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In earlier articles we talked about several things that may have an impact on performance such as orientation and having duties and responsibilities explained.
All departments somehow relate to the company mission or goal. As a manager, performance should tie to this goal.
There are scores of different performance review forms to choose from. Whichever form you select, it should include at least the following places for:
- Date of last review
- Date of next review
- The review should cover the entire time frame and not focus on one project or incident
- A clear description of what is expected
- Explain clearly how the performance is going to be measured
- A rating system that is easily understood
- Examples of the good or bad work, citizenship, etc.
The review should strive to be results driven rather than activity driven. For example, when evaluating a sales professional, results should be in the number or dollar amount of sales closed – not the number of calls made.
Base the review on accurate and factual data. Length of service or an employee’s grade may raise the employee’s expectations for a large increase. Length of service or grade, however, does not automatically mean better performance. In fact, length of service and grade may justify higher expectations.
It is important to the employee that you record accurate information on the employee’s performance with mention of specific positive things along with specific things that require more work. If you keep information in the employee folder, this should not be difficult.
Rewards should be made based on clear contribution to performance and not given out as merely a cost of living increase and time with the company.
Avoid overrating a poor performer. The “halo affect” is often used as a motivational tool by some managers. The feeling often is that a higher rating will be an incentive to do better. The employee, however, may get the message that the quality and quantity of his work is acceptable or improving.
Successful performance management and strategic planning have to be combined to make the Company function as your Executive Management envisions it.
Performance needs to focus on results, results and more results – not activities that may consume the day. When management starts setting and measuring employee goals, it is hard for people to misrepresent their true activities. Success will mean the same thing to every employee.
In cases where an employee receives a performance rating higher than deserved, remember that if a higher level of management decides that the employee’s performance is not acceptable, terminating an employee with a good review can be difficult to prove.
On most performance review forms, it is possible for a manager to “ride the fence” and give a higher rating than deserved. If a person is a true leader or manager, the scores should be in one column or another – not a combination of the two (riding the fence). For example, a manager may give a rating of 2.5 which is between poor and acceptable. The manager needs to clarify – is the work poor or acceptable.
It is not possible to include examples of performance reviews in this column. If you would like a sample of review forms, email me your name and mention Review Forms in the subject line and you will receive samples. -
Over the years there has been a lot written about the value of employee performance reviews. Some people feel that performance reviews are a waste of a manager's time, some see a value and others do not know what to think
Employee performance is important to every business and can make the difference in the bottom line. You may have heard a manager complain that he has an employee that he should never hired and described the employee as lazy, stupid or worse.
This type of comment leads me to believe that at least one of several mistakes have been made.
Possible Problem Areas
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Interview - The interview and hiring process was not done properly is one possibility.
If the hiring manager had a job description of the duties the employee is going to perform and created job related questions, the interviews may have been done properly.
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Background – This is an area often over looked by companies. You should know about the person who is going to be working for you.
The back ground check should include calling the employee's former manager and having a criminal record check performed. (Use a professional company – do not do this yourself.)
This is your opportunity to find out the good and bad about an employee from a previous employer. If the references come back good, then the problem may be something else.
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New Hire Orientation – The first day at work is very important and often neglected and seen as unnecessary.
The manager should look at what happened the first day or two the employee was on the job. The first day at work should be more than telling the employee where to park, what time lunch is and where the restrooms are.
Have someone introduce the new employee to co-workers.
The new employee should be told what the procedure is to report problems and frustrations. (Usually this is no more than to talk with the immediate supervisor.)
There should be time given to the history and culture of the company. Explain how the new employee's job fits into the overall operation. Employees want to know that their job is important. If the job is not important, the job would not exist.
Schedules permitting, the highest level company official on site should have lunch with the new employee.
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Training – Even experienced employees in the same business or industry need training on processes and/or procedures you use in your company. All companies do things differently or it could be that the employee was not properly trained.
Training should be done and include safety and hazardous material handling if appropriate for your company.
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Duties and responsibilities explained – This may be the most important subject on the list.
Managers should be trained in the importance of giving clear instructions on how to perform the duties of the job and holding employees accountable if performance is not adequate.
Future articles will deal with performance issues, improvement, consequences, management and accountability.
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Pressure from employer groups and members of Congress, caused the National Labor Relations Board (NLRB) to delay the required posting that tells employees how to join a union and file an unfair labor charge against management. The new date of posting is 4/30.
Stay tuned for future updates on the NLRB and posters.
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Recently I was asked, why do I need personnel policies?
The answer is simple. Having a well-written employee handbook can help you win and avoid lawsuits by educating employees. Explaining things such as harassment and other forms of unacceptable conduct reduces your personal, legal and financial exposure from things involving your employees.
A poorly written or outdated employee handbook may create liability. If for example, you do not have policies or have not explained the policies to employees, you may find that you are being sued for several relatively minor things. If these “minor” things were covered in your policies and a little time was spent explaining policies to employees, you might have avoided legal problems that would cause you time and money.
Recently, I had an employer come to me for policies and she only had one employee. By being pro-active she now has the tools needed to help defend against employee related issues. Plus we had a nice discussion on how to respond to unemployment claims in the future and she knows she can call me in the future for help.
That's why every company should have personnel policies.
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Do you remember when the IRS was advertising that they were your "friend"?
Now the IRS and the Department of Labor (DOL) have teamed up to find companies that previously classified employees as contractors to avoid paying federal employer taxes.
The Voluntary Classification Settlement Program (VCSP) was created to allow companies to reclassify contractors to permanent employees without all the fines.
