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Sample Requirements Record

Below is a sample “requirements record,” which outlines theresources, constraints, and other parameters of a project.


Project Title: The Jacksonville Company Management Information System


Project Manager: Michael James


Date: May 14, 2002


Requirement:


A Management Information System (MIS) to support a corporate officeconsisting of fifty people. The MIS will produce forms, reports, data, andanalyses specified by the Information Systems Department’s needs analysis (MISNeeds Analysis, dated January 30, 2002). The MIS will be operational no laterthan April 1, 2003.


Assumptions: The following assumptions have been made in determining theresource requirements for this project:

  • Jack Smith will be assigned as the technical lead for the project

  • Jean Jordan and Bill Williams will be available 50% of their time tosupport the project manager with clerical and financial assistance

  • The IS department will complete their technology assessment by June 1, 2002

  • This project has priority one status

Constraints:

  • Given the number of competing projects at Jacksonville, the schedule can bemet only with complete functional area support of resources and materials

  • A budget of $200,000 may be insufficient to support IS’s technologyrecommendations

Required Resources:

  • Technical lead

  • Two full-time programmers

  • One part-time programmer

  • Two design engineers

  • One systems engineer

Functional Groups Participating:

  • Engineering

  • Information Systems

  • Software Development

From “The Project ManagementWorkshop,” © 2001 James Taylor. Allrights reserved.


Published by AMACOMBooks, Division of AmericanManagement Association, 1601 Broadway, New York, NY 10019, To order call:800/262-9699.

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An Organizational Myth Three Managers and a Work Plan

Once upon a time, there was an organization. It was a big organization. Manypeople worked there. The executives of this organization were smart. They readbooks, attended conferences, and listened closely to wise consultants. And theyhad their own good ideas, too.


    The gurus told them of the future. A future of more profits and moresuccess — if they would only manage work and people more wisely. The words wereconsistent. “Your people are your biggest asset.” And the executivesbelieved.


    Gurus were asked to help, at great expense. They interviewed the executives.A “Mission Statement” was drafted. “Strategic Goals” wereestablished. “Value” statements were created, framed and hung on wallsthroughout the big organization. These statements described the importance of”Customer Focus,” “Employee Development,” and”Shareholder Value.” Managers and employees in the big organizationwere asked to believe, and to help.


    But the executives had questions. Their questions demonstrated great wisdom.”How can we engage our people to help us grow profitably, year afteryear?” they asked.


    From the mountaintop they heard the answer from the gurus. The answer wasclear and consistent. It echoed through the valleys below. The answer was, “Develop work plans that hold people accountable,” and, “Recognize andreward people for the achievement of their work plans…” And theexecutives believed.


    Much time, effort and expense was spent developing and implementing the”work plan” concept. Gurus were brought down from the mountaintop.They created information packages around the new “work plan”initiatives. Management was trained. Employees were educated. They learned why”work plans” were important. They understood how “work plan”achievements would be recognized and rewarded. And everyone believed.


    Time went on. “Work plans” became part of the big organization’sculture. It was different, and it helped focus what work was getting done. Trueto their word, the executives recognized and rewarded people who achieved theirwork plans. The process seemed to be working. Productivity and profitabilityimproved, for a while. Then it slowed down.

From the mountaintop they heard the answer from the gurus. Theanswer was clear and consistent. It echoed through the valleysbelow.

    The executives became concerned. Employee morale sank. Staff turnover rose.The executives turned to the gurus with more questions. “What ishappening?” they asked. And the gurus came down from the mountaintop again.They conducted compensation surveys. They consulted with other gurus. Theyinterviewed management personnel and employees. They offered their answers. “Retaining staff is an industry wide problem … you need to re-structure… you need to pay more money for some people because of their ‘in-demand’skills.” The executives believed, and they acted.


    Morale did not greatly improve. Turnover was still too high. Frustration andconfusion reigned. “We need more and better measures of what is goingon,” said the executives. More gurus were brought in to help. More moneywas spent. Employee attitude surveys were conducted. Gurus analyzed the results.Recommendations were made and implemented. They coached, and they trained.Still, things were not good at the big organization.


    During this time there were three managers. They knew each other byreputation only. All three were effective managers, and all believed in the”work plan.” But they did their jobs quite differently.


    One manager, Sam, was politically astute. He made sure that his work plan wasachieved every year. He made sure that the work plans of his subordinates wereachieved, too. Sometimes it was necessary to discipline people for not achievingtheir work plan. Sometimes he even let good employees go when they “underperformed.” This made him feel bad for a while. So, he learned how to makea work plan just a little less challenging to ensure its successful achievement.


    Sam spent time getting to know and be known by senior management. Life wasgood. His team looked good. They achieved their work plans, and they wererewarded well.


    The second manager, Sally, was intensely focused on work plans. Her workplans were very challenging. She made sure that her work plan was achieved everyyear, at any cost. Sally made sure that the aggressive work plans of hersubordinates were achieved, too. She encouraged them to do so at any cost.Sometimes she needed to coach other people on how to build and manage effectivework plans.


    Sally and her team were very well recognized and rewarded by the executive.Life was very good. Sally got promotions and bigger management responsibilities.She didn’t stay very long in any particular job. Her staff did very well too.They spread out and moved up in the big organization, and Sally’s style wascloned — because that was a successful style.


    The third manager, Sue, was smart too. But her style was quite different thanSam’s or Sally’s. Sue knew work plans were important to measure what got done.But for her, it was just as important to recognize how the job got done. Shebelieved in the mission statement. She believed in the strategic goals. And, shebelieved the values that hung on the walls throughout the big organization. Sheheld her employees accountable for believing them, too.

