Administrivia, the Bane of Human Resource Management

Recently I was reading a copy of Fast Company Magazine, one of my favorite sources for recent information about business and organizational life, when I ran across an article I found totally intriguing. The title of the article was, “Why We Hate HR.” The article was written by Keith Hammonds, the deputy editor of Fast Company Magazine, and can be found in issue 97 (August 2005) at page 40. I found this article stimulating enough that it drove me to provide my reaction in written form.

At the outset of this article, the author announces that he does not like HR, and goes on to explain why:

The Human-Resources trade long ago proved itself, at best, a necessary evil – and at worst, a dark bureaucratic force that blindly enforces nonsensical rules, resists creativity, and impedes constructive change. HR is the corporate function with the greatest potential – the key driver, in theory, in business performance – and also, the one that most consistently under-delivers.

One of my favorite sports talk shows has a segment in which the listener can call in and give a “rant.” This article, which is about eight pages long, is a great rant. Yet, based on my HR experience, the quality of the rant is in part a reflection of the accuracy of the diagnosis.

HR will only achieve its promise, from the point of view of the article, if it begins to focus on being strategic and providing organizational leadership. HR needs to be a major player in designing and implementing strategies for organizational effectiveness, and it must provide leadership towards promoting and ensuring high levels of employee performance. In the author’s view, those two functions are given lip service but are simply not a part of the main HR menu in most organizations.

My intention is to use the e-zines that will follow in the next few months for the purpose of setting forth some thoughts on how to change the path of HR towards achieving its potential. In this e-zine I want to begin this project by noting the difference between the tasks that are most frequently assigned to the HR department and how they relate to the larger goal of providing strategy and leadership. To put it bluntly, the picture is not very bright.

Many of the tasks assigned to HR can at best be called administrivia. Tasks such as pay, benefits, and retirement can all be put into this classification. Obviously, each of those areas is extremely important. Making sure that employees are promptly and correctly paid and dealing with their medical insurance issues, to focus on a couple, are all time-consuming and vital activities but, at a basic level, entirely irrelevant to the success of the organization. As to evidence for my conclusion that these activities are not important to the success of the organization, I will simply point to the fact that they are increasingly being sub-contracted to an outside firms. Surprise! In many cases outside firms can perform HR tasks more efficiently and cost effectively then the HR Department. Clearly, if your prime activities involve fulfilling functions that can be easily farmed out and are not core to the success of the organization, it is not surprising to see why the individuals engaged in these activities will not be viewed by the organization as strategic and leaders. Moreover, I believe it is reasonable to assume that it will be difficult for HR to focus on administrivia, and still retain high levels of competency related to strategy and leadership. There is a fundamental belief that good peace-time generals do not make good war-time generals. The demands on the position of general are significantly different from peace-time to war-time.

Question: what “rules” in your HR Department? Administrivia? Those functions have to be done, but they do not have to rule.

Hopefully, the point that I am trying to make is now clear, and I have set the table for the next e-zine which will begin to look at the process of revitalizing the HR function.

Quote of the Month:

To unleash the extraordinary efforts of your workforce, you must first believe this to be possible. Then, you must make sure that your people have the resources, support, and freedom to meet the challenges – or seize the opportunities – when they present themselves. – Libby Sartain, Chief People Officer, Yahoo! Inc.

Continue reading...

Trial Services: Making the Marriage Work (by Chris Flamm)

Earlier issues of this E-zine focused on the legal aspects of the Trial Services period, and discussed the idea that this is the ideal time to bring the employee into alignment with organizational culture. In this issue we will explore some specifics of how to do precisely that, as well as explore the genesis of culture in an organization.

The Trial Services phase of employment has too often been viewed as a weeding out period. Many employers use this time to focus on what may be undesirable about an employee while they still have the ability to discharge that employee with no liability attached.

However, in terms of building a strong and successful organization, this time period can often be used to much greater success if it is viewed as a time to plant, fertilize, and nurture, rather than a period to deliberately seek for and weed out employees who shouldn’t make the cut. What seeds do you want to sow in your organization? What good habits and behaviors do you want to take root? What type of organizational culture do you want to encourage and help sustain? The trial services period is your best opportunity to construct a productive, long term relationship with your employees while helping to build a high performance, high commitment culture.

