SPIRIT Almost Grounded by Lack of Common Sense and Compassion

You catch more flies with honey than you do with vinegar”     – Grandma-ism

I heard this phrase most of my life from either my mother or my grandmother and as a kid I wondered what exactly it meant. But as an adult whose dedicated my life to bringing out the best in people so organizations can succeed, I have found that this bit of sage advice can go a long way in building the kind of culture any organization needs to succeed.

Case in point: Last week Spirit Airlines found itself in a firestorm of controversy based on a company policy that no one, including the CEO, was willing to apply with any common sense. Spirit Airlines is a low-cost airlines that prides itself on offering dirt cheap air fares with purchasable options based on each passenger’s preferences, such as a carry-on bag fee, etc. As part of their low cost strategy they also have a NO REFUND policy. So if you purchase a ticket on Spirit and later need a refund – forget it. In this particular case a Vietnam Vet, Jerry Meekens, purchased a $197 airline ticket to go see his daughter in New Jersey. Shortly after purchasing the ticket he was diagnosed with terminable cancer and the doctor advised him that he was too far along to risk traveling. Jerry then contacted Spirit Airlines seeking a refund to which he was flatly denied citing “company policy”. Not only did the customer service agent deny his request, as the publicity grew Spirit CEO Ben Baldanza also publicly denied his request stubbornly stating they treat all passengers the same way and their policy is a way to help keep costs down for all passengers.

3 Tips to Building a Culture of Trust and Respect

• Treat people the way you would want to be treated – all people, whether they are your employees or your customers hate it when you hide behind a policy and won’t give consideration to extenuating circumstances. In every situation that arises, ask yourself – “How would I want to be treated in this situation?” and then let the answer be your guide.

• Be Consistent – Remember, being consistent is NOT treating everyone the same – it is treating people in similar situations similarly. By viewing Jerry like everyone else who might arbitrarily want a refund, Spirit lost it’s compassion and ability to enforce policies based on the original intent of the policy. Like most organizations who get too narrowly focused, Spirit assumed that by making an exception for Jerry would mean their policy was no longer enforceable for anybody – but that’s dead wrong. Consistency is simple – the next passenger that books a flight and then finds they are dying and too sick to fly gets a refund – all others who are not in a similar life or death situation do not.

• Use common sense – Every organization needs policies and guidelines to guide decision making, but those policies were originally established with an intent in mind – train your employees (at all levels) what the intent behind your policies are and then trust them to use good judgment when enforcing them.If they make a mistake it can be fixed, but the good will and trust will go along way to building the culture you need to succeed.

By the way, after a week of intense pressure, especially from veterans groups leveraging social media sites, Mr. Baldanza grew a heart and agreed to not only personally refund Jerry his fare, he also agreed to donate $5,000 to the Wounded Warrior Project.

So, What Does Anthony Weiner, Leadership and Change Management Have in Common? T R U S T

This afternoon Anthony Weiner finally admitted that he did indeed send questionable pictures of himself, in various modes of undress, to a woman in Seattle. In admitting his folly, the congressman stated that he would not resign because he did not feel the scandal would affect his work as a lawmaker.

What???!! Is he really serious? I know he is not really that naive, is he? If you’ve ever read John C. Maxwell’s The 21 Irrefutable Laws of Leadership you know about the Law of Solid Ground – it’s called TRUST! Leaders can make mistakes – everyone does, but leaders who purposefully or repeatedly violate trust with people cannot continue to influence them; and without the ability to influence a leader cannot lead.

According to Maxwell, TRUST is the most important thing a leader has – the foundation of leadership. So, how does a respected Congressman repeatedly claim that his Twitter account was hacked by someone who sent lewd pictures to make him look bad and then admit is was all lies and expect to continue leading? For over a week Weiner repeatedly changed his story searching for solid ground but failing to realize that only in trust do you find solid ground.

But merely being truthful is not enough to build and sustain trust. Consider the following story; a leader of a small manufacturing organization had several change initiatives being implemented across the organization, but, as usual, he was extremely busy and traveling a lot. To say the least things were hectic.And in that hectic-ness he made 3 seemingly innocent unilateral decisions. Now keep in mind that these were relatively small decisions, but decisions that impacted a lot of people in the organization. The sad thing was that all 3 decisions were the right decisions to make.  So, what was his mistake? It was the way in which he made those decisions.

