I “coffee shop” commute from time to time. This morning, I had the unfortunate opportunity to overhear a disciplinary discussion at a table less than 2 feet from me. I could not not listen. At first I just thought it rude that the manager didn’t give her junior an opportunity to get a latte first since she herself was drinking one. But as the conversation went on, I became more and more appalled by what I was hearing. I listened to a manager chew out an employee in a public place, with emphatic hand gestures and all, for close to an hour. So, instead of working on a project at hand, I thought it an opportune moment to blog on what I call The Rules of how not to have a disciplinary discussion.
Rule #1. First among my guidance to clients on performance and disciplinary conversations is to do it in a non-public place where the conversation will be undisturbed and the recipient will not be embarrassed by the lack of privacy. Seems like common sense to me but here I am listening to this conversation so clearly it’s not. Additionally, these two I am hearing must work for a nearby business so the odds of a co-worker coming in and seeing this are high.
Rule #2. STEEL yourself. This applies to planned and unplanned performance management conversations. STEEL stands for: Specific, Timely, Explain, Empathy and Listen.
Your discussion should include specific exmaples of objective facts, not just conclusions. Telling an employee that you do not like their attitude is not nearly as effective as telling them that you consider a particular comment or action to be unprofessional. Additionally, focus your comments on performance or conduct, not the person.
Have this conversation in a timely manner. Addressing performance issues quickly, both good and bad, has the most potential to correct or encourage a situation. I once won a major summary judgment for a client. The client was ecstatic and sent me flowers and a gift card. My supervising attorney said nothing… until performance review time three months later. It was listed among my accomplishments for the year. His office was right next to mine. He knew about the win and saw the flowers. What would it have hurt if he had stuck his head into my office and said, “Congratulations. Great job.” Instead, a decade later, the issue still sticks in my craw.
Next, be certain to explain to the employee your specific expectations. Vague statements like, “You need to improve your sales” are not as powerful as “I want to see you get these numbers up by 10 percent this quarter.” Have a positive plan formulated, including corrective action to enhance performance.
Have some empathy. Remember that the person you are speeaking with is, hopefully, trying to meet your expectations. Don’t paint them into a corner by telling them their performance in the worst you’ve seen in 15 years.
And, finally, listen. The truth is that people often have legitimate explanations for the reason they are doing what they’re doing. Sometimes, their reason may even trump your discipline. Given an opportunity, in a performance discussion about attendance, an employee with a disability will reveal their situation. This is a good thing. You need to take that fact into consideration. An employee who leaves the warehouse floor may have done so because he had been made aware of a potential safety hazard in the backroom. Again, this is the kind of employee who needs to be heard, not simply disciplined.
Rule #3. In a planned evaluation discussion, I advise preparing a written evaluation in advance of the conversation. Provide the employee with a copy. Select a time (and a place!) where you will not be interrupted. Ensure that not all of your evaluations are the same! If every employee receives an evaluation of “exceeding expectations” then that rating obviously carries no weight. Finally, if you anticipate any problems with how the discussion will transpire, review the issues is advance with your Human Resources professional.
Rule #4. Avoid the Halo Effect. Do not let your positive feedback in one area of performance effect your evaluation of another area. The salesperson with high production but rotten interpersonal skills still needs to be advised on improving her people skills. Expect the whole package from your employees in every evaluation and tell them you do.
Rule #5. Avoid the Horn Effect. Do not let your negative opinion of one area impact your review of the other areas of performance. An employee with great leadership skills and a notable devotion to their work should have that acknowledged and not hear only about their marketing failures.
Rule #6. Don’t let the employee’s length of performance impact their evaluation. Just because they have been an employee for ten years and have “always done it this way” does not mean it is something that should be tolerated. Likewise, if an employee is a new employee, do not let issues go unaddressed until the next review. By then, the employee will only have built up another year of bad habits.