Under the VCSP, employers are able to pay a reduced tax liability for the misclassification of employees as contractors without all of the penalties.
Talk with your accountant as you will need to meet certain requirements to be eligible for the program.
Expect the DOL and IRS to continue looking for companies that do not have employees.
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If you find yourself in a lawsuit that involves your employees, customers, products, services, warranties or contracts with other companies and/or governmental agencies, read on.
You probably have heard that you need to be careful about what is in your email and other electronic documents.
Plaintiff attorney's have software that can now search through your electronic files, including email. This software looks for anything that you may have a concern about including the above.
For example the software can be set to look for key words such as ASAP, phrases like "should we get a legal opinion" and emails sent in early morning hours (1 a.m.) and other things that may indicate a worry or concern.
Train employees to be sensitive when using "worry" words. -
Besides the regular concerns about too much alcohol and possible unacceptable conduct, technology has opened new doors to possible problems.
It is hard to tell people to surrender their cell phones (with camera) when they enter the party and who knows if someone will bring an actual video camera.
Someone having a great time at your party and after a little alcohol loosening inhibitions may not appreciate seeing the video of themselves at the party on the internet. Are you willing to run the risk of having a video on U-Tube or someone’s Facebook page?
While this by itself may not be considered sexual harassment (unless you or another member of management are involved) it will raise problems.
This may be an embarrassment to numerous people and cost you attorney fees and a drop in morale.
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Before we get into this article, you should understand that I like parties as much as anyone and this article is not a lecture on do or don’t for the holidays. Remember that part of my job as your adviser is to help you realize your exposure to legal action and mitigate possible damages.
As an employer there are several things to consider and being off the clock, off site with alcohol leaves several possible concerns.
- Being off the clock may or may not be an issue and is probably the least of your concerns. There should not be much of a concern about wage and hour issues:
- No discipline resulted or was expected because of attending or not attending
- Non-exempt employees were not assigned
to do any work before, during or after the actual party as long as you did not require
(directly or implied) attendance
- No business was conducted at the party
- Off site and alcohol
should be a concern
People wear clothes they would not wear to work, alcohol loosens inhibitions, and dancing and game playing often lead to hanky-panky.
Anytime alcohol is available at company functions, there can be problems of several types you need to be prepared for. Often alcohol leads to traffic accidents after leaving the party. Ways to reduce employer liability are:
- make sure the bar closes at least one or two hours before the end of the party
- hire a professional bartender from the venue. Professionals are trained when to stop serving intoxicated party goers
- do not allow anyone to pour their own drinks
- do not have “one for the road”
- provide only 1 or 2 drink tickets so employees purchase additional drinks
- have designated drivers, require the use of taxi cabs, or hire a company that takes drinkers home or
- arrange to have a taxi or limo pick party goers up and take them home – at company expense
Another option is If the party is at a hotel, consider making arrangements for employees to spend the night – usually at company expense. (This suggestion has possible negative consequences so give this a lot of thought.)
Your party will not be the last to have party goers try to romance someone and a sleep (or attempted) over may cause more problems than you and your company wants and can afford.You know your employees and it may be a good idea to require a mandatory meeting before the party to hand out and go over company policies on sexual harassment, unacceptable conduct and alcohol consumption.
Also there is the possibility of an employee being injured and the question of “does workers compensation cover the injury”? There may be a defense if the employee had been drinking as alcohol (or using controlled substances) can be considered as the cause of the injury.
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Effective 9/1/2011, Texas employees are permitted to have concealed handguns in their vehicles, even if on the employer's property as long as they have a permit to legally carry the concealed weapon.
Companies should review their policies about weapons on company property.
The FBI has developed a profile on people who are likely to trigger violence at work. This is a good time to consider training on to “Recognize and Deal With Potential Violence in the Workplace”. Everyone thinks it could never happen here – until it does. Remember, when seconds count, the police are only minutes away.
How would it look if an employee get's in a dispute with a co-worker and goes to his car and get's his gun? By this time, training is too late!
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Effective November 14, 2011 the National Labor Relations Board (NLRB) requires all employers, both union and non-union, to have a new poster in place for employees to read. The poster is to be displayed with other required information posters.
In addition, if your company posts information on the company web-site or electronic bulletin board, the new poster is to be there also.
The new poster informs employees:
- of their right to form, organize and join a union
- how to assist unions in signing up new members
- how to file an unfair labor practice charges against their employer
- provides examples of unfair labor practices
- how to contact the NLRB about questions and complaints
The poster explains only the union position and does not mention an employee's right to not join a union or have a union de-certified.
The poster needs to be in English and if 20% or more of your workforce is not fluent in the English language you must provide the poster in their language. (Only posters in English are available at this time.)
No company should feel safe from organizing at this time and the reasons are simple:
- Large employers such as GM, and Boeing, along with groups of employees like teachers and most telephone and utility workers are already organized
- With the loss of jobs over the past several years, the unions have taken a hit in the number of employees covered by contracts
- Less members means less dues coming in to the union coffers
- Unions have been targeting and winning elections at small companies, especially companies that do not have pro-active management and human resources
Another pro-union change is coming by the end of 2011 that will speed up organizing. This will be another problem for employers trying to stay non-union.
The change will permit unions to have recognition elections within 7 days of filing a petition and being certified as a bargaining unit representative by the NLRB. Currently elections are typically held 30+ days after certification.
The problem for employers with the 7 days until election is that most employers typically are not prepared and don't know what to do. It often takes a week or more to get prepared for an anti-union campaign.
When these processes are in place, your ability to communicate with your employees about the realities of unions will be drastically reduced.