Ordinarily this leader would rally the troops, establish the vision, allow time for questions and then give his leadership team time to exert their influence over others. Then, when the timing was right, he would pull the trigger and make a general announcement to the organization about the changes providing reassurance and encouraging employees to be part of the new vision. But he skipped those vital steps and went directly to the decision making – ALONE.

So, what do you think the result was? MISTRUST.  The leader violated his employees’ trust and it showed. People know when you make a mistake and they hang out to see if you’re going to admit it. Leaders who do often can regain trust. In this case, this story has a happy ending. This leader had enough leadership capital that he was able to turn the situation around by publicly apologizing to his employees and asking for their forgiveness.

Now this story isn’t only about trust, it’s also about change management. To effectively manage change – the people side of change- leaders have to first have credibility. Then they have to assess the organization’s readiness for change and then patiently work to build awareness, desire, knowledge, and ability within their ranks. This busy leader did none of those and the change initiative experienced a false start resulting in a lot of lost time and results. Lastly, leaders must reinforce and reward employees for implementing the change – otherwise it won’t stick.

And that’s not the only kind of change that trust affects – trust is like a bank account. Each time a leader makes good decisions they earn deposits into their leadership account. But when they make bad decisions, it results in a withdrawal. And if a leader has more out-go than income, they eventually overdraw the account, losing their leadership clout – in other words, they’re out of the leadership business.

Leaders that make good decisions and have a history of making good decisions continue to rack up deposits in their account so even if they make a huge blunder, it usually won’t result in an overdraft. The question is – has Anthony Weiner built up enough deposits in his leadership account or will he be bankrupt as a leader?

Exploiting “Digital Recruiting” to land a job

In the past year, 50-million jobs were filled in the United States  –  almost all without a job posting!

The jobs weren’t posted because of a change in the way employers hunt for candidates.  Today, employers can’t deal with the avalanche of resumes they would get if they posted the jobs.  So they are relying on a brand new digital armory to find the handful of “most qualified” recruits that they want to interview.

Employers have gone digital!

This move makes things easier for job hunters!  Any candidate with the right digital skills has more power and more opportunity to find and land a job than they have ever had before.

In David’s new book, co-author with Jay Levinson, called “Guerrilla Marketing for Job-Hunters 3.0”, he lays out the brand new tools and tactics to make you light up on the digital radar!

Sub-titled: “How to Stand Out from the Crowd and Tap into the Hidden Job Market Using Social Media and 999 other Tactics Today”, the new book goes beyond  ‘where to look’ for a job, to include ‘how to be found in the digital job marketplace’.  It took a guerilla marketer to spot this trend, and few job candidates are aware of it yet.  If you can grasp these simple digital techniques now, you will have a jump on all those who are still sending out resumes.  While resumes are still a critical element, job hunters also need digital strategies.

The new book tells how to use different social media at the same time, so job hunters can leverage online resources like ZoomInfo, LinkedIn, and Facebook, and take advantage of “the secret lives of top corporate recruiters”.  Job-hunters are advised on little-known search-engine optimization tricks used by those looking for employees.

At the same time, job hunters are coached on how to use the new tools to build online profiles that present their value to searchers.  Case stories are used to illustrate how to interview, and how to demonstrate this ability during the interview.

Drive to Own The “Means of Employment”

Guerilla Marketing for Job Hunters 3.0 is riding a great historical trend: the compelling need everyone feels for control of their fate.  People are taking control of their lives, and this means ownership of the means of employment.  We are in a renaissance of self-direction.  We all want to direct our own lives in an uncertain world, so we can expand our opportunities and our abilities.  Partly this comes from the current economic uncertainty; partly it reflects the history of the past century and more, which has been a striving towards the realization that people’s opinions matter!  We have always moved in the direction of greater freedom…because that is human nature.  We want to control our destinies.

“Taking control of your employment is especially important in today’s demographic because so many people are looking for new kinds of work  -  work that has meaning for them.  Our population is getting older  –  for the first time, there will be more people over 65 than under 5  — and older people are more reflective: they want to know they are doing something meaningful.  Our book helps provide a catalyst for their productivity.

In a digital age, you master the digital stage.

As the first multi-media book for job hunters, Guerilla Marketing for Job Hunters 3.0 has:

• “Quick Response” Tag technology from Microsoft to deliver exclusive content
• Digital tools to perform precession job searches and online placements of candidate values
• Hot links for fast access to online tools
• Tweets and other social media tools

About the “Guerilla” Series of Books

The “Guerilla” series has sold more than 22-million books in the past decade, providing effective advice to business owners and job seekers.  The series was launched with Guerilla Marketing, a technique maximizing innovation and creativity.