Rule #7. Anticipate responses to your evaluation. Why am I just hearing about this now? Amy got a second chance, why not me? Is this because I complained? Can I appeal this? Is my job on the line? These are all legitimate questions. Think through the answers in advance of the conversation. And if you do not know the answer, talk to your HR professional. In particular, prepare yourself for the comparator question: what about Amy? In the conversation this morning, the manager told the employee that another employee was not going to be written up for her conduct. I’d have advised her to instead tell the employee that Amy’s situation is separate from her own and that she was not there to discuss Amy’s performance with her.
These are basics. When I provide performance management training, I go into more detail and provide more examples. It’s important to remember that performance reviews are emotional, especially when they are negative. This makes them fodder for lawsuits. A poorly handled disciplinary discussion (in, for example, a local coffee shop) is humiliating. Juries do not like it when employees are humiliated, whether their performance is up to par or not.
Wednesday, May 11, 2011
Tuesday, March 1, 2011
Can An Employee Be Fired For Calling Her Employer A 'Scumbag' on Facebook?
The answer is not as obvious as previously believed. On Feb. 7, 2011, the National Labor Relations Board (NLRB) and American Medical Response of Connecticut, Inc. (AMR) settled a charge related to this very issue. The fact of settlement is a signal to employers that their social media policies need to be clearly communicated and in compliance with NLRB regulations.
In this matter, an AMR employee posted derogatory comments about her employer on Facebook from her home computer. Specifically, she referred to her supervisor as a “scumbag” and compared AMR management to psychiatric patients. AMR fired the employee citing its policy prohibiting employees from disparaging the company or commenting on the company online without permission.
The NLRB characterized AMR’s nondisparagement policy as “overbroad” because it potentially infringed on an employee’s right to discuss working conditions with other employees. Such a restraint on employee activity is prohibited under federal labor law. The NLRB also claimed that AMR’s termination of the employee was illegal because she was complaining about the general terms and conditions of her employment and her co-workers had been prompted by her posting to respond.
The NLRB considers such “water cooler conversations” about shared working conditions “protected concerted activity.” For an employer this means that Facebook complaints may be deemed protected speech – especially where more than one employee is involved in the “conversation.” The NLRB’s position is that taking adverse action against an employee under such circumstances is unlawful. This means that “overly broad” social media policies create potential liability for employers under the NLRB.
Under the terms of the settlement, the company agreed to revise its social media policy to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions. Because part of the allegation was that the employee was denied union representation during an investigatory interview before she posted the Facebook comments at issue, AMR also agreed that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. http://www.nlrb.gov/news/settlement-reached-case-involving-discharge-facebook-comments
The lesson from this case is to consider whether your company’s social media policy restricts off-duty conduct. Relevant case law suggests that employers need to be cautious when attempting to restrict what an employee can or cannot say about the company off-the-job. One key suggestion is to avoid policies that overrun areas where employees have a high expectation of privacy (e.g., personal e-mail and password-protected Web pages like Facebook). Also avoid penalizing employees for engaging in protected concerted activity (e.g., discussing working conditions with co-workers, no matter the forum). Importantly, a policy prohibiting employees from denigrating the employer’s product or services on a social media website would likely be enforceable.
Remember that a policy addressing employee use of social media is not a “one-size-fits-all” endeavor and if you are using a handbook found online it is vital to review it with an eye towards the ever-changing laws on these issues. I advise my clients to ensure that an experienced employment lawyer reviews their handbooks. Your social media policy is not the only policy that may be subject to legal constraints. Different employers bring different legal considerations to that review and the lawyer reviewing your handbook needs to be well-versed in those considerations.
As always, any policy should reflect the unique needs and values of the company and its core values and mission statement. These tend to set the tone for the employer-employee relationship and the social media policy should reflect these ideals just like every other policy in your handbook.
Finally, consider how the policy will be communicated to employees. Ensure that employees and supervisors are educated about the new policy and provide training, if needed. Review the policy on a regular basis to make sure it effectively addresses the world of social media and its evolving landscape.