Increased union organizing is expected as long as they have a friend in the White House.
Keep in mind that union organizing can be going on without your knowledge. It is not unusual for unions to have signed authorization cards before the company even suspects organizing is going on.
First and second line managers are important in staying non-union. If the working relationship with employees and managers is good, unions have a hard time winning elections.
To remain non-union, you do not have to be the highest paid or provide the best benefits. What is most important is that your management team treat employees with respect and are fair about enforcing company policies.
Employers need to begin preparing for these changes now. Companies should conduct an internal audit to determine weaknesses that could cause employees to consider union representation.
The audit should consider matters as wage and benefits compared to comparable businesses in the area and industry. Communications between management and employees is important in areas such as benefits, performance evaluations and discipline, along with the consistent and fair application of company policies.
Now is a good time to learn how to legally express your views about unions and collective bargaining. Unions can and do promise anything to get members, but you the employer, are limited in what you can say and do.
Be careful to not promise better pay, more holidays or other benefits if you learn of any organizing activities.
Be pro-active and at least learn the basics of staying legal during an organizing drive. When in doubt of what to do, call a certified H.R. adviser or get advice from a law firm that specializes in “Employment and Labor Law”.
(I have the poster so if you want a copy, email me and let me know if you want it on 8.5 X 17 or 8.5 X 11 format to print.)
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As a business owner we periodically make mistakes in dealing with employees, (dealing with employee issues is a learning process). Most of the time our mistakes are not taking corrective action, not doing a performance review or giving someone a better rating on a performance review than they deserve. Sometimes we do not fire someone that we should.
PERFORMANCE
Before we get into correcting most mistakes, we need to look at performance reviews. When a performance review is handled correctly, both the employee and manager know what the objectives are, how progress will be measured and rewarded.
To “go easy” on an employee and not do a fair rating does not help the employee become a better employee and may actually hurt management in the future.
Consider the case where the employee’s immediate manager is overly generous and creates what we call a “halo affect” because the employee is a favorite, friend outside of work or he just does not want to hurt the employee’s feelings.
Everything is subject to change and if things at work do change and what if it is decided to terminate the employee for poor performance. In cases where all of the performance reviews are “acceptable” or “better”, management may have to demonstrate to a jury how the employee’s performance made such a drastic change so quickly. (Don’t laugh, this does happen.)
NOT TAKING ACTION
Not taking corrective action could be as simple as letting someone continuously be late to work. By not taking action to correct this problem or worse, letting the late arrival work late to make up for being late is actually rewarding someone for sleeping in. Consider how other employees, maybe in similar situations or even more difficult situations feel when they make it to work on time.
A good example is when a parent is late because he/she had to drop their child off at school or a baby sitter. Consider the possibility that other employees have the same or similar situations, yet they deal with it and are at work on time.
Other examples could be permitting someone be a gossip/story teller or bully and doing nothing to put a stop to their actions. Each of the above activities listed above are unfair to your other employees.
By allowing this type of action, it is not uncommon for a manager to feel he cannot enforce the policies because he has let things go in the past. Morale of other employees suffers because everyone feels they must be “on their guard” in case the office gossip or bully includes them in their web.
A friend told me that she had a dream job but because of the “office gossip” took up time and distracted her and other employees she quit. My friend’s boss asked why she was leaving and when she explained about the reason, the boss responded by saying, “oh that’s just the way she is – everyone knows that. You shouldn’t let that bother you”.
This was a bad response from the boss who kept the office gossip, but lost several good employees as a result of not taking action.
Remember – people don’t quit companies, they quit bosses.
One of the worst employee mistakes a manager can make is not terminating an employee when it is clear to everyone that the person should be fired.
By not taking action, the boss looks weak and afraid or playing favorites. The perception of playing favorites may be the worst possible reason because people’s minds work in strange and devious ways sometimes.
When any or all of the above situations occur, don’t give up, there is a way to correct these mistakes. The solution is actually simple but hard for some managers and business owners to do.
The solution is:
- Make sure you have policies that are fair and written clearly for employees to understand.
- If you do not have policies in place or they need to be updated and clarified, take the time and have a professional get things in order for you.
- Have enough copies of the policies and/or policy manuals so each employee can have one.
- Have an employee meeting and admit that polices have not always been followed in the past but starting on a specific date in the near future, policies will be followed and enforced.
- Take the time to explain policies and answer questions.
- Have employees complete and sign an acknowledgement page stating they understand that all policies will be followed and enforced starting X date.
- Make sure all employees that did not attend the meeting are given the same information, policies and complete the acknowledgment page.
After the employee meetings, make sure that the signed acknowledgment pages are filed in each employee’s personnel file.
From this point on, it is important that the policies be administered and enforced fairly for everyone.
If management falls back into the habit of not fairly and consistently applying the application of polices, trouble could be close. Not only does morale suffer but the company could be liable for any number of discrimination charges and discrimination law suits almost always include allegations of “harassment”.
A claimant/employee may be able to prove discrimination in the application and enforcement of a policy or wrongful termination. Depending on the harassment allegations, they may or may not have merit. The hard part for management is proving that while maybe they did discriminate, they did not harass anyone. In the minds of some people (maybe jurors), you cannot discriminate without also harassing.
All of this is going to take both management and employee time but it is something that needs to be done. Always remember that while this type of action takes time and money, it will help protect your assets and peace of mind down the road.
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In September 2010, this newsletter had an article about how NV OSHA had not been doing a satisfactory job. Part of the problem was the number of construction related accidents and deaths. Federal OSHA has been looking over the shoulder of NV OSHA and changes are coming for ALL Nevada businesses.