Are You Using Independent Contractors in Your Business? Would the IRS Consider them Independent Contractors?

In these tough economic times, everyone is looking for creative ways to save money and if you’re a business leader one solution you may be considering is to reclassify current employees as independent contractors; or you may be considering hiring independent contractors instead of adding full time employees to your headcount. But classifying employees as independent contractors has never been riskier especially considering the DOL has partnered with the American Bar Association (ABA) to refer complainants to local attorney’s in your area for FLSA violations. So, what’s at stake and how do you protect yourself?

If the IRS, Department of Labor or a state agency determines that you’ve misclassified workers, the mistake can lead to tremendous liability. In addition to overtime, your former independent contractors may seek employee status to collect workers’ comp, health & welfare benefits, unemployment benefits or damages in a civil rights lawsuit. Consider the fact that AT&T, the telecommunications giant, is currently embroiled in a $1 BILLION wage & hour lawsuit for misclassifying their employees.

One of the biggest questions in determining if a worker is an employee or a contractor lies in how much control you, as the employer, have over the worker’s schedule, materials, behavior, risk level, etc. Job titles or labels don’t matter. If your worker looks like an employee and is paid like an employee, they’re probably an employee.

The last time the IRS studied misclassification, in 1984, it estimated that about 15% of employers nationally misclassified a total of 3.4 million employees as independent contractors. A 2005 government report said 10.3 million American workers—or about 7.4% of the workforce—were classified as independent contractors, and of those the IRS estimates that 80% are classified incorrectly.

To keep you and your company compliant you need to:

• Follow the IRS guidelines to avoid unwanted scrutiny
• Know if your state has more stringent definitions (Tennessee does!)
• Use an independent contractor contract clearly outlining the working relationship
• Be consistent on how you classify everyone in the same class of workers.
• Send 1099s to all workers you paid more than $600 in the tax year
• Have your accountant certify your worker classifications
• Limit your interference – one of the best tests of an independent contractor has to do with control – how and when the independent contractor does their work, so keep your distance. The more control you exert, the more likely they’re really employees.

Stay tuned next week, when we talk about the 3 main categories of evidence the IRS uses to determine if a worker is really an independent contractor, including 10 questions that IRS auditors use to determine a worker’s status.

Men & Women Swap Expectations

A major new study out this week indicates that the attitudes of men and women have changed – drastically! While this study, conducted by Match.com, looks at dating attitudes, human resource and business professionals should take note as it’s likely that these attitudinal shifts will also impact workplace attitudes and performance in the future.

The study indicates an overall shift in how men and women view relationships and their goals for relationships. The research findings demonstrate that men are more interested in love, commitment and children, (54% of men say personal space is very Important) while women are seeking more independence (77% say personal space is “very important”). In other words, men are now expressing some traditionally female attitudes and women are adopting more traditionally male attitudes.

So, what does this mean for you and your organization? While the study did not address career priorities, one can reasonably assume that this kind of shift in personal priorities will eventually lead to shifts in career priorities. In the future we could see male employees placing a higher priority on family obligations, while female employees may more aggressively seek career opportunities even if those opportunities require greater time investments, travel and relocation. Whatever the outcome, one thing is sure, business leaders need to constantly re-assess how they attract and retain top talent.

What Good Are Corporate Values if Those at the Top Don’t Live Up to Them?

You’ve likely seen the news reports about HP releasing their CEO, Mark Hurd, amid allegations of sexual harassment, but what you may not have heard is that there is buzz in the industry about the wisdom of that action. Larry Ellison, Oracle’s CEO publically denounced the decision stating that HP made an “epic blunder” by releasing Mr. Hurd. In an impassioned letter to The New York Times, Mr. Ellison stated,

“The HP board just made the worst personnel decision since the idiots on the Apple board fired Steve Jobs many years ago…In losing Mark Hurd, the HP board failed to act in the best interests of HP’s employees, shareholders, customers and partners. The HP board admits that it fully investigated the sexual harassment claims against Mark and found them to be utterly false.”

While Mr. Ellison is correct in that the sexual harassment allegations were proved to be false, it was discovered that Mr. Hurd had an affair with a previous contractor responsible for marketing issues and falsified expense reports to ensure she was paid for work not completed and to hide the affair.

