The HR Cafe

YOU BE THE JUDGE: Disability discrimination or poor performance

Email Address

Close

Did an oral protest about disability discrimination hold up in court?

“I thought I asked you to have that report on my desk first thing this morning,” Supervisor Nancy Marvin said to Dave Carson.

“I'm sorry,” Dave replied. “When we discussed the report last week, I may have misheard the exact deadline. You know I don’t always hear everything the first time,” he added, pointing to his hearing aid.

Nancy started to respond, but Dave went on. “I'll finish up the report as soon as possible, but we’ve talked before about how I really need oral instructions followed up in writing because of my hearing problem.”

Words challenged

“Don’t try to put the blame for this on me,” Nancy snapped. “How am I supposed to work with you if you can’t hear?”

Dave stared at her for a long moment. “Aren’t you being discriminatory?” he asked.

“Excuse me?” Nancy demanded. She paused. “All right, I’m not going to argue about what you did or didn’t hear. Let’s just take a moment.”

She took a deep breath, then said, more calmly, “The priority is getting this report done today – can you get it to me by noon?"

"Yes," Dave answered. "I'll give it to you by noon."

Nancy proceeded to write a negative evaluation of Dave’s performance and three days later terminated him. 

Dave sued the company for disability discrimination and retaliation. Did he win? 

Yes, Dave won his lawsuit.

A federal appeals court held that supervisor Nancy retaliated against Dave because he made an informal complaint about her discriminatory comment regarding his disability. Yes, Dave’s short sentence –

“Aren’t you being discriminatory?” – amounted to an informal bias complaint, the court ruled. A complaint doesn’t have to be long or written down.

When the supervisor whipped up a negative evaluation and fired Dave on the heels of this complaint, it  pointed to a retaliatory intent, the court noted.

Actions and words speak loudly

The supervisor may or may not have had reason to fire Dave for his work performance, but her bias against his hearing disability came through loud and clear. The supervisor:

• Failed to follow the agreed-upon accommodation by not following up her verbal instructions to Dave in writing.

• Commented disparagingly on his disability.

• Wrote a negative evaluation of him  immediately after their argument.

• Terminated him just three days after he challenged her comment.

Don't trust HR: They’re softies with no business savvy

Email Address

Close

Dear HR Executive:

Professor Richard Beatty of Rutgers University has a message for hard-headed business types: Don’t trust HR people. 

“They don’t think like business people,” the prof told attendees at the CFO Rising conference last spring. “Many of them entered human resources because they wanted to help people, which I’m all for, but I’m also for building winning organizations.”

Which, apparently, HR people are against.

He also said:

• “The language of organizations is numbers, [but] HR isn’t very good at data analytics.”

• “HR wants to treat most employees the same way, and they spend considerable time trying to defend or fix poor performers, taking on the St. Bernard role.”

Beatty thinks the “employer of choice” concept is another example of soft-headed HR think. “If you are the employer of choice, who’s going to be applying for your jobs? Everybody and their dog’s brother.” Employers of choice attract “those who simply want to find a good place to hide out,” he warns.

He's down on training, too, if it's to improve subpar performers. He suggests firing them and moving on. “Low turnover isn’t necessarily a good thing,” he says. “Think about where you want to disinvest."

And he doesn’t believe HR is ready to handle the really grown-up tasks, such as finding and retaining strategic talent. Companies are better off bypassing HR and putting someone else in charge of that task, he suggests.

So guess what Professor Beatty teaches at Rutgers? Finance? Accounting? Nope. He’s the director of the Master in Human Resource Leadership Program.

Thoughts? Comments? Post them below. We’ll forward them to the prof and invite a response.

Here's a link to an article from CFO Magazine, which covered his speech to a crowd of CFOs in March 2009.

Michael Boyette
Editor
HR Café Training Center

Employee terminations: Five ways to make your severance agreement bulletproof

Email Address

Close

Dear HR Executive:

A severance agreement usually contains a release committing the departing employee not to sue you. But employee termination releases aren’t 100% bulletproof unless you handle them just right.

Here, from a recent case involving a Ford Motor Co. employee in Illinois, are five factors a court will consider if an employee tries to sue despite having signed a release of claims:

1. The employee’s education and work experience. A person who lacks a high school education, is new to the work force, or reads poorly may not understand the release. 
2. The amount of time prior to employee termination that the employee had to decide whether to sign or not. While there’s no set amount of time, it’s wise to give at least a week. 
3. Whether the employee actually read the release before signing. Include a separate signature line where the employee certifies having read and considered it. 
4. Whether the employee consulted an attorney. You can’t oblige people to do so, but the release can recommend it. 
5. Whether the language is clear. Here’s an example of clear language:  The employee “agrees to release any and all rights and claims” against the company and not “institute any proceedings of any kind” related to his or her employment.