Federal OSHA recently directed the state to increase the number of OSHA inspectors and trainers to find and correct the number of serious violations.
One reason given for the increased staffing is because of the large number of construction related accidents, injuries and deaths in the recent past. Another major factor considered is that NV OSHA was only finding 22% of it's inspections to be serious, willful or repeat violations. The average for fed OSHA was 79%.
The ratio of inspectors to construction workers in the past was 3916 workers per inspector. With a decline in construction and the increase in staffing, the ratio is expected to be one inspector for 1,216 construction employees by the end of 2011.
While construction will take the initial brunt of the inspections, expect OSHA inspectors to expand their visits to all companies after they are confident they have construction violations under control.
At a minimum, you should review your facility exit diagram, make sure exits and electrical panels are not blocked and if you have over 25 employees that you have a safety committee.
Review your safety manual to make sure it is current and a management person has been designated to be in charge of safety. Employees need to be properly trained in the use and maintenance of personal protective equipment.
OSHA is serious about safety and remember, it's no longer “catch me if you can”. All companies need to be pro-active or it is going to affect your bottom line and possibly you as an individual.
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O.S.H.A. like other federal agencies has changed the way it does business since the Obama administration came into office.
What used to be “catch me if you can” with employers is now a “Right to Know” (RTK). This new method is designed to keep employees better informed and is used by several federal agencies so it is not just O.S.H.A. that has the RTK philosophy.
The O.S.H.A. RTK requires employers to keep all employees informed of hazards and the specific chemicals they are exposed to at work. Employees also need to know how to prevent hazardous chemicals (HC) that may cause them health problems or death. The RTK includes all hazards including flammable, potentially explosive and other health hazards that include both immediate and long term effects.
Any time a company receives hazardous material, the containers are required to have what is called a Material Safety Data Sheets (MSDS). The information on the MSDS needs to be communicated to all employees and the employees must be trained how to properly handle the hazardous material.
Employers are required to have a written plan which describes how their safety plan will be implemented in each facility if there is any possible exposure to HC. The only exceptions are laboratories and operations where the material is in sealed containers.
The rationale for the RTK is that employees will be better able to participate in safety programs effectively when they understand the hazards and what steps to take to protect themselves.
VIOLATIONS
Penalties for violations depend on the severity and previous record of the company. If O.S.H.A. feels that criminal or willful violations are involved, punishment can be by a fine of not more than $250,000 for an individual and $500,00 for the company, or by imprisonment for not more than 6 months nor less than 30 days, OR both.
O.S.H.A. is serious about an employee's RTK.
Let me know what questions you have.RB
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In earlier newsletters, we discussed the training of a new manager and the emphasis was on the individual.
It is important that the company understand the importance of developing individuals into managers and leaders is also the company's responsibility. It is not unusual for an individual to be promoted to a manager's position and not be given any management development or training.
When this occurs, expect the new manager to struggle and fail, especially if promoted from within. In companies that do not have a training department, management should encourage the new manager to take classes at a local college or arrange for management development with an experienced human resource professional or trainer.
For a company to say they cannot afford to train a manager or that it does not have time to train a manager is very shortsighted. A company will spend hours or days training a new employee how to function in the job he was hired for. A new manager should not be treated any differently and should be provided adequate training and the tools to perform his job.
At times an experienced manager may resist additional training that could overcome a number of issues because they do not want to admit a weakness. The additional training may be required because of a variety of complaints that has arisen against the manager, such as an employee lawsuit, harassment charges or union organizing attempts.
When a company realizes that a manager needs more development, a possible solution would be offering or in some cases requiring a manager to take specific classes at a local college or university. In situations where the manager is considered to be a bully, lacks self-confidence or any other variety of personality flaws, it may be a good idea to encourage the manager to participate in an employee assistance program (EAP).
In small companies that do not have an employee assistance program, check with your benefits broker that provides health benefits. You may find that such a benefit is available at little or no cost by restructuring some of your health plans.*
Communication and training of managers should also include at least an understanding of different business areas. For example:
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company policy manual
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wage and hour laws
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equal employment opportunity laws
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workplace safety
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unemployment insurance costs and benefits
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workers compensation costs and benefits
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employee relations
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employee turn-over
Often top management of smaller companies believe that everyone knows and understands the business model and how the company makes money. While as a broad statement this may appear true, managers should understand not only the process of producing a product or delivering a service but other aspects of the business operations such as:
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elements of the supply chain
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markets served
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s.w.o.t. **
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economic cycles
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customer growth
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how to analyze and interpret financial statements
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company code of ethics
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mission statement (if the company has such documents)
(more in future newsletters . . . )
* Your contract with the health provider has an expiration date that is often the end of a calendar year. The expiration date simply means that the insurance company cannot raise your rates until after the expiration date. You can almost always cancel your policy with 30 days written notice. Check with your broker - you may be able to save money and/or improve benefits.
** Strength, Weakness, Opportunity, Threat (S.W.O.T.)
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The Wage and Hour division of the U.S. Department of Labor has announced that as a public service, there is a new app for a iPhone on iTunes. The app is called “DOL–Timesheet” and is free. This app comes in both English and Spanish and while initially it is only for the iPhone, iPod and iPad, expect it to also be available for your Blackberry and Droid smart phones soon.
This new DOL app makes it easy for your employees to track the days and hours they work along with their hourly rate of pay.
As described by the Department of Labor:
“This is the time sheet to record the hours that you work and calculate the amount you may be owed by your employer. It also includes overtime pay calculations at the rate of 1 ½ times the regular rate of pay for all hours you work over 40 in a standard work week.
