The typical traditional way the boss has dealt with a "problem employee" has gone something like this:
The boss, after several sleepless nights, resolves, "I'm going to call her [the problem employee] in and 'write her up.' " So the boss confronts the employee with, "I'm going to write you up!" And the confrontation deteriorates from there.
There's a better way. It's called a Performance Improvement Meeting, which involves a meeting and conversation with the employee that focuses on improvement, the future, and how to do better.
Five steps for a improving employee performance:
1. Establish the gap between desired performance and the areas of the employee's poor performance. Have written standards for the job available to you and to the employee. Write down the facts so you have documented evidence of the employee's pattern of poor performance.
2. Explore the reasons for an employee's poor performance. Don't jump to conclusions -- keep an open mind. Ask open-ended questions, not loaded ones. (Open-ended questions are questions that a person can't answer with a simple "yes" or "no." Be patient to listen for answers. Be direct. Discuss the problem behavior.
You might ask questions like these to prompt the employee to reveal helpful information: What's causing you to arrive at work so late, so often? Your goal in this step is to determine the root cause of the problem behavior.
If you find an employee's problem is of a temporary personal or domestic nature, you might consider adjusting the standards temporarily. But if you make an exception, tell your other employees.
Example: An otherwise reliable employee has recently become repeatedly tardy to work. Upon questioning her, you learn of her temporary difficulties with child-care arrangements. You decide to allow her a grace period to give her time to work out the problem. You inform others in her work area she'll be late to work occasionally, but only for another few weeks.
3. Move to the solution. With the employee, arrive at and agree on a change in behavior or an improvement plan. Get a commitment from the employee.
Agree on a target for change and fix a review date to check progress. Explain the consequences of failure to change or improve behavior.
Be absolutely clear about the consequences if the employee fails to comply with the commitment to change or improve. An example of a statement you might make: "I'm pleased you have agreed to report to work on time, starting tomorrow morning. I want you to clearly know that if your tardiness continues or resumes we will immediately reduce your hourly pay rate by $1 per hour."
Stick to the facts -- control your emotions and don't allow arguments over details.
4. Document. Record in writing exactly what was said in the meeting, and by whom it was said. Record the solution, the employee's commitment and the consequences told the employee.
5. Follow through. Adhere to and deliver on the commitments you and your company make in the solution step. Also, require the employee to follow through on the commitments he or she makes, and follow through on the consequences if the employee fails to follow through on the commitments.
DOL Extends Comment Period for Proposed FMLA Regulations. On February 15, 2012, the Department of Labor (DOL) published proposed regulations to the Family and Medical Leave Act (FMLA) in three specific areas: Military Family Leave, Flight Crew FMLA Eligibility, and the manner in which employers calculate increments of FMLA leave. Public comments originally were due by April 16, 2012. However, the DOL announced that it is extending the due date for comments to April 30, 2012.
OSHA GHS Final Rule. Effective May 25, 2012, the Occupational Safety and Health Administration (OSHA) announced that the final rule for Globally Harmonized System (GHS) of Classification and Labeling of Chemicals will become law. The new GHS rule will be added to OSHA’s existing hazard communication standard, or worker right-to-know law. The GHS is a logical and comprehensive approach to defining health, physical and environmental hazards of chemicals, creating classification processes that use available data on chemicals for comparison with the defined hazard criteria, and communicating hazard information.
Blocked NLRA Poster Requirement Update. A District of Columbia (D.C.) federal court has blocked the actions of the National Labor Relations Board (NLRB), which last year imposed a new requirement that employers post a notice to employees informing them of their rights under the National Labor Relations Act (NLRA). This new NLRB poster requirement was supposed to take effect November 14, 2011, but that deadline was later delayed until January 31, 2012, and then again delayed until April 30, 2012. The most recent delay resulted from the D.C. court’s request to postpone the effective date pending a legal challenge to the new requirement. The court concluded that the NLRB could not make an employer’s failure to post an unfair labor practice, but rather the NLRB would have to show that the failure to post actually interfered with employee NLRA rights. However, the NLRB encourages employers to have the poster displayed as a best practice regardless of what the finalized decision will be (expected on or before September 2012). To obtain further information, contact a HR Professional.