By the way, the federal appeals court ruled in favor of Ford, which had dotted all the i’s and crossed all the t’s. The case is Hampton v. Ford Motor Co.

Dave Clemens
Editor
HR Café Newsletter

Sexual harassment: "You probably did it. That’s what men do.”

Email Address

Close

Dear HR Executive:

When you field a sexual harassment complaint, it can feel like you're walking a tightrope. Often, you’re dealing with an emotional complainant and an indignant accused – both of whom swear their version of events is the true one and the other is a big liar. It’s easy to get sucked into the story of one party or the other – especially that of the unhappy victim. But only trouble is ahead if you do.

Boys will be boys?
Case in point: In Sassaman v. Gamache, a female employee accused a male colleague of sexually harassing and stalking her. The man’s boss told him that if he didn’t resign, he’d be fired. 

The employee resigned, but later sued for sex discrimination. He recounted a climactic conversation in which the supervisor told him: “I’m afraid she’ll sue me. And besides, you probably did what she said you did because you’re male and nobody would believe you anyway.”

In court, the employer claimed the supervisor was only giving his opinion as to what other people thought, not justifying the forced resignation. But a federal appeals court thought otherwise, and allowed the male employee’s case to go to trial. The court said the supervisor defended his decision to side with the female employee “by pointing to the propensity of men, as a group, to sexually harass women.” This made it look like the man was forced out because of  “invidious sex stereotypes,” the court said.

“Guilty until proven innocent”
The court wasn’t sympathetic to the employer’s argument that it feared a lawsuit from the female employee if it didn’t get rid of the man. “Title VII requires employers to take claims of sexual harassment seriously,” the court said. But “it also requires that, in the course of investigating such claims, employers do not presume male employees to be ‘guilty until proven innocent.’ ”

That puts HR right back on that tightrope. Assuming a harassment allegation is male-on-female (still by far the majority of cases), you’re delinquent in your duty if you lean toward “he said.”  But if you lean toward the “she said,” you risk discriminating against the man as a man.

What’s the solution? A thorough and impartial investigation. In this case, the court was clearly swayed by the fact that the employer didn’t do such an investigation. The employer made “minimal, if any” efforts to verify the female employee’s allegations, the court said.

Although the supervisor did refer the matter to the local sheriff’s office – which found no indication of criminal activity – he didn’t investigate. Nor did he have his assistant look into the allegations. And he didn’t refer the case to the employer’s Equal Opportunity Officer. 

So although there were plenty of people around who could have investigated the female employee’s allegations – as well as the man’s counterclaims – nobody did.  And the employer ended up holding the bag. 

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

UNLIMITED-ACCESS FREE TRIAL -- RAPID E-LEARNING LIBRARY FOR COMPLIANCE, LEADERSHIPSHIP AND HR: Finally, concise, fast-paced online training that your people will actually watch? Our modules, called Quick Takes, are just six to 10 minutes long. Quick Takes are an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Rapid Learning Center. Want to see what it's about before you sign up for a trial? Check out just one program from our huge library of content. It's an eight-minute "Quick Take" training module called "Why 80% of Training Doesn't Stick."

Please tell me April Fool's came late this year

Email Address

Close

Dear HR Executive:

Business is hurting. You’ve got to cut staff. You’re worried about the impact of layoffs on employee morale, productivity and your company’s image in the marketplace.

The CEO comes to you and says, “So how do I decide who’s getting the pink slips?” What do you recommend?

A. Make the layoffs based on the best interests of the company
B. Make the layoffs based on the best interests of the company
C. Make the layoffs based on the best interests of the company
D. Make the layoffs on a reality show

Okay, we tried to make it easy. But, according to Fox TV, there’s no shortage of companies who believe the correct answer is D.

The network has green lighted a new reality show, “Someone’s Gotta Go.” Each episode will feature a company with about 15 or 20 employees that needs to cut costs because of the economy. Instead of the boss deciding who is fired, the company will open its books to show everyone’s salaries and let the employees make the call.

Forget Trump and his weird hair. This is Spectacle! Real people losing their livelihoods right in America’s living rooms!