Successful organizations operate as a team. Whether in sports, the marketplace, or the non-profit world, teams need to coordinate their actions. A football team can’t win if everyone plays offense and team members fight each other to be the one to score the touchdown. Each team member understands the purpose of his actions and how it dovetails into the actions of others on the team. There can be no intelligent coordination without this understanding. Lack of understanding and coordination add up to a losing season in football; no less so in an organization.

A new hire must have two levels of understanding to be successful within the organization: the general and the specific. The general requires that an employee understand that he or she must work for the overall benefit of the organization and must act in a manner that promotes quality relationships with fellow employees. As to the specific, question number one should be: does your new employee know and really understand the mission or purpose of your organization? Question number two should be: does he or she understand the purpose of his or her own job and how that fits in with the jobs of others? The most productive employees are productive primarily because they understand the purpose behind their work and how it fits into the overall purpose of the organization. They have learned how to coordinate their actions to work effectively with others on their team.

New employees need to emerge from the trial services period having demonstrated that they have the necessary knowledge and are in alignment with the general and the specific expectations. Two factors can make or break the marriage during this “honeymoon period”. The first is the approach you use to train your new hires. The second is the culturally accepted practices and habits new hires acquire from your other employees. These two items predict the long term health of your organization and determine whether the marriage will be fruitful or end during the trial services period.

Turning first to training, the most effective method and the most positive for the new employee is to plan and implement an active process for teaching the employee how to do the job. The supervisor should encourage the employee to see the relationship as that of coach and coached. Maintaining the coaching relationship helps to insure a positive response to input. A coaching relationship also infers a hands on approach to training activities.

Second, culture is formed by more than a mission statement. It is formed by the actions and attitudes of all of its members. The Trial Services phase is where new hires have the opportunity to learn how to contribute to the organization as well as what to contribute to the organization. This is your chance to get them on the team, get them excited, and help them understand the purpose of their job in the higher context of the team mission. The habits and practices they pick up during this period are the habits and practices they will keep. You have a chance to recreate your culture in its most positive aspects every time you hire and train

The following are some suggestions as to how you can maximize the effectiveness of the trial services period as a time for training and as a time to help align the new employee to the culture.

1. The first suggestion is not so much an action step as it is a goal for much of your work with the trial services employees. The orientation and training of new employees is often an excellent opportunity to refresh and refocus the work of your experienced employees. Using the existing employees to help train and orient the new employee not only benefits the new employee but also can help reenergize the experienced employee. Of course you will want to make sure that the right lesson is being given which means a briefing session with the experienced employee thus providing the added benefit of opening a new door for productive communication with the experienced person.
   
   

2. The validation method is a recommended method of training a new employee. While not ignoring the need to correct the incorrect, the employee’s work is inspected periodically for what has been done correctly and well. A list of successful accomplishments can be far more helpful in shaping desired behavior then verbal or written statements about deficiencies. It is very easy to slip into a process of only commenting on that which needs to be changed. The intent of the validation method is to help set up and reward good habits and good work right from the start. This approach generates enthusiasm and commitment for the job at hand. It has the added advantage of helping the new employee quickly feel like a contributing part of the team.
   
   

3. A team approach to orientation can be a powerful tool both to reaffirm the basic culture and to bring the trial services employee into alignment with that culture. One method for implementing a team approach is to assign each team member an orientation task and the time needed to carry out the task. A second and probably more effective approach is to facilitate a team meeting specifically for the purpose of orienting the trial services employee. A good place to initiate the discussion is with a general question such as: what are the most important areas of orientation for our new team member? The responses can be put on a flip chart and then systematically discussed by the team with a focus on insuring the new employee’s understanding.
   