The political ads are out and the 2012 political season is beginning to heat up. So, does your company currently have a policy or practice that permits or prohibits political expression and related activities in the workplace? Due to recent “occupy” movements, legislative banter and election promotions, political activities can be effectively addressed with the implementation of well-prepared policies.
First of all, employers can limit political activity in the workplace. The First Amendment does not entitle individuals (employees included) to express their political views whenever and wherever they wish. Those in private-sector companies have no constitutional right to free speech, and can be terminated for expressing political beliefs as long as their dismissal does not violate some other federal or state law.
Political expression can encompass various (verbal or non-verbal) activities or inferences exchanged to support an idea, person, or thing. Often, there are pros and cons that come with political expressions presented in the workplace that can be treated as permitted or prohibited activities, which may or may not disrupt the workflow as well. Also, federal and state regulations further provide guidance for employers to consider when developing a policy.
The National Labor Relations Act (NLRA) describes federal regulations when an activity may be considered “protected” under law. Three rules apply to determine whether an activity (e.g. political) is protected under the NLRA:
- Political expression and activity occurs during non-working time and off the employer’s premises.
- On-duty political support related to a specifically identified employment concern (e.g. Health Care Reform) is subject to restrictions imposed by lawful work rules.
- Leaving or stopping work to engage in political support may be subject to restrictions imposed by lawful work rules. An employer cannot discipline or discharge employees who leave work without permission if their walkout is for the purpose of obtaining some improvement in their own working conditions from their employer who has control.
The above-noted activities can be viewed to be political in nature and permitted for employees to engage in since the NLRA states employees have the right to engage in concerted activity. However, union-related logos represented on campaign materials sometimes may or may not be prohibited in regards to business practices (such as safety and personal protective equipment).
In addition, state laws also make it illegal to discriminate on the basis of an employee’s political activity or affiliation. Employers have the right and responsibility to ensure that work environments are safe, and free of hostility aimed at employees because of protected classification such as race or gender. For example, in 2012 several political issues covered in the current media such as gay marriage and immigration reform, impact protected worker classes of race, religion and sex. Thus, it is vital to develop political expression policies to help manage the workplace.
Employer policies and best practices for political expression should:
- Prohibit political statements while working and interacting with customers, visitors, etc.
- Enforce dress codes on employees regarding pro-candidate items attire (e.g. buttons, pins, ribbons, clothing), that affect business.
- Restrict access to social media and internet programs (email).
- Prohibit political fundraising or informational meetings within the workplace, as part of "no solicitation/no distribution" rules.
- Discipline employees for leaving work to attend a rally or other political event (as opposed to allowing for voting time leave).
- Train supervisors and managers on the company’s policy and what steps to take if they hear or observe inappropriate workplace political debates that become intense.
Although there are some companies that by the very nature of their businesses are politically involved in campaigns and voter registration drives, many employers prefer to keep politics away from business relations and practices. Many courts uphold restrictions but only on conduct that is unlawful or demonstrably harmful to the employer’s legitimate business interests. Especially during an election year, it is in every employer’s interest to develop and enforce a political expression policy to ensure workplace productivity to be its finest and anti-
Mercer's recent What's Working survey, conducted over two quarters, found that 55 of 100 employees in the U.S. are unhappy in their jobs. Given the chance in today's poor employment economy they would want to quit their present employer and jump to another job.
Mercer, the global consulting and investment services firm, surveyed 30,000 employers in 17 countries (including 2,400 employees in the United States). On the issue of employees' satisfaction in their present employment, the key findings were:
32 of 100 employees in the U.S. are seriously considering leaving their current jobs at the present time. That compares to only 23 of 100 feeling the same way in 2005.
21 of 100 U.S. employees, though not looking to leave their jobs right now, view their employers unfavorably.
With such a high percentage of employees thinking about and wanting to switch jobs, it's a good time for employers to consider "How do I hold on to our best employees and keep them from jumping ship?"