Mike Darnell, chief of alternative programming at Fox, said they’ve had “absolutely no trouble” finding companies willing to participate in the series.

Am I the only one who feels like the floor has given way and we’ve plunged into a terrible Bizarro universe where someone’s idea of fun is to set up a video camera on Deadman’s Curve and wait for the 6:05 to jump the tracks? (Note to Fox TV: Don’t get any ideas.)

You can only hope your competitors decide to avail themselves of this great opportunity for free publicity: “Let’s show the world – including all of our customers, future customers, potential investors and prospective employees -- just how dysfunctional and petty we are! Let’s shine the ol’ Fox searchlight on our extreme lack of judgment! We’ll be a household name. And then when it’s all over, we’ll go out and … and….”

What? Get new customers? Recruit top talent? Get a line of credit to rebuild the business? What exactly would the long-term plan be?

Is it just me, or is this the worst idea ever? Comments, anyone?

Michael Boyette
Editor, HR Cafe Training Center

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference, "Performance Management: Why Alignment is Now Priority #1 - and How to Achieve it."  When employees fully invest themselves in their work, there’s a huge payoff to the bottom line. Despite the obvious benefits of an engaged workforce, studies have consistently shown that only one-out-of-four employees work to their full potential – more than half do only the bare-minimum required to keep their jobs – and 75% say they could be significantly more effective if they chose to be!  On Tuesday, April 14, our speaker, Christopher D. Lee, Ph.D., SPHR, will present a fast-paced, fun, and informative session that will provide you with a host of tips, tricks, tools and techniques you can use right away to transform minimally engaged employees into a workforce that goes the extra mile for your business.

Terminations -- building ironclad documentation

Email Address

Close

Dear HR Executive,

Is your organization looking to shed underperformers as a way of economizing during the current slowdown?

If so, you’ll need ironclad documentation to support terminating these people and avoid legal problems later.

Here are six steps for building the documentation you need:

1. State your expectations. Be clear on what’s expected. This avoids debate and excuses later. For Joe in production, whose output has been falling, you’ll note the company expects a monthly average of X units/hour. For Mary in payroll, who hasn’t learned some new procedures, you’ll state exactly which procedures she needs to know.

2. Describe what must change. Don't make broad accusations. Specify what the employee has been doing wrong. You’ll remind Joe that for six months, his production has lagged by X%. For Mary, you’ll say her failures have made her supervisor work overtime.

3. Get their explanation. Two reasons: a) it’s fair and b) the employee’s rationale for his/her behavior may be weak or absent. That gives you solid grounds for any later action. Joe says he’s been under the weather lately. Mary says she needs glasses, and can’t read the manual on procedures.

4. Formulate a plan. Even if you suspect employees won’t improve, you need a plan for them to do so. Then they can’t say you didn’t work with them. With Joe, you set interim benchmarks and track his progress. You agree Mary will get glasses, read the manual, and have weekly Q&A sessions on the procedures with her supervisor.

5. Set a time frame. A plan without a time horizon is no plan at all. You might give Joe 30 days and Mary 60, depending on how mission-critical the improvement is in each case.

6. State the consequences. We all know the phrase: “Discipline up to and including termination.” It’s boilerplate, sure, but necessary. The employee needs to know where the endpoint is.

Dave Clemens

Editor in Chief

The HR Cafe Newsletter

A simple technique for dynamite exit interviews

Email Address

Close

Dear HR Executive:

I used to conduct the lamest exit interviews. I'd ask people the usual questions:

• Why are you leaving? (a better opportunity came along; they came after me.)
• How good was your relationship with your boss? (oh, he was fine)
• Was money a factor? (not really)
• Is there anything the company could have done to keep you? (no, the company's great)

The answers were always useless. People didn't want to burn bridges by saying anything bad about the company or their boss. I always felt I'd learned nothing from these meetings.

Top salespeople will tell you that the key to selling is asking the right questions. They'll also tell you that the phrasing of the question determines how effective it will be. That's true in any situation where you're communicating with people, and I came across a technique for phrasing questions in exit interviews that immediately turned dud interviews into incredibly insightful ones.

And it was so simple. All you do is ask people to answer using a scale. For example:

• On a scale of 1-10, how happy were you with your boss (1=not happy; 10 = very happy)?

Now you'll tend to get answers like 6 or 7, which could easily be misinterpreted as meaning the employee was satisfied with her boss. But she wasn't. When a good employee that you really wanted to keep answers 6 or 7 to this question, it means she left because she there was something missing in her relationship with her boss.