Sue showed fairness, appreciation, respect and recognition for thethings that didn’t always show up in an employee’s work plan.

    Sue also developed and evaluated job descriptions with these values in mind.She believed in hiring and promoting with experience and skills and withdemonstrated abilities that related to the goals and values of the organization.She managed people according to their assigned work plan and the behaviors theydemonstrated on the job. Sue sponsored training opportunities for her staff–butonly if the training was job specific and relevant to values and goals. Sue alsoasked others to participate in performance appraisals, both from inside andoutside the organization. For both her, and her staff.


    Sue wanted to make sure that in everything she did, sincere respect wasconsistently demonstrated. Towards the big organization, her boss, her peers,her customers and her staff. Sue recognized that lasting and true change towardsproductivity and profitability did not have a time line. And, that it would notbe driven by the “work plan” alone.


    Well, Sue attracted and retained staff better than any other managers. Infact, people asked to work for her. She had staff who were motivated by theirwork. They believed in her leadership, because she had first demonstrated beliefin them. Sue showed fairness, appreciation, respect and recognition for thethings that didn’t always show up in an employee’s work plan. That was unusual.Sue proved that there was truth in the saying that money is not the only reasonthat people stay with an organization.


    Some days, it was hard for Sue to keep true to her convictions about what wasreally important. It was particularly hard on those days when Sam and Sally hada very high profile with the executives. But she knew she was right, and shestayed the course.


    Over time, it was recognized that reward and recognition programs based onachieving the work plan only had mixed results. Sometimes people from Sam’sgroup, who completed less-than-challenging work plans, were promoted. Thisstarted to show up in less-than-impressive financial results. Someone asked,”Who is ensuring that all work plans, across all organizational areas, areappropriate for the skill and pay level of all employees?” There was noanswer to the question. Then a better question was asked, “Who isinterested in trying to do that job successfully?” There was no response tothat question, either.


    Over time, it was also noticed that sometimes people were promoted becausethey completed work plans at any cost. The executives had begun to recognize theValues and Goals on the walls didn’t matter. It seemed that being “justlike Sally” was what really counted.


    The executives took the time to find out what Sue was doing. They decidedthat respect, integrity and values towards employees, as well as customers, wascritical to long term productivity and profitability.


    So the gurus were sent away. Executives and managers drew on their ownknowledge and management skill. They looked at not only how they were managingwork plans, but also how they were managing people.


    They built the organization’s values into every human resource managementactivity. They included values in how jobs were described and paid. Theyincluded values in the recruiting process. They ensured that Values were a bigpart of the reason why people got promoted. They recognized and rewardedmanagers for demonstrating values in their management style. They managedemployee performance according to both the skills and the values demonstrated onthe job. They asked their customers to participate in performance feedback. Theytrained employees whenever “gaps” between expectations and performancewere noticed.


    And the management noticed. And the employees noticed. And the customersnoticed. Productivity and profitability returned. And they returned to stay. Andthe big organization became known far and wide as a great place to work. Andthat how the job was done was just as important as what was done.

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Six Steps Toward Meaningful Performance Management

For individuals to be successful, the organization needs to besuccessful,” says Jane Weizmann, senior consultant for Watson WyattWorldwide. “So at best-practice organizations, the assessment period getsthe least amount of energy. The biggest part of the energy is in the planningperiod.”


    Weizmann offers the following tips on channeling that energy constructively:


  • Link the performance-management calendar to the organization’s businesscalendar. This way, performance planning is coordinated throughout the entire organization. “You tell your employees, ‘Here’s what we’ve got todeliver this year and here are the roles everyone’s going to play. We need toknow what development interests you have, and by the way, we have somedevelopment needs that you’ll have to grow with.’ “


  • Conduct a mid-year review. With mid-year financial results in hand, you canrecast your plans to meet changing conditions. “By the end of the year,then, it’s in the bag. And as much energy goes into planning for the next periodas goes into evaluating the past.”


  • Articulate a set of role-based competencies. First, let every employee knowthe five or six qualities that define success for every member of theorganization, regardless of job description. Then let every employee know howthose qualities translate into performance in specific jobs. “This tellsthe employee what they can expect of their leaders, as well as their coworkers.Expectations, then, are not disputable. They’re in the role. They’re well-documented.”


    Thus, whenreviews are conducted, employees and managers do not get bogged down indiscussions of whether or not a specific behavior is important. The focus isshifted to a discussion of how well the employee met expectations and how thoseexpectations might change in the coming year.


  • Set developmental guidelines for your employees, based on their roles in the organization. Make sure that employees understand the kinds ofdevelopmental opportunities they will have to take advantage of if they want to grow intheir jobs and move on to positions of increasing responsibility.


  • Don’t get bogged down in paperwork. “Paperwork has to facilitate theprocess. Anything you can do to assure the face-to-face discussion ofperformance between the individual and the manager is what counts. The papercan’t be the end result.”


  • Focus on leadership. “One of the things that leaders do is setexpectations and coach. You want to line up your needs with the employee’sneeds. Do whatever needs to be done to get that to happen.”


Workforce, May 2001, p. 38— Subscribe Now!


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A Return to At-Will Employment

John Guz appeared to have a lot going for him. He’d started out as anadministrative assistant at Bechtel Corp., earning $750 a month, and had risenby age 49 to financial reports supervisor. His salary had increased to $5,940 amonth, and his employer, a San Francisco-based defense contractor, had given himgenerally favorable performance reviews.