   

4. One important way to define and understand organizational culture is by the values that are held in common. A team exercise that can be used to help align the trial services employee to the culture is called shared values. Again, the supervisor works as the facilitator and asks the team this question: to work effectively together, what professional values do we need to hold in common? This question can lead to some intense discussion and some very good spin off questions such as: what is a value? Do we always act consistent with our values? Do we have shared values? What does it mean to act in alignment with these values? As a side note, one measure of the strength of the team is the level of honesty in the discussion over values.
   
   

This E-zine ends by returning to a critical point. The trial services period is best used when it is viewed as a time to grow or build something that can be sustained over time. Pulling the weeds is important but the desired growth must be the critical focus. All too often the primary focus is on weed pulling with little thought given to the possibilities and potentialities. Hopefully this e-zine has opened the door to working towards a more productive trial services period.

Continue reading...

In Defense of the Trial Service Period

Often times new e-zines come from a problem presented to me either through the arbitration process or one of my other professional activities. This e-zine is the second in a series of three related to the trial services period. During this past week I ran into a familiar problem dealing with the trial services period. In this case, the employer has a 90 day trial services period and a practice of dismissing an unsuccessful employee on the 89^th day of employment; perfectly acceptable practice per the last e-zine. As a matter of policy, no reasons are given for the dismissal other than the statement that the employee has not successfully completed the trial services period. Problem! In this case, the employee was deaf; a fact that constitutes a disability under the ADA. The plot thickens, the employer, during the prior two years, has only dismissed two employees during the trial services period; the instant employee and one prior. The prior employee was also deaf. Now we are in trouble.

While the courts have long recognized, as was discussed last month, that an employee can be dismissed without cause during a bona fide trial services period, the courts have never found that a trial services period protects the employer against the requirements of the ADA. The case is still pending as an EEOC complaint but my guess is that the employer is in trouble on this one.

While the ADA does not protect employees who fail to carry out the essential tenets of their job, the employer has a major burden to both demonstrate that it does not have an inappropriate pattern of unlawful discrimination and that the decision to dismiss the employee on the 89^th day was based solely on permissible reasons. For the purposes of this e-zine, I want to emphasize that the requirements of specific statutes will always trump your personnel policies – including the portion on Trial Service. You must always meet the minimum requirements of law in the way that you apply your policy.

The important point of this month’s e-zine, however, is not to focus on the legal issues concerning the trial services period, but rather to look at the possibilities. The trial services period should be all about performance. True, one dimension of the issue of performance concerns whether an employee can demonstrate the ability to perform at an acceptable level. But, when focus is attached exclusively to the right of dismissal, it misses the potentialities of the trial services period.

While the unfettered right of dismissal is an important element in a trial services period, it cannot be allowed to overshadow the more significant element which is the use of the trial services period to light a fire in new employees. If what the employer seeks is high performing employees, constant reminders that the new employee “may not make it” hardly seems to be an incendiary practice. Rather than dismissal, the focus during trial service periods should be on practices that help insure a long-term commitment to high performance. Three thoughts come to mind to help build this practice.

First, in the book First Break All the Rules, the authors cite extensive research that indicates the strong correlation between high performance and a relationship between the employee and the immediate supervisor. I do not think these research results are surprising as it makes logical sense that we all work better in an environment of positive social regard. If an employee trusts, respects and/or appreciates his or her immediate supervisor, obviously the employee will be more open to direction and coaching. The trial services period is clearly the time to establish those qualities in the relationship. What I am suggesting is that attention to relationship is as important, in the long run, as attention to work performance.

Second, the trial services period is an ideal time to bring the employee into alignment with the culture. While a more extended discussion of the process by which alignment can be achieved is a good subject for a future e-zine, I want to make two quick observations at this point. First, employees learn about culture through the modeling efforts by supervisors and fellow employees. Thus alignment can only be achieved through the involvement of team members. However, there is a double advantage to the employer of including team members in the process of creating alignment. Not only will the group process help bring new employees into alignment; it will also reaffirm to existing employees the importance of the culture.