In this matter, an AMR employee posted derogatory comments about her employer on Facebook from her home computer. Specifically, she referred to her supervisor as a “scumbag” and compared AMR management to psychiatric patients. AMR fired the employee citing its policy prohibiting employees from disparaging the company or commenting on the company online without permission.
The NLRB characterized AMR’s nondisparagement policy as “overbroad” because it potentially infringed on an employee’s right to discuss working conditions with other employees. Such a restraint on employee activity is prohibited under federal labor law. The NLRB also claimed that AMR’s termination of the employee was illegal because she was complaining about the general terms and conditions of her employment and her co-workers had been prompted by her posting to respond.
The NLRB considers such “water cooler conversations” about shared working conditions “protected concerted activity.” For an employer this means that Facebook complaints may be deemed protected speech – especially where more than one employee is involved in the “conversation.” The NLRB’s position is that taking adverse action against an employee under such circumstances is unlawful. This means that “overly broad” social media policies create potential liability for employers under the NLRB.
Under the terms of the settlement, the company agreed to revise its social media policy to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions. Because part of the allegation was that the employee was denied union representation during an investigatory interview before she posted the Facebook comments at issue, AMR also agreed that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. http://www.nlrb.gov/news/settlement-reached-case-involving-discharge-facebook-comments
The lesson from this case is to consider whether your company’s social media policy restricts off-duty conduct. Relevant case law suggests that employers need to be cautious when attempting to restrict what an employee can or cannot say about the company off-the-job. One key suggestion is to avoid policies that overrun areas where employees have a high expectation of privacy (e.g., personal e-mail and password-protected Web pages like Facebook). Also avoid penalizing employees for engaging in protected concerted activity (e.g., discussing working conditions with co-workers, no matter the forum). Importantly, a policy prohibiting employees from denigrating the employer’s product or services on a social media website would likely be enforceable.
Remember that a policy addressing employee use of social media is not a “one-size-fits-all” endeavor and if you are using a handbook found online it is vital to review it with an eye towards the ever-changing laws on these issues. I advise my clients to ensure that an experienced employment lawyer reviews their handbooks. Your social media policy is not the only policy that may be subject to legal constraints. Different employers bring different legal considerations to that review and the lawyer reviewing your handbook needs to be well-versed in those considerations.
As always, any policy should reflect the unique needs and values of the company and its core values and mission statement. These tend to set the tone for the employer-employee relationship and the social media policy should reflect these ideals just like every other policy in your handbook.
Finally, consider how the policy will be communicated to employees. Ensure that employees and supervisors are educated about the new policy and provide training, if needed. Review the policy on a regular basis to make sure it effectively addresses the world of social media and its evolving landscape.
Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.
Tuesday, February 22, 2011
Is It Illegal To Refuse To Hire The Unemployed?
I’m re-posting an online article that I found interesting.
When speaking to the unemployed, discrimination is usually the last thing on their mind. After all, they’re not employed, right? But once they settle in and start browsing the web for that next job, things change. Inevitably, they come across a promising ad, only to be devastated when the ad lists “currently employed” under qualifications. Discrimination has taken on new meaning.
Discrimination against the unemployed has finally come to the attention of the Equal Employment Opportunity Commission, which has just announced that it is now investigating whether the practice is as widespread as anecdotal evidence suggests, and whether the practice of requiring current employment is illegal. Employment law experts are unsure what the EEOC will do, reports The Wall Street Journal.
Businesses Refuse to Hire Unemployed, EEOC says
by Stephanie RabinerWhen speaking to the unemployed, discrimination is usually the last thing on their mind. After all, they’re not employed, right? But once they settle in and start browsing the web for that next job, things change. Inevitably, they come across a promising ad, only to be devastated when the ad lists “currently employed” under qualifications. Discrimination has taken on new meaning.
Discrimination against the unemployed has finally come to the attention of the Equal Employment Opportunity Commission, which has just announced that it is now investigating whether the practice is as widespread as anecdotal evidence suggests, and whether the practice of requiring current employment is illegal. Employment law experts are unsure what the EEOC will do, reports The Wall Street Journal.