Answering that question, Mel Kleiman recommends employers take a serious look atwhy the best employees leave. Kleiman, president of Humetrics.com and author of Hire Tough, Fire Easy, offers the following top 10 reasons your best hourly employees leave:
10. Scheduling Conflicts. The employee took the job "because the employer promised flexible hours. But it turned out the flexible hours meant having to work whenever and however long the manager wants the employee to work." Says Kleiman, "The employer's definition of flexible is 'you are flexible for our hours.'" He reminds employers, "People have other lives outside work. One of the terms I use is, 'It isn't always about people wanting work-life balance, it's people wanting a family-friendly work environment."
9. Lack of Recognition. "I'd almost make this number 1. The supervisor never gives the employees any positive feedback for fear they might ask for a raise. But, Napoleon said it best, 'I can get people to die for a ribbon but can't get them to die for money.' Gallup polls report better than over 65 percent of all American workers say they've received no recognition at work at all within the last year. There are three kinds of recognition in the world. Positive, negative, and none at all. What do we give our best employees? No recognition at all, or we give them all the junk jobs."
8. Given All the "Dirty Work." When it comes to job assignments, the manager gives the worst jobs to the best people "because they can be depended on to do it right and not complain. I repeat what I just said about lack of recognition. There's positive, negative, and none at all. What do we give our best employees? No recognition at all, or we give them all the junk jobs."
7. Lack of Respect. On this one, "the manager has the wires crossed, praising in private and criticizing in public. What I'm talking about is, we don't even recognize the value of all these people. When you empower people to do things, you respect them. Why not respect them and let them do the job? You get the employees you deserve. You have exactly the employees you hired working for you."
6. No Chance for Advancement. When the advancement opportunity arises, "the supervisor calls her circle of friends and hires from the outside rather than promoting from within," Kleiman explains.
"I think this says it all. Maybe even change that a bit. Are you helping people get what they want so they help you get what you want? And that is, if someone wants advancement, are you helping them get advancement? If you help people get what they want, they help you get what you want."
5. No Training. The manager "doesn't believe training is a good investment because the employee 'will leave in three months anyway.' My new philosophy is quit training employees," Kleiman says. "People join companies, they leave managers. If you have great managers your employees won't leave. It's better to train your managers. If you told a great manager you had no money to train employees, he'd find money to train his employees."
4. No Attention or Authority. "The supervisor never has any time to listen to his employees because he's so busy fighting fires and doing important things. Yet he doesn't give his employees the authority to solve problems themselves, either."
Adds Kleiman, "This is back to accountable. We never make the employees responsible. We give them responsibility, but we don't give them the authority to do something about it. An example: You give the employee the responsibility to make the customer happy. But you don't give them the authority to do anything."
3. Mind-numbing tasks. "The employee's work is boring and repetitive. The supervisor fails to find ways to make it more fun or more challenging for employees.
"The supervisor gives employees mind-numbing tasks without telling the people these tasks are important. There is no future in any job, there's only a future in the way you do the job. Maybe the job has mind-numbing tasks. But the most important mind-numbing tasks are the most important tasks and have to get done. Who's the most important person in the restaurant? The dishwasher. If you don't have any clean dishes you can't serve food."
Adds Kleiman, "There are five things people want out of their jobs: One, a great boss and good coworkers. Two, interesting work. Three, growth and opportunity. Four, work-life balance, a family-friendly environment. And five, recognition."
2. Failed to Hire Tough. "Here's what I mean. The employee was not a good fit for the position because the manager put out the 'Help Wanted' sign and chose the person she thought interviewed best," Kleiman explains. "The number one reason employees leave is they leave managers. 'A' players don't have to play on 'B' teams. Make sure you only bring the best people into your organization, and don't hire a body."
1. Substandard Coworkers. The good employee "isn't paid enough to put up with the hiring mistakes." The hiring mistakes are "the people who turn out to be lazy, indifferent, or undependable coworkers." Kleiman repeats: 'A' players don't have to play on 'B' teams. Make sure you only bring the best people into your organization, and don't hire a body."
Garnishing an employee's wages can be inconvenient, but there is little you can do about it.
When one of your employees fails to pay a debt or owes the government money, a court may issue an order to withhold income, which means your company takes money from the employee's paycheck and forwards it to the debtor. Courts typically order payroll garnishments on, among other debts, child support, unpaid taxes, and defaulted student loans.
