“Carlos, there is no need to feel that you are going to lose your job. If at this time you do not feel comfortable returning to work, you can stay home without penalty and take the time unpaid.”
That email, sent from Tesla’s acting human resources director to a now terminated employee, will be central to that employee’s wrongful termination lawsuit pending against the automaker.
The employee claims that Tesla retaliated against him because he pressured the company to release information about its health and safety protocols following reports of employees testing positive for coronavirus after returning to work in late May.
The timing does not look great for Tesla. The “you can stay home without penalty” email came one day before the employee spoke out against Tesla at a news conference about conditions at the plant and his fear of returning to work … and one day prior to Tesla emailing the employee to tell him his job was at risk.
Within hours of that news conference, Tesla’s human resources department emailed a “Failure to Return to Work” notice, advising of termination without an immediate return to work. The employee (and a co-worker who received a similar notice and also openly questioned the company’s safety during the pandemic) opted to remain on unpaid leaves because of their health and safety concerns. They claim their terminations are in retaliation for their vocal questioning of their employer’s commitment to safely reopening and operating its manufacturing plant.
There is nothing inherently unlawful about ending an employee’s leave of absence and requiring their return to work (even during this pandemic). However, when an employer ends the leave within hours of an employee openly and vocally challenging health and safety issues, retaliation becomes a real concern.
Whistleblower retaliation is one of the biggest legal risks facing employers during this pandemic. OSHA, the National Labor Relations Act, and myriad state laws protect employees from retaliation for raising health and safety concerns at work. Instead of risking a lawsuit by removing a “difficult” employee from the workplace, employers should view them as an opportunity to improve. Why are they raising issues? How do they feel unsafe? What can we do to improve and make all employees feel safer? If we are doing everything we can to provide as safe of a workplace as possible, how do we communicate that fact to employees?
Far from an opportunity to terminate, employee health and safety complaints (always, but especially during this pandemic) present an opportunity to listen, improve, and strengthen your relationship with your employees. Employers that do not understand this opportunity are risking dangerous and costly retaliation lawsuits.
A month ago I reported on a novel lawsuit filed against McDonald’s Corporation in which the plaintiffs sought to have the fast-food conglomerate’s alleged failure to comply with health guidance and provide PPE to its employees declared a public nuisance.
Last week, the judge granted the plaintiffs a preliminary injunction, concluding that they were likely to succeed on the merits of their claims. In so ruling, he concluded that the company fell short in its obligation to keep safe its employees and its customers.
An issue in the case was McDonald’s exception to its face-covering and social distancing policy, which states, “Please note that individuals may be closer to each other than 6 feet, and pass each other momentarily, as long as it’s not for a period of 10 cumulative minutes or more.”
The court did not find that policy was reasonable (or likely to be lawful) under any set of circumstances during this pandemic.
McDonald’s has created an environment that leads employees, including managers, to believe they can take off their masks and stand within 6 feet of each other as long as they do not do so in excess of 10 minutes. This increases the health risk for the employees, their families and the public as a whole and conflicts with the Governor’s Order on social distancing potentially undoing any good it has done as we fight this incredibly contagious disease. …
“Trying your best” in a pandemic can still cause substantial interference with the public health in a pandemic, especially when employees are not expected to remain 6 feet apart for periods of less than ten minutes. Defendants’ inability to ensure that employees are appropriately covering their face when not 6 feet apart is unreasonable given the magnitude of the potential consequences. …
McDonald’s social distance training is not in compliance with the Governor’s Order, nor has the Court been made aware of any CDC guidance that supports McDonald’s 10 minute exception to social distancing protocol. …
This potentially hazardous combination contradicts the Governor’s Executive Order and Illinois public safety guidelines on social distancing which require people to maintain a 6 foot distance from each other or wear a mask. The current McDonald’s environment leads employees, including managers, to believe they can take off their masks and stand within 6 feet of each other as long as they do not do so in excess of 10 minutes. This increases the health risk for the employees, their families, and the public as a whole and conflicts with the Governor’s Executive Order.
This is the opinion of one judge in one state court on a novel legal theory. However, it does illustrate that employers are taking some (a lot of?) legal risk if they ignore, flout, misstate, or misapply state or local safety and reopening rules. Learn the rules for your jurisdiction, and train your managers and supervisors on them so that they can enforce them to keep everyone as safe (and legally compliant) as possible.
While the buzzword “the future of work” is often thrown around as if it’s the new, exciting, sexy thing, it just refers to a reality that’s always been true. The economy changes, technology changes, and social trends impact the way people want work. Workforce management — as a field that relates to employees’ wages, schedules, promotability and more — can be impacted by large economic and social trends as well as technology.
