Author: Site Staff

Ever wonder what to look for first and foremost when hiring managers or promoting people to managers? You’ll be interested in a recent survey of human resource directors of Fortune 1000 companies. The survey asked human resource directors to rank the importance of training in 10 different communication skills to the overall success of the organization. The skills rank as follows:

1. Interpersonal Skills (78.3%)
2. Listening (74.3%)
3. Persuasion/Motivation (63.4%)
4. Presentation Skills (56.9%)
5. Small Group Communications (52.0%)
6. Advising (50.5%)
7. Interviewing (47.5%)
8. Conflict Management (47.0%)
9. Writing (42.6)
10. Reading (24.0)

SOURCE: Luporter Report, January 14, 1999, 800-339-0515.

You should distribute a voting time leave policy that, at the least, specifies how employees should request time off to vote; whether the time off is provided for by state law or by company policy, and lets employees know if they will be compensated for time off. It’s also helpful to let them know when the polls are open, and how to vote absentee.

Here’s a sample voting time leave policy:

As required by law, all employees are provided up to (insert number) hours of time off with pay on election day to vote in city, county, state and national elections if it cannot be done outside of normal working hours.

Give your supervisor (or insert title of authorized person) advanced notice if you need time off to vote. You may be required to bring in proof that you voted in the elections.

Most states do provide that workers have time off to vote, but whether it is an unpaid or a paid absence varies, as do the penalties on employers that deny employees this opportunity. Most employers grant such time off regardless of the law.

Source: 1999 U.S. Master Employee Benefits Guide, Copyright 1998, CCH Incorporated, Chicago, IL.

Issue:
Your company has just begun operating a new corporate intranet to which all employees have access via the computers at their workstations. The intranet includes a site that allows employees to ask business-related questions and receive on-line answers from management. Several employees have asked that the company also provide a separate site for “classified ads,” so that employees may post various personal notices and solicitations. Your advice has been sought: Does your company open itself up to any liability by sponsoring a non business-related classified section? Can you sponsor a classified section, but screen materials before they are posted, or limit the types of materials allowed?

Answer:
The answer to both of these questions is yes: Yes, you are at risk if you allow materials to be posted, and yes, you can restrict the postings. A classified section for personal notices on a corporate intranet is a type of company bulletin board. Neither employees (nor unions) have a statutory right to post anything on employer bulletin boards. Employers do have the right to restrict access to their bulletin boards.

Risk: potentially offensive materials are posted.
Once an employer allows its employees to post non-business material on a company bulletin board, the company opens itself up to certain kinds of legal liability. For instance, an employer could get into legal trouble if an employee or group of employees posts material that is considered offensive to members of a protected class, and the employer, having notice of the posting, takes no action to remove the material or to discipline the offending employees. For example, an employer could be held responsible for promoting a sexual or racial hostile work environment by allowing, through inaction, the intranet classified section to be used for posting sexually or racially hostile messages.

Risk: union solicitations or religious proselytizing.
Another type of legal problem occurs when an employer allows employees to post non-business material on a company bulletin board, but prohibits the posting of certain types of protected material, such as union propaganda or notices of religious affairs. This kind of discriminatory conduct by an employer could be characterized as an unfair labor practice under the National Labor Relations Act, or a violation of Title VII’s prohibition against religious discrimination.

What can management do?

Choose not to sponsor the classified section.
One solution would be to refuse the employees’ request for a classified section on the corporate intranet. Neither employees nor unions have a statutory right to a bulletin board.

Establish a policy requiring permission to post or screening material prior to posting.
If management decides that sponsoring a classified section is a good idea, e.g., to increase employee morale, the employer can and should protect itself by adopting a written policy that allows management to screen material prior to posting and to prohibit inappropriate material. Such a policy will allow management to ensure that nothing is being posted that will offend a protected class of employees. An employer should consider these issues when formulating such a policy:

• Communicate the policy.
  State the policy on the bulletin board itself. In addition, include the policy with other workplace policies, such as in orientation packets and employee handbooks. All rules and restrictions should be a part of written rules.
• Establish screening procedures.
  If notices must first be cleared with a particular person or department before posting, be sure to clearly state that point. In order to monitor compliance, have the screening person initial and date each posting.
• Be consistent.
  If screening is required, the employer must follow the policy consistently. Failure to be consistent could be a violation of the National Labor Relations Act (NLRA). If the policy allows (or does not prohibit) employee-generated notices, then the employer cannot prohibit employee-generated postings that conform to all policy requirements. Employers cannot prohibit a union poster inviting workers to an offsite rally, for example, while at the same time allowing employee-generated postings inviting workers to attend a baby shower.
• Limit timeframe.
  Establish a fixed timeframe for postings and have the bulletin boards reviewed periodically to ensure that the material is current. Placing removal dates on each posted item is one way to see that notices don’t overstay their usefulness. If the board will be used for employee-to-employee notices (items for sale, car pools and the like) it might be easier just to state that the board will be cleared at the end of every month, and that those desiring to carry over any notice should remove and repost.

