I can recall several serious incidents in my time with clients where employee dismissals involved verbal and physical threats of violence. While in most cases the threats did not materialize, in some, I have no doubt that preventive steps taken beforehand made the difference. Sadly, in some cases, violence resulted when no threats were made. This brings home the main point that safety is an issue every time the loss of a job is at stake.

First, a well-drafted and communicated Violence in the Workplace policy will help to establish healthy boundaries for what should not be tolerated in the workplace. Over the years, I have learned through employee interviews (conducted for various reasons) that violent behaviors are tolerated because employees simply don’t speak up out of fear for their job or because they are unsure of what they should tolerate as part of the job.

Second, an employer can use an employee assistance program to assist with an employee exit.  Whether the employee behaves in a frightening manner or is a time bomb waiting to be set off, do not hesitate to bring in the professionals to help lessen the manager’s burden of telling someone they no longer have a job.  Depending on the situation, the nature of the employee assistance may be career counseling, or counseling for areas of personal need. A good employee assistance program will sort that out and offers the added advantage of being off site and away from the source of the anxiety.

Finally, an emergency plan and back up is critical if there is even the slightest hint of violence:  A security or police officer apprised of the situation, or at the least a person nearby who is aware of what is taking place and can call for assistance if needed.

For more information, check out an article this week in the The Wall Street Street Journal. Here are a few tips from WSJ for safeguarding the workplace:

• Establish and strictly enforce a zero-tolerance policy for violent behavior or threats, including seemingly empty threats.
• Create an emergency-action plan if you are an employer covered by OSHA. An employer with 10 or fewer employees may communicate the plan orally to employees, while larger firms must put it in writing.
• Keep a written record of any disciplinary action and have the employee sign it.
• Devise a termination strategy that doesn’t discriminate; follow the same protocol when firing both executives and laborers.
• Conduct dismissals in a private setting and enlist a senior company leader to serve as a witness.
• Upon terminating an employee, immediately disable his or her access to the company’s computer systems and confiscate keys.
• If the demeanor or behavior of a person being dismissed is questionable, consider calling law enforcement for support.

A couple of important recent court cases

Compliance and Training Key to Victory in Overtime Lawsuits

I have been talking with clients about the increased attention wage and hour is giving to employer time sheets and record of time worked. Here is a case that demonstrates the importance of taking the time to get this right and making sure your policies reflect your intent to monitor overtime.

Fitness for Duty Examination

Here is a nice summary and clear example of how the ADA fitness examination standards can be applied in the workplace.  In this case, a police officer displayed erratic behaviors that created concerns regarding his ability to perform his job, and so he was asked to undergo a fitness for duty examination. He refused, he was fired, and then he sued the City citing ADA prohibitions against unlawful fitness for duty examinations. The Ninth Circuit Court of Appeals ruled in favor of the employer because the request was job-related and consistent with business necessity. 

I recommend you read the entire blog post, but leave you with this excerpt:

In Brownfield, the Ninth Circuit adopted a “reasonable person” standard: the employer can order the examination when faced with “significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job.”

Hey, stop talking about me on Face Book!

You might want to read an interesting blog post today involving another “Twittercide” This time having to do with the firing of a well known reporter at CNN. Read the post here Warren and Hays

If you have not yet adopted a social media use policy for your workplace, you may want to begin with the briefest of language to add to an employee handbook.  For example:

Social media use including blogging, and visits to social networking sites, is not permitted during business hours or on employer owned computers except where it has been specifically approved for business use. Also, employees should be cautious when using social media during non-work hours to avoid the appearance of speaking on behalf of [the employer] . Whether on or off duty, professional conduct is expected whenever an employee represents his or herself as an employee of this organization.  Employees are advised to keep in mind that all conduct that negatively impacts the workplace will be addressed through disciplinary procedures.  Unprofessional conduct on social media sites that serves to disrupt business or cause conflicts in the workplace will be addressed the same as any other personal conduct that interferes with effective performance of job duties.

In my recent newsletter I reported that the Civil Rights Division of the Department of Justice issued a report to a House Subcommittee on December 3, 2009 outlining a number of efforts to renew enforcement efforts in the area of Title VII and Disability Rights. Here are two excerpts from that report that have particular relevance to public sector.  I will continue to follow the reports and activities from this department and keep you informed.