This app does not handle tips, commissions, bonuses, deductions, holiday pay shift differential or other non-standard methods of pay.”
This new application makes it easy for the employee to send information in an e-mail and has a prominent “contact us” button with links and phone number directly to the DOL Wage and Hour Division.
With this new application also comes encouragement from the Department of Labor for employees to track the amount of money they feel they have earned in a pay period. The employee can enter his hourly rate, and name of employer. Oh yeah, it has room to store information on one or more companies.
For anyone not having a smart phone, the DOL also has calendars in English and Spanish that can be downloaded for manual entries.
It will be interesting to see if the Department of Labor has a significant increase in wage and hour investigations as a result of this new smart phone app.
You might want to double check your policies on time keeping to see if they need to be fine tuned.
Check out the new app http://itunes.apple.com/us/app/dol-timesheet/id433638193?mt=8
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Q. Knowing that most of the information to the following question can be found in the Fair Labor Standards Act, can you answer this question?
We have an employee that was negligentand broke an expensive tool. His rate of pay is $12.50 an hour, he averages 45 hours a week.
Can we deduct the replacement cost from his pay? If yes, can we deduct it all at once?
Since this newsletter goes to several states, use the federal minimum wage rate of $7.25 per hour to figure your answer.
A. Several of you questioned my choice of the Fair Labor Standards Act as the law that would cover collecting money from employees. Hopefully by the end of this article you will understand my logic - or lack of.
Nevada has wage and hour laws that are modeled after the FLSA. Texas, Nevada and the federal Wage and Hour Division calculate the amount to be paid the employee the same. (Texas does not have an overtime provision.)
Using $7.25 as the minimum wage (Nevada – this rate applies if you offer state approved health benefits) the calculations are:
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Multiply the minimum wage of $7.25 by 40 hours to get $290.00.
This represents the minimum gross wages that the employee must be paid for the week. Any wages earned as over time cannot be used to offset the amount the employee owes for the lost, damaged or destroyed property or equipment.
There are a couple of things the company needs to do to protect itself.
It is always good to have language in your policy manual that lost, damaged or destroyed equipment and property may be withheld from the employee’s pay. The employee must agree in writing to have the deductions made.
However, in both Texas and Nevada, the policy alone is not enough. The employee must sign an authorization for the money to be deducted from future earnings. Only one authorization is necessary per incident even though the deductions may cover several pay periods.
The alternative is to take the employee to court to get a court order OR terminate the employee.
ALSO – the above only applies to non-exempt employees. Deductions from exempt employees are not permitted.
Operations in other states need to get your legal advice on what the law permits in your state.
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Recently a client had the following question about using medical marijuana at work.
“Our employees are required to drive company vehicles. One employee has been ill for several years and has just started using medical marijuana. The employee says that since it is prescribed by a doctor, he is allowed to drive as part of his job.”
Is this true?
"NO”
A prescription or note from the doctor is not enough. Nevada has passed legislation making medical marijuana legal but there are restrictions.
While I am not an attorney, Nevada law is pretty clear that driving or using other vehicles is not allowed while under the influence of medical marijuana. You can read the Nevada law that applies to this which starts with - NRS 453A NV Medical Marijuana.
To legally use medical marijuana in Nevada, the individual must be issued a state registry identification card and is restricted in the amount of the drug.
In Nevada medical marijuana is not permission to drive or have a positive drug test. Keep in mind that even more common medications prescribed by doctors have warnings about driving and/or using other equipment while taking the medication. Marijuana law goes beyond a warning.
In addition to operating all vehicles including a jet ski, boats or airplanes being restricted, medical marijuana does not exempt an employee from taking and passing other employer tests.
The person using the marijuana is also not exempt from company polices about using, being under the influence, possession of drugs or other controlled substances at work. If your company is a Drug Free Work Place, you might want to review your policy on substance abuse with your employees.
Keep in mind that if an employee tests positive for marijuana and you have a policy that prohibits the use of drugs, you need to follow company policy and discharge the employee.
To not discharge in this case could set a precedent and make your Drug Free Workplace Policy difficult to enforce in the future.
On the other hand, if you do not have a Drug Free Work Place policy and the employee is not going to be using any equipment other than maybe a computer, you do not have to discharge the employee. If there is use of any dangerous equipment, you are putting you and your company in possible financial and legal jeopardy if the employee is injured.
Federal law and some states have laws that provide for a leave of absence to get medical treatment to get off the drugs. This would not do any good for people who use medical marijuana since their reason for using the drug is usually for pain relief.
For quick summaries of how Nevada feels on this subject, visit these sites for information you should know about as an employer in Nevada.
http://health.nv.gov/PDFs/MMP/ImportantNotice.pdf and http://health.nv.gov/PDFs/MMP/WarningNotice.pdf
Other states have also legalized the use of marijuana for medical reasons but Federal law still makes marijuana illegal.
If you have a concern about how the use of medical marijuana affects your company in states other than Nevada, you should seek legal advice as the laws vary by state. In addition, how state and federal laws conflict is a question that may not be answered for some time.
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There are a lot of things going on in the world that can be stopped but Cupid is not one. Romance at work – it is going to happen.
Over 47% of employees have been involved in work place romance and an additional 19% would like to be if the opportunity arose.
Considering the amount of time people spend on the job, this should not be a surprise to anyone. Romance at work will never be eliminated but can be kept somewhat controlled.
A concern to employers, especially small business owners, is the negative impact it may have on the employees who are not involved in the affair. This negative impact could affect morale, productivity and ethics.