When your company receives orders for payroll garnishments, federal and state laws kick in to protect the employee. For example, Title III of the federal Consumer Credit Protection Act prohibits your company from firing an employee whose wages are garnished for just one debt. The law applies to wages, salaries, commissions, bonuses, and income from a pension or retirement program, but does not ordinarily include tips.
Your company can, however, fire an employee whose wages are garnished several times, unless state law prohibits it. But if you choose that route, be sure your company is consistent in its practice. If one person is fired for multiple garnishments and another is not, it could result in a discrimination lawsuit.
Employers who willfully violate federal law face fines of as much as $1,000, a year in prison, or both.
Here is a basic look at how wage garnishment works:
- Garnishment is limited to an employee's disposable earnings, which is the amount left after deducting state, federal, and local income tax, Social Security tax, state Unemployment Insurance, and retirement deductions if required by law.
- Disposable earnings do not include voluntary deductions such as insurance premiums, union dues, charitable contributions, savings bonds, or retirement contributions.
- Regardless of how many garnishment orders your company receives for one employee, federal law limits the amount it can withhold in a workweek to either 25 percent of disposable earnings or whatever an employee earns that exceeds 30 times minimum wage, whichever is less.
There are exceptions, however. For example, your company:
- Cannot garnish wages if disposable earnings are less than the minimum wage.
- Can be required to withhold an additional five percent for support payments that are more than 12 weeks in arrears.
However, garnishment restrictions do not apply to certain bankruptcy court orders, or to debts due for federal or state taxes.
States may set lower limits than federal law, set rules on the entities that can garnish from paychecks and limit the reasons for a garnishment.
If your company receives a garnishment order that appears counter to federal or state law, contact TruPay or get other professional advice. It's your company's responsibility not to garnish too much, or too little, and to let the court know if your organization cannot legally comply with a garnishment order.
Successful garnishment depends on accurate interpretation of state and federal laws. Get professional help to comply in the states where your company operates.
A D.C. federal court has blocked the actions of the National Labor Relations Board (NLRB), which last year imposed a new requirement that employers post a notice to employees informing them of their rights under the National Labor Relations Act (NLRA). This new NLRB poster requirement was supposed to take effect as of November 14, 2011, but that deadline was later delayed until January 31, 2012, and then again delayed until April 30, 2012. The most recent delay resulted from the D.C. court’s request to postpone the effective date pending a legal challenge to the new requirement. The court concluded that the NLRB could not make an employer’s failure to post alone an unfair labor practice but rather the NLRB would have to show that the failure to post actually interfered with employee NLRA rights. However, the NLRB encourages employers to have the poster displayed as a best practice regardless of what the finalized decision will be (expected on or before September 2012).
Every employer wants its company portrayed with a positive image. How a business wants to portray itself through its workers also plays a key role in rapport, business relationships, values, and customer service. If explored too nonchalantly and communicated poorly to its employees, an employer could easily find itself up against unexpected discrimination claims.
Several labor laws contain employee protections that relate to professional image. For example, Title VII of the Civil Rights Act covers protected classes (e.g. age, gender, sex, religion, ethnicity, race, religion) in the workplace. While an employer can enforce specific dress code policies, some policies may inadvertently infringe on an employee’s protected rights (e.g. attire, jewelry, or body markings having a religious relevance). In general, professional image or dress code policies in the workplace should not be discriminatory in nature or intent.
Does it mean that a company may not impose different standards for different categories of employees? Not necessarily. A company may impose a different dress code standard for men and women based on generally acceptable social standards. In fact, this practice has been tested and supported in federal court. In the case of Knott v. Missouri Pac. Ry. Co., a male employee was suing for the right to wear an earring at work, as female employees were permitted to do so. The decision basically stated that as long as male and female employees are held to similar professional appearance standards, the company may impose differing gender-based guidelines in accordance with generally acceptable social appearance standards without engaging in gender-based discrimination. The court decision went on to state that “minor differences in personal appearance regulations that reflect customary modes of grooming do not constitute sex discrimination within the meaning of [federal law],” and dismissed the male employee’s lawsuit. With respect to tattoos, as long as both male and female employees are required to cover up tattoos while working, the company is in compliance with the applicable regulations.