While the EEOC seeks evidence, it’s still possible to consider the legal side of the issue. Is it even legal to discriminate against the unemployed?
This is actually a tough question that requires a lot of statistical evidence. As it stands, employment discrimination laws do not explicitly protect the unemployed. Discrimination laws do, however, outlaw discrimination on the basis of race, color and age (over 40 years old).
Title VII and the Age Discrimination in Employment Act outlaw seemingly non-discriminatory selection policies that disproportionately affect protected classes of persons. This is referred to as a disparate impact.
As of January, the unemployment rate for African-Americans was 15.7%, 11.9% for Hispanics, and only 8% for whites. Not only that, one in every three short- to medium-term unemployed person was over 40, while over half of all long-term unemployed persons were also above 40. One expert also estimates that the anti-unemployed policies lower the chance of a minority being hired by 1/3.
Clearly an overwhelming proportion of unemployed persons are racial minorities or over the age of 40. And clearly these policies have a disproportionate impact on these legally protected groups. But that doesn’t make the policy illegal. The law also takes into consideration whether current employment is a necessary qualification, if there’s a less discriminatory alternative, and whether the policy is reasonable. So until there’s a final decision answering these questions, for those that are unemployed, discrimination will just have to be part of the game.
Related Resources:
This is actually a tough question that requires a lot of statistical evidence. As it stands, employment discrimination laws do not explicitly protect the unemployed. Discrimination laws do, however, outlaw discrimination on the basis of race, color and age (over 40 years old).
Title VII and the Age Discrimination in Employment Act outlaw seemingly non-discriminatory selection policies that disproportionately affect protected classes of persons. This is referred to as a disparate impact.
As of January, the unemployment rate for African-Americans was 15.7%, 11.9% for Hispanics, and only 8% for whites. Not only that, one in every three short- to medium-term unemployed person was over 40, while over half of all long-term unemployed persons were also above 40. One expert also estimates that the anti-unemployed policies lower the chance of a minority being hired by 1/3.
Clearly an overwhelming proportion of unemployed persons are racial minorities or over the age of 40. And clearly these policies have a disproportionate impact on these legally protected groups. But that doesn’t make the policy illegal. The law also takes into consideration whether current employment is a necessary qualification, if there’s a less discriminatory alternative, and whether the policy is reasonable. So until there’s a final decision answering these questions, for those that are unemployed, discrimination will just have to be part of the game.
Related Resources:
- EEOC Asks: Are Employers Discriminating Against The Jobless? (Huffington Post)
- Speakers at EEOC Meeting Say Ban on Unemployed Job Applicants Could Discriminate Illegally (ABA Journal)
- Unemployed need not apply (Kansas City Star)
Sunday, February 6, 2011
Protecting The Health of Your Practice: A Note From An HR (Juris) Doctor
I am an attorney. That said, the thought of putting together a will or providing advice on the impact of a bankruptcy strikes fear in my heart. I know just enough about those areas of law to be dangerous. The area of expertise on which I focus is employment law. When a friend or client asks me for guidance outside of my practice area, I tell them they are asking a foot doctor to practice brain surgery and refer them to an appropriate specialist.
Over the years, I have had a surprisingly high number of law firms and solo practitioners as clients. Unfortunately, every one of them has come to me after an issue has arisen. Each has been focused on practicing law. Along the way, though, they have forgotten that they are also managing a business and, consequently, employees. Perhaps they have just enough knowledge of employment law to be dangerous or, perhaps, the issues never occurred to them. Each made mistakes that could have been avoided with a little preventive care.
● Wage and Hour Laws. The most prevalent mistake my law firm-clients have made is no different from the mistake many employers make; they did not consider the implications of wage and hour laws on their business. Too many are paying a paralegal and/or an office administrator a “salary” and presuming that this covers any overtime pay requirements. This mistake has the potential to sneak up on them in one of two painful ways. Either the employee becomes disgruntled and sues, or, on a more frequent basis, the Department of Labor & Industries conducts an audit. The Department then demands fines and back payment of all the taxes that should have been paying into the system all those years. Then the auditor usually refers the matter to his counterpart at the Department of Revenue where this agonizing process starts all over again.