When romance is between a supervisor and a direct employee, other employees may feel that the supervisor is playing favorites in handing out assignments, giving performance reviews, wage increases or any number of things, real or imagined.
Having a policy that prohibits supervisors from having relationships with subordinates is not unusual. When this occurs, an option is for the employee or supervisor to transfer or leave the company.
Obviously not all work romances lead to claims of sexual harassment but management needs to be very vigilant of relationships between a supervisor and a direct report. Management is often held to have knowledge of things that it may or may not know about. If one person becomes upset with the other, there is often the opportunity for hard feelings and claims of harassment – justified or not.
This is especially true as it may appear to some that management is condoning harassment even though management may not know of the breakup.
State and federal laws prevent harassment and while things may be smooth at the beginning of the romance and everything is consensual, it doesn’t always continue so smoothly.
A study by the Society of Human Resources Management (S.H.R.M.) found that 24% of office romances lead to a sexual harassment claim. This is often because one partner wants nothing to do with the ex-lover and one partner wants to make up.
Some companies have a Non-Fraternization Policy, a Conflict of Interest Policy or an Informed Consent Policy.
The Informed Consent Policy requires both parties to sign an acknowledgement that their activities are consensual. Standard language in such a policy is that both parties agree that they know and understand the company’s sexual harassment policy and agree to not exhibit affection in the workplace. Such agreements are often called love contracts.
Any employer that has a Non-Fraternization, Conflict of Interest or Informed Consent policy needs to understand that while these sound good, it does not relieve the employer of the obligation to investigate all claims of sexual harassment an employee may raise.
These policies may make employees more aware of their responsibilities, but they do not have much if any support in the legal system. It is still the employer’s obligation to investigate, possibly administer discipline and enforce the policy.*
If as a small business owner you want a policy on romance, it should demand written disclosure to management and require the romantic parties to review and sign acknowledgement of understanding the sexual harassment and acceptable conduct policies. If the employees do not want the rest of the workforce to know about their relationship, management has an obligation to keep this confidential.
Now that you have an idea of how to handle romance at work, it is time to make sure your policies on Sexual Harassment and Acceptable Conduct are in place and have training for your employees and management. Don’t forget to have everyone sign an acknowledgment for their employee file that they have had the training.
Consider having a special acknowledgement form for supervisors and managers that they understand that they have a greater responsibility than the average employee. Along with the greater responsibility to not be involved in sexual harassment is the acknowledgement that if a supervisor has any information or idea that sexual harassment is happening, they must report this immediately.
In California, companies with 50 or more employees are required to make sure all supervisors are trained every two years in what sexual harassment is, how to recognize and deal with sexual harassment.
While this is not law in Nevada yet, such training could save your company hundreds of thousands of dollars in fines and attorney fees, not to mention your sleepless nights worrying about how this will end. (Have a trained professional conduct the training – this helps minimize your legal and financial exposure.)
Consider this – most sexual harassment claims are filed for millions of dollars and settled for hundreds of thousands of dollars.
Romance will always be around, it’s the possible sexual harassment charges that companies of all sizes need to be concerned with.
* This is a touchy situation that may have legal ramifications. If you are not comfortable with what or how to do something, talk with your Human Resources advisor or get help from an attorney that specializes in employment and labor matters.
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OSHA requires that businesses with more than 10 employees post their form 300A from February 1 to April 30.
This is a listing of work related injuries, illness and fatalities in your location(s) during the previous year. Even if there was nothing to report, a zero goes in the "total" space. The form must be posted along with other announcements.
An executive must sign the form to certify that the information is correct. It is important to comply with the simple posting requirements to show your work force that Safety is Important in your company.
The OSHA Form 300A can be down loaded with instructions on completing the form - it's simple.
http://www.osha.gov/recordkeeping/new-osha300form1-1-04.pdf
A few industries are exempt and you can see if your type company is exempt from the posting by going to - http://www.osha.gov/recordkeeping/ppt1/RK1exempttable.html
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Employers often cope with poor performing employees or worse, an employee with a bad attitude. It is not uncommon for an employer to “live” with a problem when they do not have to. If an employee has a problem performing the job satisfactorily, the problem needs to be documented and action taken. Sometimes it is a simple matter of training or retraining an employee.
Granted, everyone has a bad day periodically, but most employees want to go to work and do a good job. A constant poor attitude, however, is like a cancer that can affect other employee’s productivity and attitudes. It is important that employers be aware of a constant poor attitude and not let one bad apple spoil the rest.
This can often be corrected with a counseling session with the employee. When counseling doesn’t correct the problem, performance and/or conduct should be documented and eventually the employee may need to be terminated.
Even a verbal counseling should be reduced to writing and the employee should sign and receive a copy. This will eliminate confusion about what was discussed later.
After collecting several written pieces of documentation little or no improvement, it may be time to terminate. The actual termination should not take more than 5 or 10 minutes. Remember, this is not a debate – you have already given the employee several opportunities to correct the problem. When you gave the written discipline was the time for discussion both on management's part and the employee.
Termination should not come as a surprise based on earlier conversations and written discipline. Termination however should immediately follow a triggering incident and not when it is convenient to management.
Explain that you have tried working with the employee, things have not improved and he is terminated. It is important to have the final pay check ready when you discharge the employee and remember to get all company property such as keys, cell phone, ID badge, etc.
While talking with the employee or immediately after, have your IT people change passwords and forward any incoming email to the employee’s supervisor. This prevents the employee from accessing email or any company documents.