    But in December 1992, Guz’s immediate superior dropped the bombshell. Hisunit was being disbanded, the manager said, and he was being laid off. Aconfirmation letter from Bechtel referred to “the downturn in ourworkload.”


    Guz did not go quietly. He sued Bechtel, alleging wrongful termination andhoping to take advantage of California law that protects at-will employees.According to the landmark 1988 ruling in Foley vs. Interactive Data Corp.,employees who meet certain criteria-including longevity, promotions, raises, andfavorable reviews-can show an “implied-in-fact” contract, to bedismissed only for good cause.


    The case of Guz vs. Bechtel National, Inc., went all the way to theCalifornia Supreme Court. The court’s unanimous ruling, issued in October,turned out to be another bombshell.


    The so-called Foley criteria established 12 years earlier do not, in and ofthemselves, “constitute a contractual guarantee of future employmentsecurity,” the justices said. Since Bechtel’s own written personneldocuments “imposed no restrictions upon the company’s prerogatives toeliminate jobs or work units, for any or no reason,” Guz had noimplied-contract case to take to a jury.


    Plaintiffs’ attorneys were shocked. “The implied contract that [anemployee] had an option of proving based on the Foley decision is now almostimpossible to prove,” laments David H. Fielding, a partner with the firm ofBushnell, Caplan & Fielding in San Francisco.


    While the Guz case applies only to California, its impact may be more widelyfelt. As labor law experts note, the state has led the country in moving awayfrom reliance on at-will language in employee manuals to more nuanced theoriesof implied contract. At least 20 states from Maine to Hawaii limit discharges inparticular circumstances. “Some have been moving [toward implied contracts]a piece at a time, others more rapidly,” says Peter Eide, director of laborlaw policy at the U.S. Chamber of Commerce.


    Montana in 1987 enacted a comprehensive statute making termination withoutgood cause unlawful. But the act also severely limited the amount ofcompensation that employees could receive for a wrongful discharge.


    In California, the presumption of at-will employment goes back to the 19thcentury. Section 2922 of the Labor Code states: “An employment, having nospecified term, may be terminated at the will of either party on notice to theother.” However, starting in the politically more liberal 1970s, courtsbegan applying the doctrine of implied contracts to the employment relationship.


    In 1973, Wayne Pugh was fired by See’s Candies after 32 years with the candymaker. When he asked for a reason, See’s president told him only to “lookdeep within [him]self.” Eight years later, a state court of appeals handedPugh a landmark victory in his wrongful-termination case. Reversing a trialjudge, the court said there was evidence that See’s had breached an impliedpromise not to discharge without good cause.


    With the Foley case, employers attacked the Pugh precedent. Complaining thatit “destroys the centuries-old solid and settled principle” of at-willemployment, they urged the state supreme court to accept only express contractprovisions as evidence that an employee required good cause for termination. Butthe court held fast, concluding that the Pugh decision “correctly appliedbasic contract principles in the employment context.” The Foley case, whichinvolved a plaintiff who had worked his way up the corporate ladder fromdishwasher to vice president, also endorsed Pugh’s criteria for proving animplied contract. “Plaintiff here alleged repeated oral assurances of jobsecurity and consistent promotions, salary increases, and bonuses during theterm of his employment, contributing to his reasonable expectation that he wouldnot be discharged except for good cause,” the court said.


    HR departments took notice. They made it their standard practice to avoidliability by stressing at-will provisions in their employee materials and bydocumenting good cause. “There can be … close to no doubt that there areactual grounds for termination,” says Marty Palecki, HR director for RanchoSanta Fe Technology in San Diego. Adds Fielding: “Every HR department isalways very concerned about having justified their actions” in terminatingan employee. And California cemented its reputation as one of the morepro-employee states.


    But states such as New Mexico, Nevada, and Idaho have remained resolutelypro-business. Longevity and a policy of warning before discharging an employeeare not sufficient to infer an implied contract, an Idaho appeals court ruled in1996. And now California, with the Guz decision, appears to have turned back theclock.


    In his lawsuit, Guz claimed that he and Bechtel had an agreement that hewould be employed as long as he was performing satisfactorily and would bedischarged only for good cause. While there was no express understanding, hesaid it could be inferred from several of the Foley criteria. Bechtel, on theother hand, insisted that Guz’s at-will status was “conclusivelyreinforced” by its own personnel policy, which specified that employees”have no…agreements guaranteeing continuous service and may be terminatedat [Bechtel’s] option.”


    The Supreme Court conceded that “disclaimer language in an employeehandbook or policy manual does not necessarily mean an employee is employed atwill.” But after declaring that Guz’s longevity was not enough for him torequire good cause, it then described Bechtel’s written personnel documents as”the sole source of any contractual limits on Bechtel’s rights to terminateGuz.” And those documents, in turn, “imposed no restrictions upon thecompany’s prerogatives to eliminate jobs or work units, for any or no reason,even if this would lead to the release of existing employees such as Guz.”


    The court’s ruling left Guz with virtually no case to take to a jury. It leftplaintiffs’ attorneys dismayed. “The court was out of sync withreality,” says Fielding, noting the way HR departments have adapted toFoley’s restrictions. “They placed undue reliance on the at-will languagein the Bechtel employee manual.” But those who represent employers believethat the justices returned to fundamental legal principles. “This is a signthat California is going to honor what the [Labor Code] statute says –employmentcan be made at will,” says Wendy M. Lazerson, an employment attorney atHolland & Knight in San Francisco. “Maybe the courts are realizing thatif you’re going to have a healthy economy, you can’t make it so difficult to dobusiness.”