Title VII

Restoring vigorous enforcement of Title VII, including pattern and practice cases, is one of our highest priorities. Since January 20th, we have filed three Title VII pattern or practice suits, obtained settlements in five pattern or practice cases that provided significant prospective and remedial relief, and opened ten full pattern or practice investigations of State and local governmental employers with respect to employment opportunities for African Americans, Latinos and women. Also, in July, we obtained a highly significant victory in U.S. v. City of New York, NY, when the district court granted summary judgment for the United States and plaintiffs-intervenors on the issue of liability. In the City of New York case, we challenged the city’s use of two written examinations for entry-level firefighters as having unlawful disparate impact on African Americans and Latinos. In the relief phase, we are seeking, among other things, priority hiring and monetary relief for nearly 300 African-American and Hispanic victims of the challenged examinations.

 Disability Rights

 The Division’s Disability Rights Section has been conducting a wide range of enforcement activities, including its Project Civic Access to increase compliance by State and local governments with Title II of the Americans with Disabilities Act of 1990 (ADA). The Project sends investigators, architects and attorneys to conduct on-site reviews of State and local government facilities. These reviews have resulted in agreements reached with the State and local government entities to address compliance issues by rectifying access issues at a wide range of facilities, including administrative buildings, courthouses, police and fire stations and jails, transportation facilities, parks and recreation facilities, libraries, museums, polling places, and emergency and domestic violence shelters.

 From, a sub-committee report by the Department of Justice “THE CIVIL RIGHTS DIVISION OF THE DEPARTMENT OF JUSTICE”PRESENTED DECEMBER 3, 2009  

 Timken Company Sued by EEOC for Disability and Sex Discrimination

On another but related front, the EEOC has recently decided to file a lawsuit against Timken, a global manufacturer, for discrimination against a woman with a disabled child. This is a reminder to all that complaints may be filed because of a person’s association with a disabled person.

In the press release issued by the EEOC, Tina Burnside, supervisory trial attorney in the EEOC’s Charlotte District Office stated:

Under the ADA and Title VII, employers cannot make employment decisions based on stereo­typical assumptions that a female employee with a disabled child would have to miss  work or could not perform the job because the employee provides care for a  disabled person.

The take home lesson here is to the same as always, develop job descriptions and clear hiring standards, be consistent and objective in your selection practices. Steer clear of questions that invite disclosure of information that is irrelevant to performance of the job. If a candidate offers information without prompting, do not tarry, but re-focus the discussion on job-related matters.

POLICY ON RELATIONSHIPS IN THE WORKPLACE

Organizations vary in  the way they set policy around dating relationships dependent upon the size of the organization and the design of the work. However, for most employers, especially smaller size organizations, this is an important issue that is frequently overlooked in personnel policies. One potential problem is the relationship gone bad scenario which results in lingering resentments which lead to more insidious workplace problems, not least of which is the potential for harassment complaints. Another serious issue is the fall-out from two people who marry and continue working together which is not only bad for department morale but sets the stage for a whole host of conflicts within reporting structures.

Recently, I helped a client arrive at a policy that was minimal in nature, but sufficient to address the most serious aspects of this issue. Here is what we came up with:

Romantic relationships between employees in the same work unit, while not prohibited, may not interfere with the department business, and employees will be disciplined for any disruption to the workplace caused as a result of the relationship. Furthermore, if two employees enter into marriage, subsequent to being employed in the same work unit, one of the persons affected must give up his or her position no later than 6 months from the date of their announced engagement.  Within 30 days after the employees announce their intentions to marry, both employees must inform (in writing) the manager to whom the unit in which he or she is employed reports that they intend to marry and must state which of the affected persons will relinquish his or her position. Should the written notification fail to specify which of the affected persons will give up his or her position, it will be assumed that the party with the least seniority (length of continuous service from the last date of hire) will relinquish his or her position.  The person giving up his or her position may be re-employed in another department, subject to the needs of organization. 

 Any thoughts on this from your neck of the woods?

I know you are busy, which is why I am going to start you off this year with a quick sampling of some recent stories of interest in the HR world.  If you want to read more, just click and go to the source!

Is Text Messaging Private in the Workplace?

Does a police officer have a reasonable expectation of privacy when he text messages using a department issued pager? The United States Supreme Court has decided to take the case. Read more on this…….WorldofWork Blog

Yammer, you might want to try it.