● Employment Contracts. The number of law firms that have “employment contracts” with associates continually surprises me. An employment contract is no different from any other contract; there are financial repercussions if it is breached. But in the employment arena, an employment contract is rarely necessary and, if not thought out thoroughly, can cost the firm both financially and emotionally. An employment relationship can generally be governed at the employer’s discretion. But if there is a contract, it takes on the characteristics of a business relationship and the employer has signed away a host of rights. Granted, there are occasions when a contract is to the benefit of both parties. I worked for a number of years at a general practice firm and, on occasion, a corporate lawyer negotiating a deal would think to have one of us in the employment law department review the executives’ contracts. There was always astonishment at the number of revisions we made. With our different practice focus comes knowledge of a variety of potential prognoses that should be considered.
● Handbook and Performance Reviews. Once a lawyer-client told me that he thought he should avoid documentation whenever possible. Documentation is, however, the best friend of anyone handling HR issues. Just like having a contract at the outset of a partnership gives all of the parties notice of the expectations of that relationship, a well‑formed handbook notifies employees of their employer’s expectations. Well‑written performance reviews are notice of whether the employee is meeting those expectations at various points along the way. Further, documentation is proof: proof of performance issues, proof of communication, proof of the relationship and its struggles and triumphs.
These are some of the most prevalent HR gaffes I have seen when working with small employers. There are others but most, if not all, are avoidable. Most can be resolved with minimal pain via consultation with an employment law practitioner. The good news is that a little preventive care can protect what you are working so hard to accomplish: a strong and healthy business.
Over the years, I have had a surprisingly high number of law firms and solo practitioners as clients. Unfortunately, every one of them has come to me after an issue has arisen. Each has been focused on practicing law. Along the way, though, they have forgotten that they are also managing a business and, consequently, employees. Perhaps they have just enough knowledge of employment law to be dangerous or, perhaps, the issues never occurred to them. Each made mistakes that could have been avoided with a little preventive care.
● Wage and Hour Laws. The most prevalent mistake my law firm-clients have made is no different from the mistake many employers make; they did not consider the implications of wage and hour laws on their business. Too many are paying a paralegal and/or an office administrator a “salary” and presuming that this covers any overtime pay requirements. This mistake has the potential to sneak up on them in one of two painful ways. Either the employee becomes disgruntled and sues, or, on a more frequent basis, the Department of Labor & Industries conducts an audit. The Department then demands fines and back payment of all the taxes that should have been paying into the system all those years. Then the auditor usually refers the matter to his counterpart at the Department of Revenue where this agonizing process starts all over again.
● Employment Contracts. The number of law firms that have “employment contracts” with associates continually surprises me. An employment contract is no different from any other contract; there are financial repercussions if it is breached. But in the employment arena, an employment contract is rarely necessary and, if not thought out thoroughly, can cost the firm both financially and emotionally. An employment relationship can generally be governed at the employer’s discretion. But if there is a contract, it takes on the characteristics of a business relationship and the employer has signed away a host of rights. Granted, there are occasions when a contract is to the benefit of both parties. I worked for a number of years at a general practice firm and, on occasion, a corporate lawyer negotiating a deal would think to have one of us in the employment law department review the executives’ contracts. There was always astonishment at the number of revisions we made. With our different practice focus comes knowledge of a variety of potential prognoses that should be considered.
● Handbook and Performance Reviews. Once a lawyer-client told me that he thought he should avoid documentation whenever possible. Documentation is, however, the best friend of anyone handling HR issues. Just like having a contract at the outset of a partnership gives all of the parties notice of the expectations of that relationship, a well‑formed handbook notifies employees of their employer’s expectations. Well‑written performance reviews are notice of whether the employee is meeting those expectations at various points along the way. Further, documentation is proof: proof of performance issues, proof of communication, proof of the relationship and its struggles and triumphs.