Enforce the policy uniformly and consistently, without discriminating against unions or a protected class.
Once an employer has adopted a policy concerning the use of non business-related bulletin boards, it must tread lightly and take extra care to ensure that the policy is uniformly and consistently enforced. While the policy itself may be perfectly legal, if the employer is careless in its enforcement of the policy or uses the policy to screen union postings, the employer may be charged with violating the NLRA. The biggest problems in enforcement of bulletin boards arise when an employee or group of employees decides to post union propaganda. Employers must keep in mind that any inconsistent or “spotty” enforcement of the policy in such instances can create legal issues for them. Moreover, if the company has a lenient bulletin board policy, but changes the policy in reaction to pro-union or union organizing efforts, a violation of the NLRA may be found.

Cite: National Labor Relations Act, Section 8, Title VII of the Civil Rights Act of 1964.

Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online, and via the Internet.

Independent contractor “twice removed” won’t insulate employer from negligent hire liability.

Issue:
You are the HR director of a high-end home appliance manufacturer. A terrible tragedy has just been described to you; one of your independent distributors has called to inform you that an independent contractor working for his company has raped a customer after gaining access to her home for purposes of an in-home product demonstration. All sales of your appliances are through such demonstrations.

Shocked and saddened, you hang up the phone while your mind assesses the potential liability involved. All your distributors are independent contractors; moreover, your company’s carefully drafted contract with its distributors provides that you exercise no control over the selection of the distributor’s workers, and that the distributor bears the full cost and responsibility for recruiting, hiring, firing, terminating and compensating its independent contractors and employees.

It’s a terrible crime; there will doubtless be unfavorable publicity but, as you get up to inform the legal department, you feel secure that there is no liability for your company. Are you right?

Answer:
Not necessarily. In this situation, your company is acting as a general contractor, and you have a duty to exercise reasonably any control you retain over the independent contractor’s work. Here, by requiring your distributors to sell home appliances only through in-home demonstrations, you have exercised sufficient control over the sale of your products to end-users to justify imposing a duty of reasonable care in selecting the persons who perform the demonstrations. In fact, in such a situation a vacuum cleaner manufacturer was found to be liable for damages for creating an in-home marketing system without adequate safeguards to eliminate dangerous salespersons from its sales force.

What should you do?

Be extra careful dealing with independent contractors. Make sure you know what you’ve retained control over.
The fact that the manufacturer’s agreement with its distributors allowed the distributors to independently contract with salespeople did not excuse the manufacturer from the duty to act reasonably with regard to the detail—required in-home sales—over which it did retain control. When you evaluate your agreements, focus on whether you have retained control; if you have, ask what kind of responsibility that entails. Either way, you will want legal counsel to review any agreements, as independent contractor status can be tricky.

Educate your business partners on your standards as a responsible employer.
Salespeople who are required to do in-house demonstrations gain access to people’s homes under the auspices of the businesses they represent. A person of ordinary intelligence could anticipate that an unsuitable salesperson would pose a risk of harm. Here, had a background check been made, it would have revealed coworker complaints of sexually inappropriate behavior as well as an arrest record, witness statements, a confession, guilty plea, and an indictment charging the worker with indecency with a child. If this had been known, would he have been hired?

Because of potential liability in this and other cases, the manufacturer has included warnings in its distributor training manuals to do a “thorough criminal background check” on potential sales candidates and has encouraged its distributors to do reference checks to ensure customer safety.

Cite: Read v. Scott Fetzer Co d/b/a/ The Kirby Co, TexSCt, No. 97-0707, decided 12/31/98.

Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online, and via the Internet.

Do you often find yourself unable to find a document, unsure of where you placed or misplaced it? Do you spend a lot of time on the road or bringing work home and back — only to find out you don’t have what you need with you?