Yammer? What’s that? Just when you thought you had a grip on social media, a new outlet bursts upon the scene. This one is anticipated by many to be the next big one, and it could be part of your workplace strategies. Instead of the Twitter question, “What’s happening?” Yammer asks the question, “What are you working on?”  Instead of being open to the universe, it is designed for employees in a single organization. Imagine having a dashboard of sorts on your computer screen, a stream of “yaps” that tell you what others in the organization are working on throughout the day.  Think about the possibilities. It has the potential to be a great communication and collaboration tool.  Instant messaging that is transparent to all and keeps people informed about who is working on what.  And it is free. Check it out here

http://www.yammer.com

More on Social Media

Jon Hyman, at the Ohio Employment Law Blog, gets it right when he sums up the top ten law stories of 2009 with social media in first place. He provides a series of law articles that discuss the risks associated with social media and what you might need to include in your personnel policies.

Read more at the The Ohio Employment Law Blog

Employees are on the move.

Right Management surveyed more than 900 workers in North America and asked: Do you plan to pursue new job opportunities as the economy improves in 2010?

A whopping 60% said they intend to leave, and another 21% said, maybe, they are networking to consider other opportunities.

Have employees had enough? What does this portend? Read more here

Salary Budgets, Still Unsettled.

In the words of Ann Bares, a fellow compensation consultant, we are on our way to a new normalcy.

She reports on a recent study by Towers, Perrin that finds that most salary budgets will be unfrozen in the coming year, but that companies are planning to spend with greater care, using more differentiation in distributing the limited salary dollars they will have available. You can read more at her blog compforce

When does lunch constitute work time?

It never hurts to brush up on the FLSA overtime rules, especially today when the filings with Wage Hour are at an all time high. The Overtime Advisor reminds us of the DOL rules governing employees who work through lunch.  Read More Here

Another FLSA story that brings home the point that it is harder to exempt employees than you think!

According to a story on MSNBC, a United States District Court for the Northern District of Georgia says first-level managers for Bell South are not exempt because they are on the lowest rung of the managerial ladder and have only minimal supervision.  Read More Here

If you need an employee to recertify FMLA Leave, be sure to follow the rules.

Finally, another excellent blog post by Jon Hyman that is a more technical summary of do’s and don’ts regarding recertifying FMLA leave.  Read More Here

Next time I will write about a city in Ohio that made bold changes to its health care programs which brought about significant savings by engaging its employees.  And yes, they have unions!

HDSA Golf Outing

Last Saturday, November 21^st, the Genetic Information Non-Discrimination Act (GINA) became effective. Careful and thoughtful attention to how you consider this new law in your workplace can make a huge difference in lives of your employees and can also make you less vulnerable to EEOC complaints and lawsuits. Under the law, employers may not ask for the results of genetic tests or discriminate in hiring, firing and promotion based on the results of genetic tests. It also prohibits discrimination by individual and group health insurance providers based on genetic test results. If the intent of the law is realized, more individuals will be tested and treated for genetic diseases, and this will likely spur complaints of discrimination in the workplace. So it is important to be ready and willing to respond to the inevitable situation that will arise at your workplace.

Wellness programs are a strong player in your response strategy. Encourage employees to be well and be prepared to support them with employee assistance programs that provide counseling in the event they learn they have a genetic disease. Rely on professionals connected to you through your ancillary health programs. If your provider does not offer support in this area, let them know you are going to shop around.

Be aware that the difference between ADA and GINA is that in the latter, a person may learn they have the gene for a genetic disease, but will not know how long it will be before the symptoms begin to manifest.  In addition, it might be useful as an employer to know that ethical protocols exist within the medical field that require counseling about available channels of support if in fact the genetic test comes back positive. If you learn that an employee has received bad news, you can encourage them to seek support through the channels offered them during the genetic testing process.

The hard part, of course, arises when you begin to notice that job performance has been compromised. My advice is to keep channels of communication open with the employee so you can learn as much as possible about what to expect. While you do not want to know the details of medical or genetic tests, you want them to keep you informed about any limitations that may arise, such as driving, or even processing information in the same way that they once did. You can encourage an advocate to meet with you (for instance, a social worker from a group associated with the particular disease) for the purpose of charting out a course for the employee. For instance, if you can map out ahead of time, the prospects of keeping the employee on in a less demanding job, at a lower pay rate, or what the employee can expect at the point at which the job can no longer be performed, you have offered the employee a degree of control and ability to predict the future. Keep in mind that many employees will eventually be transitioned onto Social Security Disability, but it takes time and you are doing a huge service by allowing them time to transition. Long term disability insurance may also come into play.