As for Mr. Hurd, he stated, “It was a “painful decision” to leave but acknowledged “there were instances in which I did not live up to the standards and principles of trust, respect and integrity that I have espoused at HP.” And therein lies the wisdom of the ouster. Although Mr. Ellison is a loyal friend to Mr. Hurd and appears concerned for the stockholders of HP, had this situation been glossed over and hidden the long term effects could have been even more devastating for not only their stockholders but their stakeholders as well.

Leaders must earn and maintain the respect of their stakeholders, otherwise it’s only a matter of time until the tapestry so carefully woven comes unraveled. So, while this moment in time is no doubt painful for HP and their stockholders, the decision to do the right thing is never a bad one.

Don’t Let Your Business Drown in a Flood of Disaster

Unless you’ve been living under a rock, you’ve probably seen the images of Nashville, TN following the devastating flood of 2010. While the Corps of Engineers has dubbed this the 1000 year flood, that isn’t consoling business or home owners who’ve lost everything – or practically everything.

As is the case in these situations, many people are now wishing they had planned ahead for such a disaster.

Virtually every business today relies heavily on technology and automated systems to run effectively and efficiently; and disruption of those systems, even for a few days, could cause severe financial hardship and even threaten the business’ survival. Disaster planning is a necessary evil that you hope you never need to implement, but in the case of a catastrophe you need a comprehensive plan that will help you recover and get back on your feet quickly.

Continued viability of your business will depend on your leadership team’s awareness of potential disasters (who could have predicted a 1000 year flood in Nashville, TN?), their ability to develop and implement a plan to minimize disruptions of critical systems and their capability to quickly recover and get back in operation.

The primary objective of a disaster recovery/business continuity plan is to Be Prepared. Prepared to protect your assets in the event of a natural or man-made disaster that disables part or all of your operations and/or computer systems. I can’t tell you how many people here now wish they had been prepared. Other objectives include:

• Minimizing delays
• Providing a sense of security
• Ensuring reliability of standby systems
• Minimizing the risk of decision mistakes in the wake of a disaster
• Provide a standard for testing the plan and making necessary adjustments

So, how do you develop a disaster recovery plan? In this 3 part series, I will walk you through a simple process to help get you started on your own plan. But please note, while the process may be simple, actually developing the plan is anything but.

Ten Steps to creating a disaster recovery plan

1. Gain Top Management Support & Commitment – The first step in developing any plan is obtaining top management support and commitment for the program. Without their commitment, the plan may be written but it will never get off the ground. Management should be responsible for coordinating the plan, enlisting key stakeholders and establishing and communicating the vision within the organization.
2. Establish a planning committee – This committee should be responsible for defining the scope of the plan, and the development, coordination and implementation of the plan and should be comprised of representatives from all major functional departments within the organization, including the operations manager and IT manager.
3. Perform a risk analysis – The planning committee should spearhead a risk analysis to determine possible disasters to be covered by the plan, including natural disasters, technical and human threats and a business impact analysis (BIA) to determine the potential risks associated with a disaster. The BIA has two components: 1) exploratory – to determine vulnerabilities and 2) Planning to identify strategies to minimize risks.

4. Establish priorities – Each functional department  should be evaluated to identify such areas as:

• Functional operations
• Key personnel
• Critical information to be protected
• Processing systems
• Service requirements
• Documentation needed
• Vital business records
• Key policies and procedures

Considered the following: how long could ___ department/organization function without each critical system. Critical needs are identified as the necessary procedures and equipment required to continue operations should a department, call center, headquarters or combination thereof be destroyed or become inaccessible. One method to consider when identifying the critical needs is to document all the functions performed by each department, highlight the primary functions and then rank the operations and processes in order of priority: critical, essential, important and non-essential.