Try designating one folder as your “Linus’ Blanket Folder,” named after the character in Charles Schultz’ Peanuts cartoons who couldn’t go anywhere without his blanket. In addition to your normal files, set aside one folder of a unique color or design. In this folder, keep any papers, documents or notes that are pressing. Bring the folder home each night, in the car and on business trips. When items in the folder are no longer pressing, be sure to remove them — otherwise, you’ll be carrying around quite a load.

SOURCE: Todd Raphael, Workforce Online, January 8, 1999.

Ever tried the IRS’s Web site for tax forms and publications? There’s a better site out there. The Simplified Tax and Wage Reporting System site, or “STAWRS,” has virtually all major business tax forms and publications in one list.

Just go to http://www.treas.gov/stawrs/ and click on “Forms and Pubs.”

Source: Simplified Tax and Wage Reporting System—”STAWRS” (a joint effort between several federal agencies), December 22, 1998.

At popular request, here is a recap of the sexual harassment cases from 1998.

Booker v. Budget Rent-A-Car (U.S. District Court—Tennessee).

Summary:
This case involved a racial harassment claim by an African-American Budget Rent-A-Car manager. In addressing the manager’s claims, the federal court specifically applied the standards set out in Ellerth and Faragher. The employer was found liable because, although it had an anti-harassment policy in its manual, it could not prove that the policy had ever been distributed to employees or that managers had received any sort of training with respect to issues of racial harassment. Under these circumstances, Budget could not meet the standard of showing that it had taken reasonable care to prevent the harassment.

Implications for Employers:
Budget Rent-A-Car not only extends the earlier Supreme Court cases beyond the area of sexual harassment into racial harassment, it also underscores how important it is for employers not merely to adopt anti-harassment policies, but also to widely publicize them among employees and to provide meaningful training for management.

Source: Jackson, Lewis, Schnitzler & Krupman, White Plains, NY, December 14, 1998.

Korn/Ferry did an intensive study of successful minority executives. From their findings they are offering these suggestions to corporations to help retain the executives:

Ensure internal corporate support to help advance minorities’ career goals and give timely and specific feedback about performance.

Construct job responsibilities and roles so that minorities have the authority to impact the broader picture of the organization and can contribute to decisions and strategy, problem solving and policy making.

Identify and train informal mentors to advocate upward mobility.

Build a workplace community that supports open dialogue to discuss perceived discrimination that could impede minority advancement.

SOURCE: Korn/Ferry International, New York, December 10, 1998

At popular request, here is a recap of the sexual harassment cases from 1998.

Gebser v. Lago Vista Independent School District (U.S. Supreme Court).

Summary:
Decided before Ellerth and Faragher, the Supreme Court held that a school district was not liable for sexual harassment because it had no actual notice of, nor did it display deliberate indifference towards the alleged harassment. The case involved a sexual relationship between a female student and a male teacher. The teacher was terminated following discovery of the affair. The student never reported the relationship, and there was no evidence that the school district was aware it.

Implications for Employers:
This case narrowed the protection afforded to students, unlike the Ellerth and Faragher cases, which expanded the protection, afforded to employees. Because this case arose under Title IX, which applies only to educational institutions, it is not clear if the Ellerth and Faragher holdings would protect school districts.

Source: Jackson, Lewis, Schnitzler & Krupman, White Plains, NY, December 14, 1998.

What questions should you ask employees to determine their satisfaction level? HR Solutions, Inc. has found that asking employees whether they agree with the following statements is very effective:

• This organization encourages employees to use the grievance procedure if there is a need.
  
  
• Senior management communicates the information that I need and want to know about the organization.
  
  
• I feel free to go to a “higher boss” than my immediate supervisor to discuss any problems that are bothering me.
  
  
• My supervisor keeps me informed about matters affecting me.
  
  
• There is reasonable consistency between departments in how policies are administered/followed.
  
  
• Senior managers of the organization come through my work area often.
  
  
• The management of this organization is genuinely concerned about the employees.
  
  
• The Human Resources department is a place where I can freely discuss my work-related or personal problems.
  
  
• I feel I have job security.
  
  
• Senior management responds to employees’ problems in a fair manner.
  
  
• I trust my supervisor.
  
  
• I would proudly recommend this organization as a good place to work to a friend or relative.
  
  
• My immediate supervisor is friendly and helpful.
  
  
• I feel comfortable or free to express new ideas and work methods which I feel will help this organization.
  
  
• I have thought of resigning in the last six months.

SOURCE: HR Solutions, Chicago, IL, January 1999