    Lazerson does not see the ruling as anti-employee. “It’s just a balanceddecision. [After Foley], things were so skewed to employees, there were reallyno rules that employers could follow.” At the California Chamber ofCommerce, general counsel Fred Main calls the implied contract “close to afiction,” for plaintiffs to use in order to avoid at-will provisions.Employees can still claim wrongful termination on the basis of a violation ofpublic policy, such as discrimination, he says. But “run-of-the-millclaims…are going to have a very difficult, if not impossible, hurdle toovercome.”


    Main does warn, however, that the labor lobby may turn to the Californialegislature. “I would be very surprised if there’s not some bill [thisyear] that either completely overturns Guz by eliminating at-will doctrine orsubstantially limits it,” he says. One limit could establish length ofservice as evidence of an implied contract.


    “The ability to limit in some way at-will employment has been an issuefor 20 years,” Main adds. “I think it would be another toughfight.”


Workforce, May 2001, pp.42-46 — Subscribe Now!

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A Strategic Hiring Solution

Unlimited media choices can sometimes seem overwhelming.
    Today’s options for posting career opportunities are staggering. Recruiters havethe option of promoting jobs on potentially thousands of sites on the Web. LucentTechnologies realized the need to better focus their e-media resources.

    Although they were currently using an applicant tracking system, they wanteda more effective way to manage their job postings to career sites. Lucent believedtheir recruiters were spending too much time searching for the “ideal”site for particular jobs. They wanted a solution that would allow recruitersto utilize their time more effectively and focus on what they do best — findingthe most talented candidates for the company. Lucent turned to us and foundthe answer in HodesiQ.


Hodes iQ’s powerful media evaluation engines reveal the choice sites.
    Hodes iQ is a suite of powerful e-sourcing management tools, each designed tosolve specific recruiting challenges. The suite includes an advanced job postingmanager, an easy-to-use response manager, and a flexible corporate career sitehosting service.


    Lucent decided Hodes iQ’s job posting manager was the answer. The job managerimmediately exposed Lucent’s recruiters to the ideal career sites for theiropen positions. Recruiters gained access to the vast Hodes iQ e-media knowledgebase that includes thousands of sites — from free job boards, industry associations,general career sites, and industry mailing lists, to niche sites, discussiongroups, college boards, and diversity sites.


    More importantly, they had Hodes iQ’s media evaluation engines working on theirbehalf, selecting a set of media choices that are most appropriate for a particularjob.


    With this information in hand, Lucent’s recruiters could quickly find nichesites for their openings. Hodes iQ became an eye-opener to a new set of e-mediachoices. The client also took advantage of Hodes iQ’s powerful career site contractmanager, giving them the option of separating their contracts between operatingcompanies, divisions or even recruiters. Each can be tracked and billed accordingto specific needs. Lucent found that keeping track of expenses and activitybecame simple as a result of consolidated billing and one-click access to mediaactivity reports.


A complex posting process becomes a strategically automated operation.
    By using Hodes iQ, Lucent recruiters were exposed to a new set of e-media choices.This efficient solution saved the client time and money and rapidly turned theircomplex posting process into an automated operation. They also centralized efforts,allowing them to establish a consistent employer image and to maximize theire-media investments by tracking candidate response.


    Additionally, Lucent found that “consolidating the management of theirmedia contracts was a huge time-saver; and the fact that billing was centralizedwas very convenient.” Hodes iQ was able to provide a simple way for recruitersto quickly find niche sites for their openings, and also made the managementof the posting process much easier.

About Bernard Hodes Group:


As a fully integrated communications company, Bernard Hodes Groupoffers a full array of services to clients in the human resource industry. Theseservices range from advertising, applicant management, consulting, mediaplanning, and employer branding to assessments and metrics, research, resumesourcing, Web development, and more. The company is headquartered in New York,with over 70 offices and affiliates around the globe. Bernard Hodes Group is asubsidiary of the Omnicom Group (NYSE: OMC), the world’s largest communicationsgroup.


For more information on Hodes iQ, contact Bernard Hodes Group at 877/220-0201 or visit hodesiQ.com. For other Bernard Hodes Group products and services call 888/438-9911, or visit hodes.com.

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New Risks Appear for Temp Staffing

Just as staffing industry members and their business clients were digestingthe $97 million settlement in the Microsoft employee misclassification case, theEEOC issued its “Enforcement Guidance Applying the ADA to TemporaryStaffing Agencies.”


    While Microsoft and related misclassification cases based liability onviolations of tax and employee benefits law, the EEOC Guidance focuses onemployment liability. It opens a new door of legal risk: compliance with theADA.


    In many ways the Guidance casts a larger net of legal risk than the highlypublicized Microsoft case. First, it covers all temporary workers (and temporaryworker candidates), not just “permatemps” — the significant butrelatively small segment of the multi-million member temporary workforce whowere the plaintiffs in Microsoft and related employee misclassification cases.The pool of potential litigants is far larger than the potential “permatemp”plaintiffs filing Microsoft-type misclassification cases.


    Second, it combines the ADA’s stringent and controversial legal requirementswith the broad reach of co-employment — the legal theory imposing liability onmultiple businesses as “joint” or “co-employers” for legalviolations by any one business against any worker — and applies them to thediverse contingent workplace.