5. Determine recovery strategies – Research and evaluate the most practical alternatives to recover operations and processing in the event of a disaster. Pay special attention to the following aspects of your organization:

• Hardware
• Software
• Facilities
• Communications
• Data files
• Customer services
• Operations
• Business Operating System
• End-user systems
• Other processing operations

6. Perform data collection – Develop pre-formatted forms that will help you gather critical information you’ll need such as:

• Critical phone numbers
• Master call list
• Master vendor list
• Computer hardware and software inventory list
• Notification checklist
• Office supply inventory
• Off-site storage location(s)
• Equipment inventory
• Inventory list
• Forms inventory
• Insurance policy information/inventory
• Data backup files/inventory
• Telephone inventory
• Temporary location specifications
• Other

7. Develop a written plan – Start with an outline of what needs to be included and get management approval before proceeding. Starting with an outline will help you visualize and develop a plan road map. It will also help the team organize their thoughts, identify critical procedures and major steps to be included, identify redundant procedures that need to be developed only once and utilized throughout the plan. Be sure to standardized the format you’ll use to assemble the information, especially if multiple department heads will be responsible for content. Be thorough and include all procedures to be used before, during and after the disaster, including methods for maintaining and updating the plan, who’s responsible for what etc.

8. Test the plan – thoroughly document, test and evaluate the effectiveness and practicality of the plan on a regular basis (at least annually). This step is critical to ensure that you’ve evaluated the feasibility of the plan, identified opportunities for improvement, demonstrated a reasonable ability to recover and provided motivation for maintaining and updating the plan on a regular basis.

9. Approve the plan – Following final testing, the management team should approve the plan for implementation. (Don’t forget to actually implement it!)

10. Communicate the plan to all employees and provide proper  training to employees and managers

Disaster recovery/continuity planning is much more than off-site storage and data backup files; is a type of insurance for your business – it may not prevent the disaster, but it will help ensure you are not financially ruined if one comes your way. As a leader you should develop and implement a written, comprehensive plan that addresses the critical aspects of your business.

Don’t Chance a Misstep in 2010 – How the New Regulations Affect Your Business

The regulatory world is changing fast – don’t be caught flat footed. Get in the know and prepare for how the new regulations might affect your business.

Welcome to edition 2 of the new 2010 regulations. Last week we discussed the FMLA expansion and new cell phone and texting restrictions. In this week’s edition, we’ll be taking a look at:

•  Jury Awards skyrocket in 2008
• Department of Labor Announces Goals for 2010
• New IRS Mileage Rates for 2010
• COBRA Subsidy Extended

Jury Awards Skyrocket by as Much as 60%

The median employment-related award rose 60% in 2008, from $204,000 to $326,640, while discrimination awards rose 16% from $208,000 to $241,119 according to Employment Practices Liability:

Jury Award Trends and Statistics 2009 Edition. As noted in a recent blog, Limit Your Legal Exposure During Layoffs, this trend may be directly related to the economic downturn and recession. With unemployment above 10%, and prospects for new positions slim, juries may be more inclined to award larger settlements to plaintiffs struggling to find work elsewhere. According to Jonathan A. Segal, a partner with Duane Morris LLP in Philadelphia, “…until the economy improves, you’re going to see more claims and higher verdicts”.

Department of Labor (DOL) announces 2010 goals to support Solis’ vision of “good jobs for everyone”.

The DOL is seeking to enact 90 new rules and regulations in 2010 to “ensure workers are paid a fair wage, have a voice in the workplace, are provided a safe workplace and have a secure retirement” according to a statement by Solis. Although it’s been quiet since President Obama’s election mainly due to the healthcare debate, the union fight is likely getting ready to heat back up. As noted in a previous blog, Are you Ready for the Next Wave of Union Activity?, the Employee Free Choice Act is looming on the horizon and could be used to meet Solis’ stated goals for 2010.  Don’t forget, big labor invested over $400 million getting democrats elected to office and they expect to be repaid.

IRS Announces New Mileage Rates for 2010

Beginning on Jan. 1, 2010, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:

• 50 cents per mile for business miles driven
• 16.5 cents per mile driven for medical or moving purposes
• 14 cents per mile driven in service of charitable organizations

The new rates for business, medical and moving purposes are slightly lower than last year’s. The mileage rates for 2010 reflect generally lower transportation costs compared to a year ago.

Obama Extends the COBRA Subsidy

Just before the holidays Obama signed legislation to extend the government’s popular 65% subsidy of COBRA benefits. Laid-off workers are breathing a little easier—and so are HR pros, who would have had to untangle a logistical knot if the extension hadn’t been enacted.