Third, completing the trial services period has to mean something. One of my favorite definitions of happiness is “happiness is the successful completion of a worthy goal.” When a pilot successfully completes training, he or she receives wings to memorialize that feat. Having personally gone through that process, I have a clear memory about the feeling of accomplishment. In my view, that feeling of accomplishment is needed by the employee to fuel commitment and a high level of future performance. The employer needs to do something to show that passing from trial services to regular employment is a significant event.

Finally, you probably have guessed from reading this e-zine that the question of how to most successfully structure and implement a trial service period is my current, top research interest. I am convinced that the trial service period is the most effective time for the employer to head off performance problems by focusing on procedures that can help insure performance successes. The new employee is generally the most open to responding to these efforts. I am currently working with a couple of clients to completely redesign their whole approach to the trial services period. If any of you are interested in the specifics of what we are doing, please let me know.

Next month we will complete the three month e-zine series on trial service periods.

Quote:

What lies behind us and what lies before us are tiny matters compared to what lies within us.

Ralph Waldo Emerson

Continue reading...

Thoughts on Trial Service Employement

Private sector employment includes non-profits (private corporations with non-profit status). The law, however, does not always treat public sector employment the same as private sector employment. When writing these e-zines, I have attempted to carefully draw this distinction, when the distinction is important. Last month, I wrote an e-zine on severance pay. Unfortunately, as one of the recipients kindly pointed out in a return e-mail, I overlooked the fact that severance pay is by and large forbidden in public employment. Various federal and state statutes prohibit the “gifting” of public funds and severance pay is typically considered a gift – no work, no pay. Thus, while there may be a gray area over whether the employee must work the last few days before leaving employment in order to receive full compensation, clearly multi-month severance packages cannot be put together for public employees. I feel much better now that I have cleared the record on this issue.

On to this month’s topic. On August 10, of this year, one of my colleagues and I will be speaking at a national conference in Las Vegas, Nevada. For the record, I most enjoy speaking at conferences in: New York, Orlando, Anaheim, Las Vegas, and anywhere in Hawaii. The focus of the presentation is on managing the trial services employee. The presentation will look not only at the organizational and legal issues around the trial services period but will also map out steps that can be taken to initiate the new employee into the organizational culture. The early work that I have completed to prepare for this presentation has led me to believe that it is a topic worth discussing in the e-zine. Specifically, I intend to use the next three or four e-zines to construct an outline for effectively managing the trial services employee. In this issue I will begin by looking at two critical issues: 1) what should we call the trial services period, and 2) what significance does employment law place on the trial services period.

What to call it?

Most of the personnel handbooks that I run into still call the trial services period a “probationary period.” For a number of reasons, I believe that using the term “probationary period” to discuss the first stage of an individual’s employment is a very poor title. I recognize that it is commonly used this way but believe the term “probationary” has too much connotation of wrong-doing. Felons serve a probationary period in lieu of jail time or they are placed on probation post jail. Employees are put on probation when they have done something wrong. Thus, starting employment on probation carries the unnecessary and inappropriate sense of wrongdoing.

The term “trial services period” carries with it the concept that one is being given the opportunity to demonstrate capabilities. This is a time of training and development. It is also a time that both parties, employer and employee, can assess whether the position is a good fit for the employee. Most importantly, it is a golden opportunity for the organization to build off of a new employee’s enthusiasm for the job and appreciation for being given the job.

Significance of Employment Law

From the standpoint of employment law, there are good reasons why an employer benefits from distinguishing between an early trial services period and regular employment. First, either through a labor contract or through the organization’s personnel policies, most employees are afforded a grievance procedure by which to bring a formal complaint. Almost all of the labor contracts that I have reviewed clearly deny to the trial services employee the right to grieve dismissal during the trial services period. In other words, if you remove the trial services employee from his or her employment, that separation cannot be challenged. If you do not have a labor contract or where one does not apply, personnel policies can still distinguish between the rights of the trial services employee and the rights of the regular employee as regards the filing of a formal complaint.