• On a scale of 1-10, how well do you think you were compensated (1=not well at all; 10 = very well)?

Again, you'll get 6's or 7's, which means that they were extremely unhappy with their pay.

• On a scale of 1-10, how well do you think our company trains and develops its people?(1=very poorly; 10 = extremely well)?

You get the idea. Sometimes I found that people landed a super job and they deeply regretted leaving. They tended to give us high marks, mostly 9's and 10s. They told the truth. But when you start getting 5's, 6's and 7's, people are sending you a message in code that they were deeply dissatisfied with your company. The genius of this technique is that it coaxes people into revealing what they really believe, without having to come right out and say it.

Follow up questions can get you the details, as in: "Jody, you gave your boss a 7. That's not a bad rating, but describe to me what a 9 or a 10 looks like." Jody will then describe the missing qualities that she hopes her new boss will have (which is telling you in code what her last boss lacked). You get what you want and Jody doesn't feel she's badmouthed anybody.

Exit interviews are really important because they help you identify dysfunctional patterns that cause turnover. But they're useless unless people tell you the truth. Try this technique and you'll get it (or at least you'll get a lot closer).

Stephen Meyer
B21 Publisher

B21 Interactive scenario: Reluctance to fire people

Dear HR Executive,

For a manager, learning how to fire someone is a rite of passage. If you can't do it, it's a knock-out factor -- you'll never be a member of the managerial club. Here's a scenario from B21's newsletter Human Resources 21 that describes a situation an HR person might face with a new manager. In the "comments" link below, tell us how you'd handle it (and see how your peers responded as well.).

Stephen Meyer
B21 Publisher

Scenario: New manager gets cold feet before firing for the first time

“Can you tell Susan Henderson she’s fired?” asked Manager Carl Cooper, a 20-something worker who’d been promoted to management about a year earlier.

“That’s your job,” said HR Manager Marlene Maitland. “You’re the one who warned her about her chronic lateness and lagging performance.”

“I know,” said Carl. “But some of this stuff sounds like it isn’t her fault. Her youngest child is sick a lot, and her ex-husband gives her a hard time.”

“Carl, you gave her one chance after another, and then finally you executed the progressive discipline policy,” said Marlene. “We can’t let an employee’s personal problems drag down our business’s performance.”

“I know,” said Carl. “But ...”

“You’ve handled this well so far,” said Marlene. “But Susan’s shown no improvement. You and your boss and I have all reviewed Susan’s situation, and made the decision. Now you need to take the last step and tell her.”

“But Susan is so ... nice,” said Carl. “She’s got a good attitude. It just seems ...”

“Are you going wobbly on me, Carl?” asked Marlene, smiling.

“No, it’s just I’ve got a lot of stuff on my plate and don’t have time for a long conversation,” said Carl.

“Besides, I have to send Susan to HR so she can collect her pay, anyway. So you should do it.”

“You’ve never done this before, have you?” asked Marlene.

“No,” said Carl. “In fact, I’ve never even broken up with anyone. I married my first girlfriend.”

“All right, let me walk you through firing a nice person,” said Marlene.

What advice what you give Carl in how to terminate a worker?

Please click on the "comments" button below to share your thoughts.

RISK-FREE TRIAL -- ONLINE TRAINING LIBRARY FOR HR AND MANAGERS: Want to learn about an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Cafe Training Center Online. It's a powerful resource that allows HR executives to deploy high-impact training modules effortlessly throughout their organizations. Want to see what it's about before you sign up for a trial? Check out just one program from the huge library of content in the HR Cafe. It's a six-minute "Quick Take" training module called "Why 95% of Training Doesn't Stick."

Firing and Documentation

Email Address

Close

Dear HR Executive:

B21 is a major audio conference provider for HR professionals. Occasionally we sum up the key points in past conferences. Here's an article that ran in our newsletter Human Resources 21 on how to document terminations. Read on.

Stephen Meyer
B21 Publisher

Keys for properly documenting firings

Have you ever been hesitant to fire a worker for fear of discrimination lawsuits? Most HR people have at one point or another.

The good news: You can take back control of the situation by giving yourself some leverage in the firing process. The key is to have good documentation from day one.

Here are the documents you’ll need:

1.The employee’s signed application. Check the education, job titles and dates of employment of each worker. You could find these useful later. Why? If you find out the worker has misstated something on her application, you’ll have legitimate grounds for firing her.