    Temporary staffing agencies and their business clients, as well as outsourcefirms providing payroll, recruitment and other administrative functions all comeunder the Guidance’s broad umbrella. With the industry’s own statistics showing90% of businesses nationwide use temporary staff, few businesses will be immunefrom this new law enforcement salvo. The result is a legal landscape filled withrisk for all parties who manage, counsel, and otherwise service the growingcontingent workforce.


    This article explores how and why this Guidance poses these legal risks, andwhat employers can do to reduce them. The first step is to understand how broadthe law’s scope really is and learn whether your company or firm is covered.Second is to learn how to manage a contingent workforce in this changing legallandscape to avoid legal risks when hiring, assigning or managing temporaryworkers.


Is My Company Covered?
    The Guidance’s scope goes beyond traditional employment discrimination lawsin three ways:

  1. The federal government is covered as an employer.
        Federal laws, including employment discrimination laws, usually exclude thefederal government from coverage. Not this time. This Guidance covers thefederal government as an employer under the 1992 amendments to theRehabilitation Act. The ADA already covers all businesses with 15 or moreemployees (and state/local government units of any size). Add our country’slargest employer, the federal government, and the scope of coverage growsdramatically.

  2. Both disabled and non-disabled workers are covered.
        Employment discrimination laws traditionally protect members of specificallyidentified population groups, based on race, gender, religious preference,national origin or other designated criteria. This EEOC Guidance covers allemployees and job applicants, whether or not they have a disability. Forexample, the ADA’s requirements covering pre-employment disability-relatedinquiries and medical examinations apply to all applicants and employees,whether they have disabilities or not.

  3. Co-employment extends liability for ADA violations far beyond staffingagencies.
        By incorporating the legal theory of co-employment, the Guidance can beapplied by courts to include client businesses and other third-party vendorfirms with which the agency does business. If a temporary worker brings a legalclaim under the ADA against a business or staffing agency, both firms can beliable for costs of reasonable accommodation and other ADA violations. Federalcourts have applied co-employment to hold both staffing agencies and theirbusiness clients liable for each others’ violations of employment laws inseveral recent landmark cases.


        Given this broad scope of coverage, the answer to “am I covered?”is likely “yes” — whether your firm is a staffing agency or businessclient, and whether or not the employees or potential employees you hire are”disabled.” Unless you operate a small business with less than 15employees, you face the risk of unexpected legal claims for ADA violations.


        Smaller businesses with more than 15 employees who don’t have in-housecounsel need to be especially alert when dealing with staffing agencies. Legalreview of contracts with staffing agencies can be expensive, yet these costs canpale compared to the costs of potential ADA claims against staffing agencies.

Reasonable Accommodation Plus Co-employment Equals Increased Risk


    The ADA’s reasonable accommodation requirement is a cornerstone of the lawand one of the most controversial issues in ADA claims. For staffing agenciesand their clients it raises critical questions about who must provide reasonableaccommodation (agency or client) and when. Add co-employment and the foundationis laid for disputes over “who pays the reasonable accommodationsbill” between agencies, business clients and other parties. Two generalrules apply:

  1. Staffing agencies and their business clients are responsible for providingreasonable accommodations to disabled workers, and

  2. Both parties can be sued if either knows that the other has violated thelaw.

    Consider this example:

    Company X (business client) hires a temporary worker from a staffing agency.The staffing agency violates the ADA’s reasonable accommodation requirements.Even if Company X complies with the ADA, it may be a joint employer of staffingfirm workers and held liable for the staffing agency’s ADA violations if itknows or should have known that the staffing firm is not providing reasonableaccommodations but fails to take corrective action within its control.


    Furthermore, even if Company X does not qualify as a staffing firm worker’semployer, it may be liable if it interferes with the worker’s ADA rights (unlessit is a Federal agency). This is because the ADA protects an”individual” from discrimination. Therefore, an employer is prohibitedfrom interfering with a person’s employment opportunities with another employerwhether or not the person is its employee.

    The EEOC recognized the significance of this requirement and its potentialimpact on staffing agencies and their business clients. In one of its mostcontroversial provisions, the EEOC suggests that “the staffing firm andclient may wish to set out in their contracts how reasonable accommodations willbe provided and who will pay for them.”


    This suggestion raises significant questions of “who pays the bill”for reasonable accommodation for all parties, and provides further fuel forlegal disputes. It led some prominent employment law attorneys to warn thatagency contracts would have to be redrafted to protect them against the newrisks created by the Guidance.


    As described earlier, the greatest impact may be on small businesses withmore than 15 employees who have contracts with large temporary staffingagencies. They can’t afford in-house counsel, but need to protect themselvesfrom the costs of ADA-related claims which temporary workers (and candidates)may bring against the agency.


Disability-Related Inquiries and Medical Examinations
    A second major area of concern for staffing agencies and their clients is theADA’s stringent regulation of disability-related questions during three timeperiods: 1) before an offer (even a conditional offer) of employment is made toa prospective candidate; 2) after an offer is made; and 3) during employment.Again, these are complex and controversial legal issues in the”traditional” workforce. Applying them to complex contingent workforcearrangements only exacerbates the confusion, risks, and potential for legaldisputes.

  1. The Pre-Offer Stage
        The ADA prohibits employers from asking disability-related questions orrequiring medical examinations by prospective employees before a job offer ismade. This can create some difficult legal questions for staffing agencies,since an employment offer occurs when the worker receives an assignment with aspecific (business) client, NOT when a staffing agency places someone on itsroster for future assignments.