The following are some guidelines employers may consider:
- Get familiar with relevant labor laws that also pertain to workplace safety requirements (e.g. hard-hat and steel-toe shoe requirements at a building construction site).
- Give employees an opportunity to change their appearance to be more in-line with the company’s workplace culture policies (e.g. allowing the employee to go home and return to work in a company’s prescribed uniform attire).
- Provide options to cover up or remove visible appearance factors as a temporary solution during working hours (e.g. requirement not to wear any visible body piercings during working hours).
- Survey customers about their perceptions of the company’s image represented by the workers.
- Adopt policies that specify which department of employees may or may not be impacted.
An employer’s objective is to ensure their business is portrayed appropriately by their staff to specific customers and audiences. However, the employer is responsible for making sure that the right professional image and dress code policies are in place and that the policies respect the employees’ protected rights in the workplace.
OSHA Summary Posting. The Occupational Safety and Health Administration (OSHA) requires certain employers to post the OSHA Form 300A in a conspicuous workplace location from February 1, 2012 through April 30, 2012. This form is a summary of the total number of job-related injuries and illnesses that occurred in 2011. Employers with ten or fewer employees during all of the last calendar year (2011) or businesses that are classified in a specific low-hazard industry are generally not required to post OSHA Form 300A. However, an employer subjected to this requirement must post OSHA Form 300A even if the employer had no reportable injuries/illnesses in the prior year. In addition to the posting requirement, the employer must provide a copy of the report to any employee with no fixed work site or no access to the posting location.
Record-Keeping Requirement Extensions to GINA. In a final rule published by the Equal Employment Opportunity Commission (EEOC) on February 3, 2012, the agency extended the record-keeping requirements imposed under Title VII and the Americans with Disabilities Act (ADA) to entities covered by Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). This rule takes effect April 3, 2012 and while it does not mandate that employers create employment records, it simply requires employers to retain the records they do create. First, any personnel or employment record made or kept by an employer must be preserved by the employer for a period of one year from the date created or the personnel action involved, whichever occurs later. Second, any records pertaining to a filed charge of discrimination or an action brought by the EEOC or the US Attorney General under GINA must be retained by the employer until the final disposition of the charge or action.
FMLA Leave Calculation and Employee Reinstatement. The U.S. Department of Labor (DOL) has proposed a rule change that affects how employers calculate leave time under the Family and Medical Leave Act (FMLA) and how employees are to be reinstated after FMLA leave. If the proposed rule is finalized, employers will be required to calculate FMLA leave using the shortest increments they use to track work time. The public comment period for the rule change is set to close on or before April 16, 2012.
FMLA Proposed Rule for Military Leave. The Department of Labor (DOL), Wage and Hour Division has proposed to revise certain regulations of the Family and Medical Leave Act (FMLA), primarily to implement recent statutory amendments to the Act. The Notice of Proposed Rulemaking (NPRM) set forth regulations to implement amendments to the military leave provisions of the FMLA made by the National Defense Authorization Act for Fiscal Year 2010. This extends the availability of FMLA leave to family of service members of the Regular Armed Forces for qualifying exigencies. Public comments must be received on or before April 16, 2012.
IRS Tax Filing Deadline. The Internal Revenue Service (IRS) tax return filing deadline is April 17, 2012 for 2011 tax forms.
NLRA Posting Requirement. As a reminder, the National Labor Relations Board (NLRB) has issued a Final Rule that requires employers to notify employees of their rights under the National Labor Relations Act (NLRA). Private-sector employers, including labor organizations, are required to post the NLRA employee rights notice where other workplace notices are typically posted on or before April 30, 2012.
For years, the U.S. Equal Employment Opportunity Commission (EEOC) and the US Supreme Court have strongly encouraged employers to establish harassment prevention training and have punished certain employers who fail to educate their employees. Several states (e.g. California, Connecticut, and Maine) require harassment education and make it unlawful for failure to train. All companies – big and small – must understand the definition of harassment, recognize the applicable mandatory training provisions, and ensure effective delivery of programs to protect their businesses.