2. Records of performance evaluations. Regularly evaluate workers’ performance and document it. If you have records of an employee’s poor performance, you’ll have strong evidence for the termination.

3. Detailed disciplinary memos. These memos have a twofold purpose: One, they inform the employee of the needed improvement. Two, when you fire the worker, he may give the memos to his lawyer, who may glance at them and decide the worker doesn’t have a case.

4. Notes of your investigation. Focus on the employee’s misbehavior or poor performance, rather than any assumptions or guesses. Make it clear what the employee did wrong with specific, factual notes. In addition, avoid filling your notes with subjective opinion. Instead, stick to what happened, because the court may see opinions as a sign of bias.

Note: Allow yourself some elbow room in your progressive discipline policy in case workers try to accuse you of disparate treatment. Instead of writing a policy that says, “After two warnings, employee will be terminated,” say, “We may take the following steps if a worker violates company policies.”

Source: Audio Conference by Alyssa Senzel, How to Document Terminations (So You Won’t Lose a Lawsuit), 6/7/06

Radio Shack email firing

Email Address

Close

Dear HR Executive:

The recent Radio Shack firing of 400 employees by email is right out of Dilbert. The email message, sent to 400 canned employees, read, “The work force reduction notification is currently in progress. Unfortunately your position is one that has been eliminated.”

Mitigating factor: Radio Shack did announce in advance that this was going to happen. But still, how did they decide to do it by email? My first thought was to save money. I did the math on what it would have cost to personally meet with each of those 400 people. If they'd assigned a few HR administrative people to spend 15 minutes with each one, it would have cost about $3,000 (100 hours times $30/hr). But since they were already spending millions of dollars in severance -- some employees got as much as 36 weeks' pay -- $3,000 to give people a little dignity doesn't seem like much, does it?

My second thought was that it would have been really unpleasant to lay off 400 people in person. But isn't that one of the reasons you hire and train HR people, to handle such unpleasant tasks efficiently and humanely?

So what's the reason? Most likely a combination of #1 and #2. Some misguided soul said, "Let's send an email. It'll save money and avoid a lot of unpleasantness." And a bunch of other misguided souls agreed. But my guess is a lot more than 400 people at Radio Shack (and elsewhere) have used the word "spineless" to describe Radio Shack top management.

One key benefit of laying off people in person is that it's less likely to provoke anger, which dramatically reduces the likelihood you'll get sued. People sue because they're angry, not because they're right. A skillful HR professional knows how to let someone vent, explain the reasoning behind a layoff, and decrease the likelihood that an employee walks out of the room wanting to take vengeance by calling a lawyer.

It'll be interesting to see how many Radio Shack employees do just that.

Stephen Meyer
B21 Publisher

Here's an article from the newspaper about the Radio Shack layoff:

Radio Shack Lays off 400 via email

[Associated Press] RadioShack Corp. notified about 400 workers by e-mail that they were being dismissed immediately as part of planned job cuts.

Employees at the Fort Worth headquarters got messages Tuesday morning saying: “The work force reduction notification is currently in progress. Unfortunately your position is one that has been eliminated.”

Company officials had told employees in a series of meetings that layoff notices would be delivered electronically, spokeswoman Kay Jackson said. She said employees were invited to ask questions before Tuesday’s notification on a company intranet site.

Derrick D’Souza, a management professor at the University of North Texas, said he had never heard of such a large number of terminated employees being notified electronically. He said it could be seen as dehumanizing to employees.

“If I put myself in their shoes, I’d say, ‘Didn’t they have a few minutes to tell me?’” D’Souza said.

Laid-off workers got one to three weeks pay for each year of service, up to 16 weeks for hourly employees and 36 weeks for those with base bay of at least $90,000, the company said.

The company announced Aug. 10 that it would cut 400 to 450 jobs, mostly at headquarters, to cut expenses and “improve its long-term competitive position in the marketplace.” RadioShack has closed nearly 500 stores, consolidated distribution centers and liquidated slow-moving merchandise in an effort to shake out of a sales slump.

RISK-FREE TRIAL -- ONLINE TRAINING LIBRARY FOR HR AND MANAGERS: Want to learn about an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Cafe Training Center Online. It's a powerful resource that allows HR executives to deploy high-impact training modules effortlessly throughout their organizations. Want to see what it's about before you sign up for a trial? Check out just one program from the huge library of content in the HR Cafe. It's a six-minute "Quick Take" training module called "Why 95% of Training Doesn't Stick."