These are some of the most prevalent HR gaffes I have seen when working with small employers. There are others but most, if not all, are avoidable. Most can be resolved with minimal pain via consultation with an employment law practitioner. The good news is that a little preventive care can protect what you are working so hard to accomplish: a strong and healthy business.
Saturday, January 15, 2011
Happy New Year!
“New Year’s eve is like every other night; there is no pause in the march of the universe, no breathless moment of silence among created things that the passage of another twelve months may be noted; and yet no man has quite the same thoughts this evening that come with the coming of darkness on other nights.” ~ Hamilton Wright Mabie
Sunday, January 9, 2011
Smart Management Article Published In Yarn Market News
I’m excited to say that industry magazine, Yarn Market News, published my article on employee handbooks and policies in the Smart Management column of their January 2011 issue. The article is accessible only to subscribers to the magazine but I’m re-publishing excerpts of it here:
You were sitting in your favorite coffee shop, dreaming of turning your passion into a business. You decided to open a yarn shop, a place where people who shared your love of knitting could gather. Your shop would be a part of the community, just like that coffee shop. You would create a place with a creative and unique ambiance. You dreamed of finding the perfect location, the yarn you would carry, the classes you would offer, and the displays that would set your shop apart.
I would lay odds that you never imagined that your dream would also include the amount of personnel management that it does. If you are lucky enough to be like Lauren Lindeman, of So Much Yarn in Seattle, most of your employees have been good fits with your shop. Lindeman says that she usually knows her employees in some other capacity before they are hired on. She describes her shop as “small enough that we are like a family at home where everyone knows the rules.” Still, Lindeman feels that having written policies would help with the smooth operation of her shop and that this would save her time in the long run. Also, as an employer, you want to have some control over how the job is performed and how an employee conducts herself. In the absence of written policies, the employment relationship is often an improvisation. Essentially, you make up your policies as situations arise, or, more likely, after they have arisen.
For these reasons, I encourage clients to be proactive and do the minimal work involved in putting together a few key documents before they need them. The most important of these documents is an employment handbook. When I use the term “handbook” I sometimes get resistance. Many employers, especially in a cottage industry, do not want to “corporatize” their workplace. They feel a handbook is part of a workplace culture that they want to avoid. Do not avoid it simply because you do not like what it connotes. Instead have policies that are in tune with your workplace culture.
I work with my clients to create handbooks that are personal to their workplace. It is important that their policies reflect their approach to managing employees. Together we consider the practical implications of each policy. We also discuss the federal and state laws that are applicable to their business.
One of the problems with a one size fits all template that you might find online is that it is not state specific nor is it necessarily appropriate for your business. I recommend to my clients that they find basic policies online but spend the extra funds to have an attorney spend an hour or two tailor them. Be certain he or she is an employment attorney who is fully versed in the state laws that are pertinent to you. Every state has its own workplace laws and many of these are only applicable to your business if you have a specific number of employees.
Managing employees seems like a secondary priority when you are focused on running your business. But when the first employee issue happens, and it will, you may find that it could have been avoided by written policies. The following policies are among the most important to include.
Disclaimer. One danger of written employment policies is that your employees can “reasonably rely” on promises you make. A court can then find that your handbook is a contract with your employees. For this reason, expressly state that your handbook is not a contract and does not constitute a specific promise in any specific circumstance. Also leave yourself some “wiggle room.” Always give yourself the right to apply your policies as you see fit.
Code of Conduct. I recommend having a code of conduct policy. It can be a simple expectation of common sense, honesty and respect. Or it can be a detailed list of prohibited conduct like theft, workplace violence, and harassment. Lindeman says that the primary employee issue she has come up against is employee attitude. For Lauren, I would recommend a clear policy on the expected demeanor and deportment of her employees. No matter how you approach it, leave yourself the discretion to address any issue that might arise; you cannot anticipate everything so give yourself the flexibility to decide what discipline may be necessary in every situation.