The subsidies, which helped make continuation health care coverage more affordable for involuntarily terminated workers, were set to expire on Dec. 31. Under the extension—bundled into the annual Department of Defense appropriation—most eligible workers will be able to benefit from the subsidies through Feb. 28, 2010. The legislation Obama signed on Monday:

• Expands the maximum subsidy period from nine months to 15 months. It includes people currently receiving the subsidy.
• Extends the qualifying time during which workers must have been laid off. The previous cut-off was Dec. 31; now it’s extended through Feb. 28, 2010.
• Closes a COBRA coverage hole that would have opened if the legislation hadn’t been enacted. Previously, if workers had been laid off in December 2009 but weren’t eligible for COBRA coverage until January 2010, they wouldn’t have been eligible for the subsidies at all. Now they are.
• Extends coverage for people who had already used up nine months of subsidy eligibility under the original legislation. Now they qualify for the subsidies if they retroactively pay back for COBRA coverage during the lapsed months.
• Requires plan administrators to notify eligible former employees of the subsidies’ availability.

 It’s no secret the regulatory landscape is changing fast. For the latest information on these changes, visit our website at www.HRSolutionsbyDesign.com.

Workplace Violence – Don’t be a Victim

In the wake of the terrible tragedies last week in Fort Hood, TX and Orlando, FL, many companies are dealing with some hard questions about the safety and security of their employees, customers and vendors and considering how they would handle a violent attack in their workplace. Consider the following statistics from The Society for Human Resources Management (SHRM):

• 57% of all workplace violence is perpetrated by an employee on other co-workers
• 17% is an employee against a supervisor
• 6% of attackers are customers
• 4% are love interests of employees
• 3% are spouses of employees

In virtually every situation there were warning signs before the violence erupted that were either misinterpreted or ignored. These warning signs may include:

• Sense of ‘entitlement”, “The world/ this company owes me.”
• Patterns of complaints, litigation, and/or unfounded whistle-blowing
• Frustration or moral sense of outrage with company, its rules, and procedures
• Fear and/or frustration about job status or loss
• Making “lists,” documenting, or conducting surveillance of others
• Narcissistic rage
• Excessive interest in, or frequent references to, other acts of workplace violence
• References to, or identification with those perpetrators who recently, or in history, committed acts of violence
• Frequent talk about weapons or methods
• Carrying a concealed weapon, or showing of a weapon at work
• Animal cruelty

In addition to early warning signs, employees who are considering violence my exhibit new or unusual behaviors that can provide clues to their intentions including:

• Anti-social behavior – social isolation, assaulting others, impulsivity, failure to accept responsibility, disregard for safety of others etc.
• Emotional instability
• Self-mutilation or self-harm
• Severe depression and suicidal attempts
• Neurological impairment

As an employer, the law requires employers to demonstrate a “duty to care” and keep individuals in the workplace safe and secure from dangers that can be reasonably anticipated. Although there are potential early warning signs to consider, employers must remember it is virtually impossible to reliably predict the behavior of others or anticipate and plan for every possible danger. When considering these warning signs and behaviors, it is imperative that companies ascertain if the behavior may be related to a protected disability (under the Americas with Disabilities Act) before deciding on or implementing a course of action. Although most employers can tolerate a certain level of disability related conduct, they do not have to tolerate direct threats or violent behavior that risks the safety and security of others.

Employers are urged to evaluate the potential dangers in their workplace and develop and implement an appropriate action plan. Considerations for a comprehensive plan should include:

• Evaluating safety or security concerns – such as lighting in parking lots, unauthorized access to building and premises, odd or suspicious behavior of employees, customers, vendors, your policy and practice when an employee is served with legal notices by law enforcement, etc.
• Establishing a policy of zero tolerance for threats in the workplace
• Consider banning weapons on company property
• Screen applicants carefully using background checks – including criminal checks
• Train supervisors and employees on the warning signs of violent behavior
• Defuse disputes quickly and establish a dispute resolution program
• Establish a policy that employees involved in a restraining order must report those to the leadership team
• Empower employees to raise concerns without fear of retaliation and report threats or other violent behavior to the leadership team
• Document any threats and your response to them

Although these steps can’t guarantee that you will never experience a violent act on your premises, they can help you identify concerning behavior and take appropriate actions to protect all your employees. If you need assistance reviewing your current program or establishing a new program, HR Solutions by Design, LLC can help you evaluate your site for potential security breaches and develop a comprehensive violence prevention program. For more information, give us a call at 931-698-9958 or email us at CindyBeresh-Bryant@hrsolutionsbydesign.com.

Cindy Beresh-Bryant is President, HR Solutions by Design, LLC. She has worked for Fortune 250 and Fortune 500 companies for over 15 years providing innovative HR solutions for some of industries most difficult situations.