This is an important part of H.R. - if you have questions about anything, let's talk or call a labor and employment attorney.
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Last month we talked about the need to start progressive discipline to correct employee conduct or performance problems.
This month we continue with the process to correct the problem or have the employee leave the company.
If after the verbal discussion, the problem is not resolved, management must either live with the situation or move to the next step of progressive discipline.
Most company polices require at least one written warning letter (for conduct) or a performance reminder (to improve performance) before terminating the employee.
When moving to step 2 of progressive discipline, the same procedure is used as in step 1 with a frank and open discussion. However at this point, the employee is expected to be able to explain why the problem was not corrected. If the employee cannot logically explain why little or no improvement has occurred, the next step of discipline may be necessary.
When the written discipline is prepared, it should be after discussing the lack of improvement with the employee. It is important that management does not prepare the second letter before having the second discussion.
There are two reasons for not preparing the discipline until after the discussion.
- Preparing the letter before the meeting shows that management had it’s mind made up before the second discussion.
- During the discussion, information may come out that should be used in the written discipline.
The second letter should include specifically what is expected of the employee and a reasonable time for improvement.
With the second written discipline, you may want to include a short suspension without pay for non-exempt employees (there are potential problems suspending an exempt employee).
If there is not improvement after the second written discipline, you may want to terminate but let’s discuss before moving forward.
Questions – as always, let me know.
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OSHA like other branches of the federal government, has become more pro-active in addressing employer violations of the law. OSHA is looking for more than compliance, there is increased emphasis on prevention. Now when there is a work related fatality, the name of the company is posted at http://osha.gov/dep/fatcat/dep_fatcat.html.
It's not a secret that for some time, Nevada OSHA has not been conducting business as Federal OSHA would have liked.
Recently the Federal OSHA opened an office in Las Vegas and as a result, Nevada employers need to be more alert than ever for the possibility of OSHA inspections. Federal OSHA is using the "general duty" clause in situations where no specific standard is applicable.
There are a number of things a company can do to limit exposure to OSHA:
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Nevada OSHA requires employers to provide employees with a brochure titled, "Nevada Workplace Safety". Copies are available at the local NV OSHA offices or at http://www.4safenv.state.nv.us/ and go to "Publications" on the left side. You will be able to download the brochure in English and Spanish.
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Make sure your OSHA form 300 is accurate and current.
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Do your own safety audit of your facility. OSHA has a list of priorities they look for based on industry type. You should get a copy of their check list (by sic). Some things are very simple such as making sure exits and electrical panels are not blocked, you have a diagram posted showing building exits, and safety posters are properly displayed.
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Become familiar with ergonomics terms and injuries. OSHA may add a column to the 300 form specifically for musculoskeletal disorders. OSHA is using the General Duty clause as the basis of issuing ergonomic citations.
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If you have had OSHA audits and problems in the past, check your records for at least the last 5 years. If you find the same or similar problems exist now that were found within 5 years, OSHA may cite you as a repeat offender. (This is where big fines often start.)
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It is not unusual for employees, vendors or visitors to alert OSHA or other agencies to violations, even if employees are working off site. In the past if you had safety issues and corrected the problems, take credit for improved safety by letting employees know that you care about their safety.
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Change your company culture and develop a wellness program. This requires more than just a written plan as management and employee participation are necessary to make a wellness program work.
When companies undertake wellness programs that include programs to stop smoking and weight loss, consider using the same employees in an effort to develop and implement safety objectives.
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Most companies have a policy that provides for progressive discipline as a way to improve an employee’s performance or behavior.
Sometimes companies feel that they can just fire a person if they don’t produce or seem to have a bad or annoying habit – and the company can terminate. What is often forgotten is that there were good qualities or other positive reasons the person was hired originally.
When management fires someone, there are potential risks of lawsuits, charges filed with any number of governmental agencies or even possible violence. When there is good reason to terminate someone, if not done properly, often the cost of proving the company’s action was reasonable can be a long and expensive process.
Progressive discipline does not always lead to termination. If management truly uses progressive discipline as a tool to correct a problem, both the employee and employer can win.
Using progressive discipline correctly, involves the employee and manager having an open and frank discussion about the problem as management sees it. At times, just a discussion will resolve the problem when the employee understands the concern of his manager. In some cases, the employee was not aware of the problem or concern until it is discussed.
The employee must make positive changes that management points out to the employee as necessary to resolve the issue. On the other hand, management may determine that the employee needs additional training in an aspect of the job. After the training, the employee is expected to have learned the proper way to perform the job.
Such an open and frank discussion is a verbal counseling. Even though there may be no additional action necessary, management should make notes, summarize the discussion in a written document and have the employee read and sign acknowledging that the discussion took place. A copy of the document should be given to the employee.
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Most small companies start with a valuable skill or idea and the person with the idea knows exactly what needs to be done to get the idea to work. The business often starts with the help of no one except an accountant and maybe family members.
As the company grows, employees are added and the various state, federal and local laws require more and more time of the business owner. The first things needed are workers compensation insurance, a method to pay employees and a system to maintain employee records. This means more employee records, different job titles and rates of pay as the business grows.
As in any business, employees want time off. To retain employees and compete with other employers, the company starts to offer paid days off and eventually paid vacation. The business owner now has to decide what employees get paid time off and when. Do all employees get the same paid time off benefit or just full time employees? Do new hires get the same pay and benefits as employees who have been with the company longer?