Anti-Harassment and Anti-Discrimination. An employer who exercises “reasonable care” to avoid harassment and provides employees with ways to address harassment has an affirmative defense when a complaining employee fails to take advantage of the employer’s safeguards. A written policy stating how seriously you take harassment is an important part of establishing that defense and your workplace culture. Include the email address and cell phone number of at least one senior manager to make it as easy as possible for an employee to make their complaint.
Whichever policies you decide are most appropriate for your shop, be certain to give yourself the right to change them if and when you see fit. You will find that a good handbook gives you some “authority” when you sit down with the employee who does need performance coaching.
Simultaneously, a handbook gives your employees a greater sense of security and professionalism. Finally, it allows you to spend less time answering questions and explaining yourself, and more time doing what you love most, running your business.
You were sitting in your favorite coffee shop, dreaming of turning your passion into a business. You decided to open a yarn shop, a place where people who shared your love of knitting could gather. Your shop would be a part of the community, just like that coffee shop. You would create a place with a creative and unique ambiance. You dreamed of finding the perfect location, the yarn you would carry, the classes you would offer, and the displays that would set your shop apart.
I would lay odds that you never imagined that your dream would also include the amount of personnel management that it does. If you are lucky enough to be like Lauren Lindeman, of So Much Yarn in Seattle, most of your employees have been good fits with your shop. Lindeman says that she usually knows her employees in some other capacity before they are hired on. She describes her shop as “small enough that we are like a family at home where everyone knows the rules.” Still, Lindeman feels that having written policies would help with the smooth operation of her shop and that this would save her time in the long run. Also, as an employer, you want to have some control over how the job is performed and how an employee conducts herself. In the absence of written policies, the employment relationship is often an improvisation. Essentially, you make up your policies as situations arise, or, more likely, after they have arisen.
For these reasons, I encourage clients to be proactive and do the minimal work involved in putting together a few key documents before they need them. The most important of these documents is an employment handbook. When I use the term “handbook” I sometimes get resistance. Many employers, especially in a cottage industry, do not want to “corporatize” their workplace. They feel a handbook is part of a workplace culture that they want to avoid. Do not avoid it simply because you do not like what it connotes. Instead have policies that are in tune with your workplace culture.
I work with my clients to create handbooks that are personal to their workplace. It is important that their policies reflect their approach to managing employees. Together we consider the practical implications of each policy. We also discuss the federal and state laws that are applicable to their business.
One of the problems with a one size fits all template that you might find online is that it is not state specific nor is it necessarily appropriate for your business. I recommend to my clients that they find basic policies online but spend the extra funds to have an attorney spend an hour or two tailor them. Be certain he or she is an employment attorney who is fully versed in the state laws that are pertinent to you. Every state has its own workplace laws and many of these are only applicable to your business if you have a specific number of employees.
Managing employees seems like a secondary priority when you are focused on running your business. But when the first employee issue happens, and it will, you may find that it could have been avoided by written policies. The following policies are among the most important to include.
Disclaimer. One danger of written employment policies is that your employees can “reasonably rely” on promises you make. A court can then find that your handbook is a contract with your employees. For this reason, expressly state that your handbook is not a contract and does not constitute a specific promise in any specific circumstance. Also leave yourself some “wiggle room.” Always give yourself the right to apply your policies as you see fit.
Code of Conduct. I recommend having a code of conduct policy. It can be a simple expectation of common sense, honesty and respect. Or it can be a detailed list of prohibited conduct like theft, workplace violence, and harassment. Lindeman says that the primary employee issue she has come up against is employee attitude. For Lauren, I would recommend a clear policy on the expected demeanor and deportment of her employees. No matter how you approach it, leave yourself the discretion to address any issue that might arise; you cannot anticipate everything so give yourself the flexibility to decide what discipline may be necessary in every situation.