If the worst happens, and the employee files a complaint, this may be due to insensitivity on the part of the employer, or it may be that the employee has not yet come to grips with their medical condition. Keep in mind that part of the process, as in any loss, is denial, and for some it is simply harder than for others. So it may not be the fault of the employer, and if you have exercised a reasonable effort to not discriminate, try to remember the investigation process will be much less terrifying than what the employee is going through.

I know something about this as I come from a family with the genetically inherited Huntington’s Disease and recently went through the dreaded testing process. Although I came out negative, this was a life defining experience. This is a rare and terrifying disease (but they all are).  Charles Sabine, the former NBC Correspondent, who while covering war, was abducted by terrorists, tortured, and had a gun held to his head for hours, said that his terrorist experience could not hold a candle to the terror of learning his genetic fate. His story was told this past Monday on NPR [here].

Last, but not least, there are of course….new posters!  If you have not yet secured yours, you might want to check out this site.

EEOC Poster Request Form

WAL-MART – Settles Wage Hour Claims

Wal-Mart continues to deny any wrong doing with respect to a class action suit brought by employees in the State of Washington alleging they were denied meal times and rest breaks and were forced to work off the clock.  Despite their insistence of innocence, management decided to pay out $35 million rather than go to court. [Huffington Post provides a nice summary.]   This does not help their image, but anyone familiar with wage hour regulations might understand how they got themselves into a pickle.

Workplace policies that state work should not be performed during the meal break, or during off work hours often do not reflect what is actually going on as vigilant employers will report. I recall my early days in the workplace when a husband of an office assistant called the wage hour and complained that his wife was working overtime without getting paid. The wage hour investigators arrived and audited the company from top to bottom. Employees did not know, in most cases, why certain questions were being asked, but since time records did not accurately reflect what the employees were telling the investigators, the end result was a settlement that was largely due to poor enforcement of policy.

Here is a word of clarification and a word of caution regarding this case: first, the State of Washington requires employees be provided a meal and rest break. This is not the case in many states (including Pennsylvania) and so this aspect of the case relates to Washington labor law.  At the federal level, the Fair Labor Standards Act requires only that a break be counted as time worked if it is interrupted. A safe policy is a minimum of 30 uninterrupted minutes for meals.  In addition, rest periods of 20 minutes or less must generally be counted as time worked.

So, we will never know the particulars of the Wal-Mart case since it was settled out of court. But it is very likely that the problem for the company was in part the record of work time. Therefore, be advised that you should have a policy that states employees must leave their work area for meal periods and may not perform work before or after work unless authorized for overtime.  However, if you have a policy but look the other way when it continues to occur, you are permitting the work and are possibly treading down the same path as Wal-Mart.

“Please list any and all, current personal or business web sites, web pages or memberships on any Internet-based chat rooms, social clubs or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc…”

Are you prepared to answer this question on a job application? If you are applying for work at the City of Bozeman, Montana, you will have to be, and some unhappy folks decided to take this practice public with the local news station. Here is a related article on ABCnews.com.

Since the airing of the story last week on WBZK TV, the city commissioners have been bombarded with angry calls and letters from people who find the practice invasive and believe it interferes with the right to privacy. City officials have defended the practice stating that working in public employment requires greater scrutiny and they only request, not require applicants to provide password information.

Question: If we create a public space which can be viewed by anyone, do we then have the right to say that it is an invasion of privacy for an employer to ask what public spaces we inhabit on the Web?

If we think back to Personnel 101 and interviewing do’s and don’ts, we will remember that questions about a person’s membership in clubs or associations may later be construed as a means to select out candidates deemed unsuitable, based on non-job related factors. Human resource professionals advocate selection criteria that focus on the requirements of the job.

However, the employer has a legitimate claim to personal information too. For example, does an applicant have a bad driving record (where the job involves use of a car), or convey openly hostile views toward a race or group of people? At what point does an employer become liable for NOT exercising due diligence when screening a job candidate?

So, yes, personal information is often very relevant. But here is the caveat and where the City of Bozeman is likely to run into trouble. It may be o.k. to investigate applicants, including the public spaces they create on the web, but the time to do it is after the an offer has been made, not before.

In addition, it appears that the City asked for passwords to enter sites that were not public, and this could be problematic, although careful construction of a policy and practice for certain professions, such as police officers, may make this legal (I am not an attorney and advise you to ask one if you want to do this.)

For an excellent legal perspective, head on over to the Delaware Employment Blog and learn more about how employers use social networking information in the candidate screening process.