dallas

LEARN MORE: Read Changing Hearts and (Anxious) Minds.

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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How Long is Too Long for a Medical Leave of Absence?

Last year, I suggested that the ADA has swallowed the FMLA for employee medical leaves:

The recently amended ADA is expansive enough to cover most medical conditions. If most medical conditions are covered as disabilities, then most employees with medical conditions will likely, at some point during their tenure, need a reasonable accommodation. One accommodation that the EEOC considers presumptively reasonable is an unpaid leave of absence, even for employers too small to be covered by the FMLA…. If the ADA now covers most employees’ medical issues, and the ADA requires an unpaid leave of absence, hasn’t the ADA swallowed the FMLA, at least as employee medical leaves are concerned?

Last week, the 10th Circuit Court of Appeals clarified that while unpaid medical leaves are a possible reasonable accommodation, no employee is entitled to an indefinite leave of absence.

In Robert v. Board of Cty. Comm’rs of Brown Cty. Kan. (8/28/12), the 10th Circuit concluded that an indefinite leave of absence is per se unreasonable. Catherine Robert, who worked as supervisor of released adult offenders, developed sacroiliac joint dysfunction. After a lengthy leave of absence, including 12 weeks under the FMLA, Robert remained unable to perform all of her required duties—including visiting offenders at their homes or in jail, supervising drug and alcohol screenings, and testifying in court. She sued for disability discrimination following her termination.

In upholding the dismissal of her claim under the ADA, the court focused on the indefinite nature of her leave of absence:

Although site visits and other out-of-office work were an essential function of her position, Robert would be nonetheless qualified if she could have performed those duties with a reasonable accommodation…. In light of Robert’s complete inability to perform site visits at the time of her firing, the only potential accommodation would be a temporary reprieve from this essential function. Our precedents recognize that a brief leave of absence for medical treatment or recovery can be a reasonable accommodation…. There are two limits on the bounds of reasonableness for a leave of absence. The first limit is clear: The employee must provide the employer an estimated date when she can resume her essential duties. Without an expected end date, an employer is unable to determine whether the temporary exemption is a reasonable one. The second is durational. A leave request must assure an employer that an employee can perform the essential functions of her position in the “near future.”

There is no evidence in the record that Robert’s employer had any estimation of the date Robert would resume the fieldwork essential to her position…. As such, the only potential accommodation that would allow Robert to perform the essential functions of her position was an indefinite reprieve from those functions—an accommodation that is unreasonable as a matter of law. For that reason, she was not a qualified individual under the ADA and her claim of discrimination fails.

What does this case mean from a practical standpoint? That an indefinite leave of absence—one from which neither the employee nor his or her doctor can provide a date upon which the employee can return to performing the essential functions of the position—is per se unreasonable under the ADA. On the broader issue—how long of a leave is too long to be reasonable—the court punted. While the court passed on this important issue, it did suggest that six months might be too long, although a hard-cap on a duration of a leave as a reasonable accommodation is a moving target.

If you are granting a leave to an employee as an accommodation, your best defense to a potential ADA claim is to open a dialogue with the employee about a return date, and prepare to be flexible. While an indefinite leave almost always will be unreasonable, what is reasonable will depend on the nature of your business and how the employee’s position fits into your organization. You cannot make this determination without talking to the employee, gathering medical information, and making an informed decision about what works best for your company.

[Hat tip: Eric Meyer’s The Employer Handbook]

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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We All Built That

Politics can really warp reality. That’s worth remembering this Labor Day. The truth is that it generally takes business leaders, workers and decent government to make a successful company, economy and society.

Of course Barack Obama is right when he makes the point that business owners can’t take all the credit for creating a solid company. And he stumbled in uttering that simplistic statement: “If you’ve got a business—you didn’t build that.”

Of course Mitt Romney is right that business owners “built it”—in the sense that individual initiative is a key ingredient in any successful business. And he stumbles in discounting the importance of society and government in creating the conditions for business success.

Want to argue this point? Show me a lot of successful, world-class businesses based in Somalia these days. Or in Uzbekistan, Venezuela, Myanmar and other countries plagued by high levels of corruption or tyrannical leadership.

The Soviet experiment showed that too much government planning and control can stifle an economy. On the other hand, Scandinavian countries that have had much more government involvement in the economy than our more free-enterprise system have produced many world-class companies as well as some of the highest standards of living.

A balance is needed. The extremes aren’t helpful.