Limit Your Legal Exposure during Layoffs

The current economic downturn has not only been brutal for company balance sheets but for individual balance sheets too. It seems everyday when we pick up the newspaper big and small companies alike are announcing layoffs.

With the national unemployment rate at 9.4% in August, foreclosures on the rise, credit card debt climbing to unprecedented levels and many Americans wondering how they are going to make ends meet, it is no big surprise that there’s been an uptick in litigation against former employers. The EEOC reported a 15% increase in discrimination claims in 2008 compared to the previous year and many attorneys expect that number to be even higher in 2009. Consider when Lehman Brother’s laid off employees in January 2009 several former employees claimed the company did not give them the required 60 days notice under the WARN act. And, in October 2008 just as the downturn began, four female former executives/staffers of Dell, Inc. filed charges of age and sex discrimination alleging that the recent layoffs unfairly targeted women and employees over 40.

I am not suggesting that discrimination claims or claims of companies failing to follow legal requirements is something new, but with jobs being scarce and candidates competing with greater numbers of applicants for new positions, it is becoming increasingly likely that former employees will more closely scrutinize how they were treated by their former employer. And in situations where they perceive they were mistreated or where there is a perception of favoritism and/or discrimination, those employees may be more likely to file change. In good economic times, when opportunities are plentiful and pay is competitive, people may overlook how they were treated especially if they can make a quick transition to a better position with greater stability, income and benefits. But in today’s environment where there are literally hundreds of applicants for each open position and positions are typically lower paying than what many people had before it is no wonder former employees are considering lawsuits for misconduct on an employer’s part.

According to Lawrence Z. Lorber, an employment lawyer at Proskauer Rose in Washington, D.C. “People take legal action out of desperation as it becomes more difficult to find new employment.” “When there is no job, there is no safety valve”, he said, “so people who have issues and then lose their jobs or have some adverse employment action taken, are now much more willing to file their suits.” So, what actions should employers take to guard against claims of discrimination? Well there are the tried and true steps that should always be followed including: 

•  Identify the reasons a layoff is necessary 
• Look for alternatives 
• Establishing an objective selection criteria 
• Know the demographics of your workforce 
• Conduct disparate impact testing 
• Secure a signed release and waiver agreement 
• Calculate both the obvious and the not so obvious costs of the layoff 
• Determine if there are any contracts in place that should be reviewed and considered 
• Review local, state and federal statutes such as FMLA, WARN, Military Leaves, ERISA etc.
• Consult with legal counsel

And then there are the things that aren’t so legalistic. These fall under the category of “Treat employees the way you would like to be treated” and “Do the Right Thing”. These include: 

• Communicate, Communicate, Communicate 
• Talk to your employees face-to-face 
• Answer their questions openly and honestly – if you don’t know something say so and offer to help find the answer 
• Provide advanced notice of the layoff if possible 
• After the announcements are made, if employees are not leaving immediately, do not avoid them like the plague – treat them like the valued employee they are 
• If they are leaving immediately don’t hand them a box and walk them to their desk to collect their things and then escort them out the door in front of everyone – give employees the opportunity to leave with dignity and offer them an opportunity to come back at a later time when there are fewer co-workers to get their things 
• Treat employees the way you would want to be treated in a similar situation

While these actions won’t guarantee protection from a wrongful termination or discrimination lawsuit, most employees don’t sue their former employers because they had to make tough employment decisions or even because they made a mistake, people generally sue a former employer because of how they perceive they were treated – how you made them feel.

According to Joel Christiansen, a practicing employment attorney at Christiansen Law in Portland, OR, …”people take legal action because they feel a sense of injustice for the way they were treated and want to investigate whether they may have been subject to unlawful employment practices. From my perspective as a plaintiff’s lawyer, I would say, “companies take illegal actions out of desperation as it becomes more difficult for them to fulfill their moral obligations to employees.”

These things never take place in a vacuum, in addition to how you make an exiting employee feel, keep in mind that remaining employees will know how you treated their friend and co-worker and their morale and loyalty just might depend on your actions.

Cindy Beresh-Bryant is the Division Human Resouces Manager for Eaton Corporation and is President of HR Solutions by Design, LLC. She is not an attorney and the information in this blog is intended for informational purposes only and should not be construed as legal advice. If you have additional questions regarding how to conduct a legal layoff, please consult an employment law attorney.