Anti-Harassment and Anti-Discrimination. An employer who exercises “reasonable care” to avoid harassment and provides employees with ways to address harassment has an affirmative defense when a complaining employee fails to take advantage of the employer’s safeguards. A written policy stating how seriously you take harassment is an important part of establishing that defense and your workplace culture. Include the email address and cell phone number of at least one senior manager to make it as easy as possible for an employee to make their complaint.
Whichever policies you decide are most appropriate for your shop, be certain to give yourself the right to change them if and when you see fit. You will find that a good handbook gives you some “authority” when you sit down with the employee who does need performance coaching.
Simultaneously, a handbook gives your employees a greater sense of security and professionalism. Finally, it allows you to spend less time answering questions and explaining yourself, and more time doing what you love most, running your business.
Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.
Wednesday, December 29, 2010
Disability Accommodation No Longer Medical Necessity in Washington State
In a decision last week, Johnson v. Chevron, the Washington State Court of Appeals held that an employee was not required to prove that his disability accommodation was “medically necessary” to enable him to perfrom his job. Johnson had sued the employer, asserting state law claims for race discrimination (disparate treatment) and disability discrimination (disparate treatment and failure to reasonably accommodate). The trial court granted summary judgment in the employer’s favor on Johnson’s accommodation claim, and the employer prevailed after a jury trial on the remaining claims.
The Appeals Court reversed concluding that: 1) “[t]he evidence was sufficient for a jury to find either that Johnson’s impairment had a substantially limiting effect on his ability to perform his job, or that the evidence, including medical documentation, established a reasonable likelihood that engaging in job functions without accommodation would aggravate the impairment to the extent that it would become substantially limiting[;]” and 2) the trial court had erred when it instructed the jury that Johnson was required to produce comparator evidence in support of his disparate treatment claims.
Importantly, the Court of Appeals rejected the proposition that Johnson was required to show that accommodation was “medically necessary” to enable him to perform his job. The Appeals Court ruling states that the 2007 statutory changes, which retroactively revised the Washington Law Against Discrimination’s definition of “disability” for accommodation purposes supersede, the “common law definitions” used in earlier WA disability case law, and that:
“‘Medical necessity’ is no longer the sole basis for a right to accommodation. Under the new statute, either the impairment must be the source of a substantial limitation or there must be medical documentation indicating a reasonable likelihood that engaging in the job duties without accommodation ‘would aggravate the impairment to the extent that it would create a substantially limiting effect.’”
This decision runs afoul of earlier Washington case law including Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 194 (2001) and Pulcino v v. Federal Express Corp., 141 Wn.2d 629, 640 (2000). I suspect this case will be appealed by Chevron to our State Supreme Court. For the full decision, see: http://case.lawmemo.com/wa/johnson.pdf .
The Appeals Court reversed concluding that: 1) “[t]he evidence was sufficient for a jury to find either that Johnson’s impairment had a substantially limiting effect on his ability to perform his job, or that the evidence, including medical documentation, established a reasonable likelihood that engaging in job functions without accommodation would aggravate the impairment to the extent that it would become substantially limiting[;]” and 2) the trial court had erred when it instructed the jury that Johnson was required to produce comparator evidence in support of his disparate treatment claims.
Importantly, the Court of Appeals rejected the proposition that Johnson was required to show that accommodation was “medically necessary” to enable him to perform his job. The Appeals Court ruling states that the 2007 statutory changes, which retroactively revised the Washington Law Against Discrimination’s definition of “disability” for accommodation purposes supersede, the “common law definitions” used in earlier WA disability case law, and that:
“‘Medical necessity’ is no longer the sole basis for a right to accommodation. Under the new statute, either the impairment must be the source of a substantial limitation or there must be medical documentation indicating a reasonable likelihood that engaging in the job duties without accommodation ‘would aggravate the impairment to the extent that it would create a substantially limiting effect.’”
This decision runs afoul of earlier Washington case law including Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 194 (2001) and Pulcino v v. Federal Express Corp., 141 Wn.2d 629, 640 (2000). I suspect this case will be appealed by Chevron to our State Supreme Court. For the full decision, see: http://case.lawmemo.com/wa/johnson.pdf .
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