        For example, if a candidate goes directly to a staffing agency first and islater assigned to a business client, the staffing agency alone is responsiblefor providing reasonable accommodations. However, when a business sends a jobapplicant out to a staffing firm for payroll or other administrative purposes,both the staffing firm and the client business are responsible for providingreasonable accommodations during the application process. Both are at risk ifeither fails to comply.

  2. After an offer is made
        Presuming a worker has been assigned to work with a business client, eitherthe staffing firm or its business client may ask any disability-relatedquestions or require medical examinations it chooses. However, it must treat allapplicants equally. That is, ask the same disability-related questions to allapplicants for the same job.


        Consider this tricky — yet typical — scenario facing a temporary staffingagency:

    A worker signs up with a staffing agency. No offer yet; therefore, nodisability-related questions or medical exams. Then an assignment comes up veryquickly. An offer is made and accepted before there is time for pre-employmentinquiries or medical exams.

        In other words, the “post-offer” stage, with its required questionsand exams under the ADA — is skipped. Or is it?


        Not according to the EEOC! The Guidance permits either agency or businessclient to withdraw the offer if disability-related questions or medical examinations tests show theapplicant either: (1) cannot perform the essential functions of the job, evenwith a reasonable accommodation; or (2) would pose a direct threat (i.e., asignificant risk of substantial harm).


        The ADA allows the agency or client to withdraw an offer based on the answersto these questions or the results of medical examinations, if it can meet the ADA’s stringent test: Beable to show the applicant either: (1) cannot perform the essential functions ofthe job, even with a reasonable accommodation; or (2) would pose a direct threat(i.e., a significant risk of substantial harm).


        A post-offer medical examination may disqualify an individual if the employercan demonstrate that the individual would pose a “direct threat” in the workplace. While itshould be noted that our Courts continue to struggle and disagree over themeaning of these terms, disqualifying an individual under this Guidance requiresthat a significant risk of substantial harm to the health or safety of theindividual or others that cannot be eliminated or reduced below the directthreat level through reasonable accommodation must be shown. Such adisqualification must be “job-related and consistent with businessnecessity.” This post-offer medical examination cannot be based onspeculation that the disability may pose such a risk in the future.


        To avoid further confusion, the EEOC suggests that: “a staffing firmshould consider telling an applicant what medical information will be needed before a particular assignment ismade. That way, the applicant can obtain the needed information and provide itquickly if a particular assignment becomes available on short notice.” Remember, this is only a suggestion from the agency — the staffing firm orbusiness client’s right to withdraw the offer is very real.

  3. During the work assignment
        After being hired, both the agency and the business client may ask workersdisability-related questions if either has a reasonable belief that a medicalcondition will make the worker unable to do the job or will result in a directthreat. (The meaning of “direct threat” has itself been the subject ofconsiderable controversy, dispute and litigation.)


        If an individual is not hired because a post-offer medical examination orinquiry reveals a disability, the reason(s) for not hiring must be job-relatedand consistent with business necessity (another term subject to considerablelegal dispute and interpretation). The employer also must show that noreasonable accommodation was available that would enable the individual toperform the essential job functions, or that accommodation would impose an unduehardship.

Increased Litigation?
    Will the Guidance ignite an explosion of new litigation? The ingredients arein place. Consider the growing numbers of workers with disabilities seekingemployment. Consider the expenses of providing reasonable accommodations at atime when cost-cutting has become a necessity for most employers. Consider othervague yet stringent requirements for ADA compliance. Consider heightened EEOCenforcement efforts targeting temporary staffing agencies.


    Temporary workers have been motivated by recent high-profile cases likeMicrosoft and are learning how to assert their legal rights, aided byplaintiffs’ lawyers who recognize the power of co-employment and the far reachof liability it provides.


    These issues sound like fodder for hungry lawyers representing all parties inthe diverse contingent workforce. Some lawyers have already warned of thelitigation explosion we can expect when the various parties bringing theirworkplace disputes to the legal arena — which brings us back to where we started- the Microsoft controversy.


    Since the Microsoft case raised legal risks of hiring temporary workers intolegal concern for employers, many business leaders have voiced the fear ofbecoming “the next Microsoft” and paid tax and employee benefitslawyers for advice on how to avoid such a scenario. The Guidance shifts thefocus tolabor and employment lawyers. This time they have a long record of ADAlitigation and a larger pool of potential claimants. They may be very busy.


Conclusion: The Best Antidote is Education
    I am not a practicing lawyer, and I don’t own a temporary staffing agency ora business that hires temporary workers. However, I do know that balancing thegoals of minimizing risk and avoiding costly litigation while complying with thelaw and meeting the rights of workers with disabilities is unquestionably adelicate balancing act. This delicate balance requires effective education andtraining — the best antidote for all parties to reduce legal risks and complywith the ever-changing law.

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Abbreviated Performance Appraisal

Sample performance agreement:


Date:
To:
From:


Within the period, ____ to ____, thefollowing will be accomplished:


I. Key Result Area:_______________________

Objectives Date
1. __________ __________
2. __________ __________
3. __________ __________

II. Key Result Area:_______________________

Objectives Date
1. __________ __________
2. __________ __________
3. __________ __________

III. Key Result Area:_______________________

Objectives Date
1. __________ __________
2. __________ __________
3. __________ __________

SOURCE:Keepingthe People Who Keep You in Business, Copyright © 2000 American ManagementAssociation International, http://www.amacombooks.org 


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Transitioning from the Appraisal Model

Like a mounting number of executives reexamining the role ofperformance appraisal, HR professionals might like to propose an alternativestrategy for their organizations that fulfills the same purposes asappraisal-without its negative effect on employee morale and motivation. Here isa “cheat sheet” to help you frame your arguments and design aneffective initiative.