One thing Democrats and Republicans ought to agree on is that labor deserves some credit this Labor Day. To be sure, American workers can always improve their skills and their performance. But take a step back and appreciate what U.S. employees have been doing over the past few years:

The AFL-CIO has launched a catchy campaign to applaud workers. You can access an app that lets you send cards to friends and others with messages like: “That barbecue didn’t make itself. Labor Day, brought to you by hard-working people. Like you. … Thanks for the work you do.”

For companies, recognizing workers’ importance and actively recognizing their contributions—in other words, becoming a better employer—is a key step to better business results.

Smart organizations know the truth. It’s not “you built that, Mr. or Ms. Business Owner.” Nor is it “You didn’t build that.” It’s “We all built that.”

Ed Frauenheim is senior editor at Workforce Management. Comment below or email efrauenheim@workforce.com.

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How Do We Ask the Right Interview Questions?

Dear Need for Speed:

Start with the résumés. You learn a lot about candidates—not only from what they tell you, but what they exclude—their effectiveness as a communicator and the overall presentation. The devil is in the details, so watch the details. Review each résumé for specific skills, experience and quantifiable attributes that align with the position you wish to fill. Check employment dates, being mindful of large gaps in employment—why might that be? Note also basic fundamentals such as grammar, spelling, font choices and the general layout. Lack of professionalism/attention to detail in a résumé is a sure warning sign that you can expect the same from their work.

Skill assessments are another good way to objectively qualify desirable candidates. If you have assessments, send them out before phone screenings and use them as proof of the skills required. Candidates who pass the résumé review and skill-assessment phase are worth a brief phone screening.

Keep these initial screenings to five minutes and ask the following four questions, but remember not to discuss the company or position before you qualify them through your process.

  • In one minute or less, walk me through your current responsibilities. (The objective is to assess whether a person really possesses the experience and skills required.)
  • Why are you looking? (You need to understand their motivation—why you, why now?
  • What are you looking for in your next position/employer? (If the answer does not gel with your company or the position, stop the interview and move on. Don’t waste your time, or theirs, trying to change their mind or talk them into your company.)
  • What sets you apart from your competitors on this position? (The person ought to be able to clearly articulate the value she or she brings to your organization. Today, everyone must bring value to the table. If they can’t answer or well on the phone, they’ll never be able to do it once hired.)

During this screening call, you are looking to uncover a few basic fundamentals: Does the candidate speak and communicate effectively? Are you getting straight, honest and engaging dialogue? Do you sense a healthy self-esteem—solid confidence but paired with enough humility to work with your team, clients and vendors? Does the candidate have the skills that you’re looking for? And perhaps most important—what does your gut tell you? Initial intuition is remarkably accurate. How many times have you talked yourself into hiring someone you were initially apprehensive about but who worked out well?

Provided the candidate’s passes these initial checkpoints with flying colors, tell him or her about the position and extend the invitation for a formal interview. If not, let the candidate know right then and there that it doesn’t sound like a good fit. You owe the person that much, and the finality makes it easier for you to move on to the next option.

SOURCE: Deborah Millhouse, CEO Inc., Charlotte, North Carolina

LEARN MORE: Southwest Airlines screens candidates for cultural fit.

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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How Do We Become a Learning Organization?

Dear On the Sidelines:

Developing a culture of success—one built on continuous learning and stronger customer relations—is admirable and necessary in today’s pressurized business climate. It certainly is an initiative HR is equipped to lead.

Start by making the business case to your management team that your HR group has what it takes to drive this culture change forward. Present your initiative in a way senior leaders will readily understand, using language and facts that resonate with business impact.

For instance, consider the following example of how to make your business case:

“Our turnover rate of 20 percent is twice the level of the industry average. At a replacement cost of $150,000 per employee, we are spending $15 million more than our competition to maintain our workforce levels at optimum capacity. We need to focus on engaging and retaining our valued employees through continuous learning and a ‘customer-first’ focus. What could we do with an additional $15 million that would delight our customers? The HR team recommends (insert solid ideas here).’ ” Get the picture?

Lay out the concrete objectives human resources wants to achieve. Start with bottom-line issues, build in the supporting detail and conclude with the expected business results.

Be prepared to succinctly explain the actions HR will take to make this culture change a reality. Ask senior leaders to support HR’s efforts, partnering with them to define and outline their specific role(s) in the culture change program. Build a timeline and define the anticipated outcomes.

Present your case in this context and you will gain the confidence of top management to spearhead needed and beneficial changes.

SOURCE: Sandi Edwards, senior vice president, AMA Enterprise, New York

LEARN MORE: Learning Needs to Be Simple Enough to Make It Stick

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.