An individual inexperienced in running a business often makes the following mistakes:
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Failure to have employee policies and reduce them to writing. A policy manual becomes an essential part of company documentation. A policy manual adds consistency to a company’s operation and eliminates the appearance of favoritism. A properly written policy manual can save the company money by setting out practices, and is a solid defense when issues come up with the labor commissioner, unemployment departments or other government agencies.
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Lack of training/skill in interviewing, hiring and recordkeeping. Various laws now prohibit interviewers from asking questions that may discriminate against an individual or group. In addition to phrasing questions correctly, interviewers also need to be trained in what to look for by asking behavioral questions during the interview.
Employers often will not prepare for an interview and if the first candidate comes in with a good story line and the chemistry is right, he gets hired. Only later does the employer find out the new hire does not know how to do the job, does not have a good work record, etc.
Anytime a company interviews someone for a position, proper records need to be kept.
Unsuccessful candidates periodically involve various government agencies or community organizations in questioning hiring decisions.
Employers often fail to reduce employee conduct issues to writing. A good rule of thumb to remember when dealing with various governmental agencies is that if you don’t have it in writing (and signed), it didn’t happen.
Failure to understand employment at will. “Employment at Will” is an easy concept. The employer can terminate an employee for any or no reason at any time. Under the same concept, an employee can quit at any time for any or no reason with no notice. (The proper H.R. policy can get you two weeks written notice!)
Often employers put “Employment at Will” in danger by using a probationary period. Under “Employment at Will”, no probationary period should be used. (More on this later, if requested.)
While the employer does not need to have any documentation to terminate under “Employment at Will”, the EEOC and other governmental agencies will want to know if you terminated for discriminatory reasons. Having documentation in writing may be used as a defense in legal action and may also prevent the former employee from collecting unemployment benefits. (Utilizing “Employment at Will” is great as long as you are terminating a white male who hasn’t reached age 40 yet. The rest of the world is a protected class so you need documentation.)
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Conducting an interview is nothing more than having a conversation with a person about a job. Essentially as long as you keep the discussion about the job and how the applicant can do the job, has done the job in the past, you shouldn’t have any problems. There are several reasons for interviewing from the application as mentioned above.
Interviewing from a standard application tends to help you focus on the job and the applicant. If you ask only job related questions, you are more likely to avoid allegations of unfairness and discrimination. Congress has passed so many laws in an attempt to protect people from discrimination and harassment, you have to be very careful sometimes how your phrase your question. For example, you cannot ask if the applicant has a car. The rationale for not asking about a car is that poor or disadvantaged people may not be able to afford a car but can still do a job. You can ask if the applicant has reliable transportation.
Applicants should not be hired because their chemistry clicks with that of the interviewer if they are not the strongest candidate for the job. Also, you should interview several applicants for the job and not just hire the first applicant so you can get on with your normal job. Chemistry is great – but job skills and work records need to be considered first. It does little good to hire a person with a great personality if they cannot do the job or will leave after a couple of months.
Before you start interviewing, you should review the information about the job and what traits you are looking for when you fill the position. Having the questions prepared before starting the interview allows you to ask the same questions of all candidates. This consistency helps you arrive at a more fair evaluation of all candidates.
Questions about an applicant’s family and personal life should be avoided – they can get you into a lot of trouble later.
After you interview the applicant, you can make notes on a separate sheet of paper but again, make sure your notes are about only things that are job related.
Unless you have the authority to hire an employee, it is best to tell the applicant that you will review the application and your notes. If a job offer is going to be made, someone will call them. Explain that if a job offer is not going to be made, no one will call.
As always, if you have questions about the above, email me at roger@appliedhumanresources.com
Have A Great Day!
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The major functions of human resources have been around for a long time.
Find people to work for your company
- Keep the employee records
- Make sure employees are classified correctly
- Paid on time
- Process the termination paperwork
- Get the final check.
It’s what is between the beginning (find the people) and the ending (getting the final paycheck) that has changed.
Some people still believe that human resources is just to keep records and organize the company picnic. These individuals do not understand how far H.R. has progressed. This collection of articles on human resources is intended for the person who has inherited the H. R. function and may not fully understand all that needs to be done – and there is a lot.
Some of the subjects to be covered in this section of the BLOG and newsletter include 1) things to keep your company under the radar of all the state, federal and local laws plus executive orders. 2) how to help your company reduce employee cost and improve employee performance.
Before we get into human resources, I have some suggestions that will save you a lot of time, money and possible embarrassment when doing your assigned duties.
1) Join the national organization “Society of Human Resources Management” (SHRM). The small annual cost of joining SHRM ($160 a year) is worth several times the amount of information and resources available to you.
2) If there is a local SHRM chapter and your budget permits, join the local chapter. If you cannot join the local chapter. attend the monthly meetings.
3) Do not be afraid to use an experienced “Labor & Employment” attorney. I cannot stress enough that you want an experienced “Labor & Employment” attorney. You would not use a patient attorney to help you buy real estate – do not use an attorney that is inexperienced in Labor & Employment.
4) Most law firms conduct training for clients several times a year and the training is usually free. Large law firms put out a newsletter plus there are independent newsletters available for little or no cost. There is nothing wrong with getting newsletters from several firms – you need to stay current. If your company has a working relationship with a law firm, call and ask about a newsletter. ALSO, SHRM puts out legal updates that are usually timely.
5) Working with an experienced H. R. consultant is less expensive than using a Employment & Labor attorney. but be careful. Large national consulting firms normally do a good job screening the people they hire as consultants. Independent human resource consultants are like everything else - we come in all shapes, sizes and varied experience backgrounds.
If you use an independent consultant, make sure that he/she has the Senior Professional Human Resources certification and can provide verifible references from other businesses.
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