Function

What todo Instead
Transitioning from Appraisal

  • Use a broad-based team to design alternatives based on healthy assumptions.

  • Separate the functions (pay, feedback, development, etc.); clarify the aim and design to accomplish that one specific purpose.

  • Educate everyone in the organization about the need for and direction of intended change.
Improving Organizational Performance

  • Foster a compelling shared sense of purpose and direction for the future.

  • Create a work climate that trusts and respects people as responsible adults.

  • Train everyone to understand and apply system and process improvement methods.
Coaching Employees

  • Encourage everyone to take responsibility for getting coaching assistance that will best serve their individual needs and the particular situation.

  • Provide employees and supervisors with training and elective tools that facilitate alignment, improvement, goal setting, and development.

  • Use appraisal format as a coaching tool only if it is the most appropriate counseling tool for the particular employee and situation.
Feedback

  • Enlighten everyone on the value of feedback, information, and communication in improving the performance of individuals and the organization.

  • Train everyone in the organization to be effective receivers of feedback.

  • Foster a work culture where feedback is integrated into the day-to-day work.

  • Make available to all supervisors and employees elective feedback tools and formats.
Compensation

  • Educate everyone on the realities of human motivation and the intended and unintended effects associated with compensation systems.

  • Adopt profit- or gain-sharing practices that benefit everyone when the overall organization is successful.

  • Foster pay practices that allow increases based on market adjustment, longevity, and maturity progressions, attainment of specific skills, reclassification, and cost of living.

  • Consider systems that can provide special increases or lump sums for those very rare individuals who truly stand out as exceptional performers.

  • Create a compensation system that is easily understood and clearly distinguishes market, cost of living, merit, and longevity.
Promotions/Career Advancement

  • Create open promotion and career advancement systems that clearly articulate both the objective and subjective criteria.

  • Conduct just-in-time reference checks and use state-of-the-art interview techniques to fairly, accurately assess candidates’ potential for positions sought.

  • Use panels of people to screen promotion applicants and to evaluate eligibility for advancement.
Development

  • Encourage and train people to be responsible for their own development and professional growth.

  • Provide access to professional development assessment and counseling tools, career counseling, and funding for training and education.

  • Mandate career planning and development only where there is a critical need.
Legal Documentation/
Helping Poor Performers

  • Educate all supervisors on the origins of poor performance, the importance of good fit, and ways to work with people in need of special help.

  • Conduct appraisal only where legally required or prudently necessary (e.g., employees ending probationary status).

  • Train supervisors on the array of ways to document unacceptable performance.

  • Establish formal counseling and corrective action systems for poor performers.

Source: Tom Coens and Mary Jenkins, Abolishing Performance Appraisals: Why They Backfire And What to do Instead (Berrett-Koehler, December 2000)

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Managing Performance the Merrill Lynch Way

For the past two years, New York-based Merrill Lynch & Co., Inc., hasbeen making the transition from a traditional performance-appraisal system toone based on the principles of performance management.


    “The whole emphasis has shifted from one of justifying a rating to oneof improving performance,” says Linda Murphy, the company’s director ofglobal performance management. “We’re looking at how we can help theemployee improve his or her performance. And because of that, there’s much moreconcentration on the coaching, the feedback, and the conversations that occurbetween the manager and the employee. Coincidentally, one of the pieces is yourrating, perhaps, but the significance of the conversation really is how do wework together to improve performance?”


    The Merrill Lynch approach incorporates elements of 360-degree feedback.Employees have an opportunity to solicit feedback from their peers and theirclients, but the key to the system is still the relationship between employeesand their managers. At the beginning of the year, employees and managers settheir objectives. Mid-year and year-end reviews follow.


    At the mid-year review, the manager and employee sit down to assess theobjectives set at the beginning of the year. They look at the employee’sprogress with an eye toward making any changes necessary to ensure the ultimatesuccess of the plan. They also update whatever kind of personal development planthe employee may have in place. The year-end review integrates cross-levelfeedback, assesses the employee’s progress against business objectives, andidentifies the areas in which the employee needs to show improvement.


    These two specified reviews are just the minimum requirements. Throughout theyear, managers are encouraged to provide their employees with ongoing feedbackabout their performance.


    Murphy is particularly enthusiastic about the company’s recent move from afive-point performance-rating scale to one based on a simple three-point spread.This change, she believes, makes it more acceptable for an employee to be ratedan average performer. And this makes it easier for managers to distinguish thepeople who genuinely are top performers. It also makes theyear-end review less a ratings game and more a conversation about what theemployee has accomplished and how he or she has achieved those results.


    “The conversation with the employee doesn’t have to be, ‘Why aren’t I a5-minus instead of a 4-plus,’ or whatever,” Murphy says. “It allowsthe manager to say to the employee, ‘The middle category is an acceptable levelof performance. Most of us are in that category. Now, let’s talk about how,relative to your peers, we can move you up in the rankings.’ “


    For its managers, Merrill Lynch provides extensive training on how to conductreviews, with pointers on how to handle employees at each performance level, aswell as guidelines for how meaningful objectives can be formulated. The companyalso hosts an extensive HR Web site that allows managers to access modules thatdescribe every aspect of performance management.