Smart workforce management professionals pay attention to what trends impact their organization and workforce and plan ahead. Some trends relate to the COVID-19 pandemic and others relate to forces that existed much before that.
Based on information from various reports and expert interviews, these workforce management issues are some of the most immediate for 2020 and what practitioners should be thinking about.
Employee safety
In environments like factories, workplace safety has always been a point of focus, while the same could not be said for the average retailer or office setting. “All of a sudden, that’s changed,” said Matt Stevenson, partner and leader of Mercer’s Workforce Strategy and Analytics practice. Due to COVID-19, employers are concerned with how the work environment must change to ensure employee safety.
Currently, this is one of the most significant workforce management issues, he said. I’s impossible to predict how long this hyper-focus on employee safety will last. He surmised this depends on whether a COVID-19 vaccine is developed and when.
Stevenson gave the example of polio. Before the vaccine it was a serious threat, and there were polio epidemics globally. After the vaccine was created, safety issues related to polio stopped being a concern. On the other hand, he added, viruses like HIV still don’t have a vaccine decades after being identified in 1981.
One outcome of COVID-19 is that certain jobs are done differently, Stevenson said, especially with remote work. Some organizations did not change their operating models because they didn’t have to, and the pandemic made it so they did not have a choice.
For example, the use of telemedicine has grown since the pandemic started, Stevenson said. Telemedicine has existed for years, but there was some resistance to it, and it was often underutilized. With a pandemic that limits physical contact, people began embracing telemedicine. It’s possible this trend could continue after the pandemic ends.
That’s what happened with retail stores, Stevenson noted. Online shopping for goods of all types is the norm these days, although consumers still can visit brick-and-mortar locations.
Industries like hospitality, leisure and travel have been especially impacted by the pandemic, he added. It’s difficult to imagine how a shift to something more online-friendly would look for these organizations.
The future of the physical workplace
Whether remote work will be as accepted after the pandemic ends is still unknown, but there’s a possibility that organizations will be more open to a largely remote workforce.
As employers think about their return-to-work plan, they may start with only bringing people in they have to, Stevenson said. From there, a large portion of the workforce may remain remote. This could lead to a big picture question of, “Do I need this big, expensive office space if I can just have employees work from home instead?”
This is already happening in the tech sector. Twitter recently announced that staff can work from home permanently.
Not enough flexibility for employees
Deloitte’s “2020 Global Human Capital Trends” report highlighted organizations that took employee-friendly approaches — giving employees more jurisdiction over their work schedules and offering them new flexible time off programs. These approaches are designed to allow employees to “live and work at their best” ultimately had positive impacts for companies. Company culture was improved, and teams saw better communication and collaboration.
More flexibility is good for worker well-being, which is good for business, according to the report. It surveyed respondents on how they have redesigned work to promote well-being in the organization. The top three answers were “giving workers more autonomy in how they do their work” (45 percent of respondents), “using technology to promote connectivity and collaboration” (41 percent) and “increasing flexible and/or predictable scheduling” (39 percent).
“Worker input is critical to understand what changes to work practices may have the greatest impact on well-being,” the report noted. For organizations who want to take this route, they need to think about how to get that employee input and act on it.
Interestingly, the report also noted that forward-thinking organizations should “stop obsessing about generations,” which leads to too many oversimplifications about employees. Ultimately most people, regardless of their generations, want many of the same things in a workplace — including their preference for flexible schedules.
A larger focus on workforce science
Mercer’s “Global Talent Trends 2020” report highlighted the need for HR and workforce management professionals to get better at workforce science — a practice that can help professionals address many workforce management issues. For example, the survey found that only 24 percent of respondents said their organization has data on who is at risk of burnout. Only 43 percent of organizations surveyed used metrics to identify employees likely to leave, and only 18 percent have looked at the impact of pay strategies on performance. This is an area organizations can improve on in future years.
The report didn’t paint a grim picture, though. Mercer’s surveys have found that the use of predictive analytics has increased from 10 percent in 2016 to 39 percent in 2020. While there’s more employers can be doing with analytics, they’ve also been stepping up their game the past five years.
“The good news is that the workforce science discipline is gathering momentum,” the report stated. “That said, insights into workforce management could be adopted more widely.”
Human resources professionals are assessing termination procedures following the February workplace shootings at the Henry Pratt Co. manufacturing plant in Aurora, Illinois.