A few employers generally understand the basics of what is considered workplace harassment, but many often neglect or tend to forget that discrimination plays a significant role. According to the EEOC, unlawful harassment is a form of discrimination that can violate one or more federal statutes, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA). Workplace harassment and discrimination can relate to each other because both may involve unwelcome verbal or physical conduct and behaviors often associated with protected classes including race, color, religion, sex, sexual orientation, national origin, ethnicity, age, and disability. Harassment may result from internal sources (e.g. employees and managers) or external sources (e.g. customers, vendors, and visitors to the workplace).
Examples of workplace harassment include:
- Use of derogatory or mockery words encompassing skin color, religion, gender, age, and stereotypes.
- Body language (e.g. profane gestures) and materials (e.g. explicit photos) considered offensive.
- Insulting inferences or sexual references about an individual’s appearance (e.g. body parts or clothing attire).
An employer can be held liable for harassment by a supervisor that results in negative employment actions such as termination, failure to promote or hire, and loss of wages. In 2011, the EEOC stated 16.3% of charges were filed by males regarding sexual harassment. Employers having any knowledge about harassment (even alleged) and failing to take prompt and appropriate corrective action, can be held liable for harassment by non-supervisory employees or non-employees of whom it has oversight responsibilities (e.g. independent contractors or customers on the premises). If a complaint is filed with the EEOC, a determination as to whether the harassment is severe or pervasive enough to be deemed illegal is made on a case-by-case basis.
Harassment prevention training is the best tool to decrease or eliminate harassment in the workplace. Take proactive (and documented) steps to prevent and correct prohibited harassment prior to it becoming pervasive or unlawful. Clearly communicate to employees that unwelcome harassing conduct will not be tolerated. In particular, provide anti-harassment training to all managers and employees on a regular basis. Determine if the state you do business in, requires sexual harassment training. Three states (California, Connecticut, and Maine) currently require sexual harassment training to be provided for supervisory employees according to company size and other factors.
Employers should strive to create an environment in which employees feel free to raise concerns and are confident that those concerns will be addressed. Therefore, minimize your company’s liabilities by protecting your business against law suits and preventing harassment in the workplace by consistently communicating and educating all of your employees and supervisors.
Q. Can an employer make its employees clock out for breaks of 5 minutes?
A. No, an employer may not require employees to clock out for breaks of five (5) minutes and be unpaid for that time because this practice violates the federal Fair Labor Standards Act (FLSA).
According to the US Department of Labor, “the FLSA does not require employees be given meal or rest breaks. However, if employers do offer short breaks (lasting about 5 to 20 minutes), federal law considers these short breaks time for which employees must be compensated. Bona fide meal periods (typically lasting at least 30 minutes), serve a different purpose than short rest or snack breaks and, thus, are generally not time for which employees must be compensated.” At the same time, for documentation purposes, an employer may require employees to track (using a device or timesheet) the times employees started and ended their rest breaks. Note: Some state laws differ than the federal laws in regards to required meal/rest breaks.
Q. If a company requests a verification of employment about a former employee, may I discuss any negative issues which our company experienced with the individual in question?
A. To minimize your exposure to defamation, retaliation, or other civil claims, we recommend only providing information that is objective in nature, such as dates of employment, job title, job description, and salary information. Some employers opt to state whether or not the former employee is eligible for rehire. Such information is generally considered objective in nature. In addition, you may reasonably divulge certain critical information such as clearly documented security and public safety concerns. Still you should share with caution and, of course, document accordingly.
Q. What is the difference between disparate treatment and disparate impact?
A. The federal Equal Employment Opportunity (EEO) laws define two types of unlawful discrimination – disparate treatment and disparate impact.
Disparate treatment is discrimination that occurs when protected classes (e.g. race, color, religion, national origin, age over 40, sex, familial status, sexual orientation, gender identity, disability status, veteran status and genetic information) are intentionally treated differently from other employees or are evaluated by different standards. For example, a manager automatically rejects applicants of a particular ethnicity by assuming they might be illegal aliens.
Disparate impact (also known as adverse impact) occurs when rules applied to all employees have a different and more inhibiting effect on a protected class than on the majority. This type of discrimination is usually unintentional. For example, an employer hires only high-school graduates for custodial positions. To minimize the risk of employee complaints and employment law compliance penalties, regularly educate and train all of the managers and supervisors to become more aware of and cautious about various forms of unlawful discrimination.