    “Our expectation is that this is a critical element that will help us bemore competitive in the war for talent,” says Murphy. “People areexpecting us to be able to say, ‘This is what’s expected of you, this is howwe’re going to help you in your personal development, and this is how you’ll bejudged relative to compensation.’ Everything is telling us that there’s anexpectation among new employees that we’ll move in this direction. And it’s thesame thing for retaining employees.”

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Leveling the IT Playing Field

Traditionally, IT has been a man’s world.


Companies that sought to hire women in IT, whether for cultural fit, gender balance, or bias-lawsuit avoidance, have had a hard time finding women among the ranks of information-technology professionals.


Experts list IT careers among the fastest-growingprofessions through 2006; however, employers are scrambling to find talentedIT workers. It’s even harder to find women IT professionals. According to the U.S. Department of Commerce, within the parameters of IT, only 9 percent of American engineers, 27 percent of computer scientists, and 29 percent of computer programmers are women.


All the live long day
The world of the IT professional can be a 24/7 environment—perhaps more appealing to career-at-all-costs men than women. “Men in IT positions tend to be young, very focused and can put their whole life on hold,” says Dr. Donna Shirley, assistant dean ofadvance program development at University of Oklahoma’s College of Engineering. It’s harder for women, Shirley says, because they are still the ones responsible for caring for children.

In Shirley’s case, motherhood and IT did mesh.


Shirley worked for Pasadena-based Jet Propulsion Laboratory as a manager of the Mars Exploration Program and the original leader of the team that built the Sojourner Rover. She stayed home for six weeks after giving birth to her child, and returned to her career after finding excellent company-sponsored child care for her baby. “Companies need woman-friendly policies,” says Shirley, who retired from JPL in 1998, after 30 years of service.


Because IT requires professionals to work long hours, jump on new technology, and cope with constant change, it is “the most difficult profession to balance with other commitments and interests,” Shirley says.


“At Microsoft the average age is 31. Software and dot.com companiesprimarily employ young men,” she said. Such companies have young-man attitudes, don’t know how to manage people and “don’t hire others who understand people,” Shirley says. “I think it is rather self-fulfilling that they will continue to hire guys. Attention is going to have to be paid to hiring women.”


If companies want to put women in their IT ranks, the jobs will have to be reconfigured for work/life balance. “There are hot jobs, and if those jobs can include ways to allow females to have what they want, like family and relationships within the context of the job, then women are going to go for them,” Shirley says.


University connections and other successes
Companies that have been successful in hiring women for technologypositions have discovered a number of effective strategies as the demand for skilledprofessionals increases daily.


Shirley says that companies needing qualified entry-level IT personnel shouldcheck with local universities. If the need is for management personnel, Women inTechnology International and the Association of Computing Machinery, aprofessional society for computer scientists, are also good resources.


“Companies can recruit for open IT positions among people with industrial engineering backgrounds. These professionals design systems to be people friendly,” Shirley says.”Women are more attracted to system-level things, particularly if there arepeople involved. Women tend to focus on social systems.”


It also helps companies to know which schools are nurturing the interest of women in engineering. At the University of Oklahoma, freshman women who signed up for engineering also got seminars that previewed the college engineering department and what they can expect out of their coursework. The Society of Women Engineers is an active support group for women in engineering at the school.


And the young women can see themselves reflected in the engineering faculty at the university. “We recruit women faculty members all the time,” Shirley says. “We have two females in our computer science department; 52 percent of industrial engineering studentsare female.” Four of the 10 faculty members in the engineering department are women, Shirley says.


Mentoring and role models
While schools nurture young professionals, companies also can play a role.”Companies need to do outreach. Women must be sought out and placed inboth tactical and…strategic senior roles providing valuablepeers/mentors for others in the organization,” says Donna Morris, directorof human resources of JetForm, an Ottawa, Ontario, Canada software and servicecompany. Policies and programs that focus on providing balance, or anopportunity for more flexible options, can increase a company’s chance of drawing talented women in IT, Morris says.


“Without focused HR programs and policies, it is most typically the casethat many of the women are on their own, with few female peers, which can pose aproblem,” Morris says. “The workplace is fast and dynamic, and the ITenvironment can become a lonely battleground for a woman who might be responsible for child care or elder care,” Morris says.


Some companies, like Nimble Technology, a Seattle, Washington software company, just seem to have the right set of circumstances working to draw women IT candidates. “Two of our founders are associated with the University of Washington. We’re in the same town with Microsoft and we seem to have no problem attracting females to our company,” says Shelley Godwin, recruiting manager. “Our CEO is a female, and our chief architect is a female. We’ve made sureour name is known in this community.”


To find qualified women, Godwin says the recruiting team belongs toSeattleJobs.org, which does Internet research and job sourcing. “We don’tuse a lot of outside headhunters but we have one or two we trust,” Godwinsays. “The majority of people we hire we find from referrals. We receiveleads through current employees, board members, and venture capital firms. Wefeel like great people know great people and would like to work with greatpeople.”


Meanwhile, Computer Associates International, Inc. in Islandia, New York has women on the recruiting team, “so that women can relate to women,” says Deborah Coughlin, senior vice president . “Women need role models.


“One of our most successful tools is our internal referral program. Our employees offer us resumes of people they know. We offer our employees a bonus of up to $10,000 if we hire that person.”The company also has its eye on IT’s future. “We go out to the targeted high schools with large female populations and we give them a glimpse [of the IT world] and hopefully motivate them into the industry,” Coughlin says.