Michelle Lee, HR director for the Wynright Corp. in Elk Grove, Illinois, noted, “While we review and evaluate our policies on a regular basis, this situation emphasizes the importance of protecting our employees. We are going to partner more with local law enforcement to ensure they understand the make-up of our facilities and employee population. In some cases, we may have them on premises for risky terminations.”
Courtney Templin, president of the Chicago chapter of the Society for Human Resource Management, said, “Our jobs as HR professionals are never easy and it’s at times like this when we feel the real weight of our roles.”
The Feb. 15 shooting by a 15-year employee being terminated that day killed five employees, including the HR director and an HR intern on his first day on the job, and wounded five police officers.
According to federal government statistics, there were 458 workplace homicides in 2017, of which 351 were committed with a gun.
Melissa Boyce, Xpert HR
Melissa Boyce, an attorney and legal editor for XpertHR, said employers should review what they can and cannot do to lawfully restrict employees’ weapon possession on workplace property.
Virtually all workplace shootings fit the category of targeted violence, said Randy Van Dyne, a consultant for the University of Findlay’s All Hazards Training Center in Ohio, which offers workplace violence prevention programs.
The shooter’s main motivation is to get even with a person or organization for perceived injustices, said Van Dyne, adding such events are often preventable because the perpetrator presents signs including ideation, planning, preparation and implementation.
Communication with volatile employees is key, said Charles Krugel, a Chicago-based management-side labor and employment lawyer.
Michelle Lee, HR director, Wynright Corp.
When no threats are present, respond quietly and calmly. Don’t take the employee’s behavior personally. Asking questions respectfully demonstrates that aggression isn’t necessary, he said.
“An apology may calm the person and encourage cooperation,” Krugel added. “Say, ‘I’m sorry to hear this happened. What can be done to solve the problem?”
Summarize the employee’s comments.
“In a crisis, a person feels humiliated and wants respect and attention,” he said. “Focus on areas of agreement.”
Ask an upset employee calmly and firmly to lower their voice and state, “There will be no disruptions here. Please be patient so I can understand what you need and try to help you,” Krugel added.
In continued disruption, tell the individual they can be disciplined or prosecuted, state that the discussion is over, and ask them to please leave or the police will be summoned, Krugel said.
If the individual seems dangerous, find a quiet, safe but not isolated place to talk.
“Maintain a safe distance, do not turn your back,” said Krugel. “Leave the door open or open a closed door. Sit near it.”
Ensure a co-worker is near to help if needed.
Using a calm, non-confrontational approach, allow the person to describe the problem.
Ensure the employee’s hands are on the table, said Van Dyne.
Avoid touching the individual to remove them from the area; a gentle push or holding their arm can be misinterpreted as assault by an agitated individual who may respond with violence or a lawsuit, Krugel said.
“Use a prearranged distress signal to have another staff member alert a supervisor and/or police,” said Krugel. “If you fear a violent response, do not mention discipline or the police.
“If the situation escalates, find a way to excuse yourself. Say, ‘You’ve raised some tough questions. I’ll consult my supervisor to see what we can do.’ ”
Who is present at a termination meeting depends on the situation.
HR directors set a neutral and consistent tone, deflect high emotions and ensure company procedures are followed to help ensure others’ safety and maintain the security of confidential information, Lee said.
The Aurora case also was influenced by labor union representation, said Krugel, adding there are laws and rules that apply regarding the National Labor Relations Act and the plant’s collective bargaining agreement.
At Lee’s company Wynright Corp., managers and HR role play before termination meetings to ensure they are fair, consistent and concise, said Lee.
HR consultant Carol Semrad of C. Semrad & Associates in Chicago and Chicago SHRM chapter treasurer, suggested the presence of one person “who can most influence that person being let go. Sometimes people in different positions have different amounts of social currency with somebody.”
Termination has always been one of the most uncomfortable and cautious situations employers have to approach, said Monika Bowles, HR director for the Village of Royal Palm Beach, Florida.
“You don’t really know the mind of the person you’re dealing with,” said Bowles. “When you terminate someone, do it without demoralizing them. There are huge repercussions and consequences to terminating somebody that has far more reach into their lives than we tend to think about.”
Supportive measures might include offering outplacement services, resume writing and if appropriate, a letter of reference.
Lee keeps terminations brief and schedules them at the day’s end when fewer employees are on site to minimize the employee’s embarrassment.
“Don’t have anyone near the terminated employee they may want to get even with,” said Van Dyne. “Wish them best and get them on their way.”
Semrad advises clients that if they believe a termination may involve risk, notify building security and potentially law enforcement to alert them of the meeting time.