Second, in the landmark Supreme Court case called Loudermill (1985), the Court emphasized that employment status in the public sector was a creation of the policies and rules promulgated by the employer. The Court goes on to emphasize that once the employer has created an employment status that carries with it a sense of permanency (regular employment), then that employee has a property interest in their employment and must be granted full due process for a discharge. This decision by the Court, in the view of legal authorities, clearly permits the employer to establish a trial services period that would carry with it no constitutional due process issues rights (no expectation of permanency thus no property interest).

While the Loudermill decision applies only to public sector employment, I believe the Court’s logic in that decision has broad applications. There are many good reasons why it is advantageous to make a clear distinction between the permanency of regular employment and the impermanency of trial services. While the next e-zine will look at the importance of making that distinction in a positive way, as a general matter of employment law it is often useful to make that distinction.

Reflecting over the points outlined above, I am closing this e-zine by offering three suggestions:

1. Review your personnel policies and/or your labor contract and determine whether the word trial services better reflects the early period of employment in your organization than does the word probationary period. If you have not made the change, is it possible to do so?

2. Review the language that describes the trial services period (probationary period) in your personnel policies or labor contract. Is it overly negative, focusing on consequences for the failure to perform? Without diminishing a clear message that separation can occur if the employee is not successful during the trial services period, can the language be written to emphasize that this is an opportunity for the new employee to shine?

3. Does the language of your labor agreement and/or personnel policies clearly indicate that the separation from employment for the trial services employee is distinctly different than the discharge of a regular employee? In my view, an organization ought to discharge a regular employee for cause while it separates a trial services employee for failure to pass the trial services period. The two are distinctly different. Similarly, the employer should not be using formal discipline on the trial services employee. If you cannot bring forth the desired behavior with coaching and training, then the employee has not passed trial services and should be removed from service.

One last point, personnel policies/labor contracts also use the concept of a trial services period (probationary period) for a promotion. Again, I believe it wise to focus on the positive. One difference related to the trial services period for promotion will involve the right of an employee to return to a prior position if he or she fails the trial services period. I cannot imagine that one would want to promote an individual if he or she was doing a poor job in their existing position. Thus, it seems to me that the right of return makes good sense. The policies, however, should be clear on this point.

As noted above, in June we will turn to the “art” of successfully managing the trial services employee and the organizational benefits that derive from putting a greater emphasis on working with the new employee.

Quote of the month:

We cannot teach people anything;

we can only help them discover it.

- Galileo

Continue reading...

The Facts on Severance Pay: What's Required and What's Advisable

Severance pay has recently become a topic of discussion with a client and, as a result, I took some time to do a little research. Severance pay is extra compensation (treated like regular wages) paid to employees as a result of involuntary termination or as an enticement to voluntary termination. Since severance pay is treated as wages, it would go on the employee’s W-2 just like any other wage. If you are in a situation where you might consider offering or providing severance pay, there are a few facts that you should be aware of.

1. Severance pay is not covered under federal wage and hour (FISA) legislation but is covered in a few state statutes. For example, the State of Maine requires severance pay in the case of relocations or shutdowns. Therefore, an employer should check with their state department of labor before determining whether to offer severance pay and, if offered, how much to provide.
   
   

2. While many employers provide severance pay for managers and executive level employees, very few provide it to hourly employees. This distinction may very well be an issue addressed by state statute, so one should be careful in making this decision.
   
   

3. Severance pay is usually provided as either a matter of the employer’s general practice or a specific policy. Only infrequently is it provided on a case-by-case basis.
   
   

4. Severance pay, in many situations, would be better considered as a severance package. Within this package you might have matters related to insurance, pension benefits and severance pay. If so, the employer should keep in mind that parts of the severance package may be a requirement of statute and other parts a voluntary action on the part of the employer. The employer should maintain the ability to separate the voluntary from the required in the event that agreement cannot be reached on the whole package.
   
   

5. Frequently, companies that provide a substantial severance payment will condition the payment on the employee’s agreement not to take any legal action against the employer. In such a case, the employer should be aware that the employee has the right to refuse the severance pay and proceed with the legal action – assuming that legal action can be taken. At least one source that I found indicated that the courts are more responsive to a no-lawsuit restriction on severance pay when it is a matter specifically addressed in the company’s policies.
   
   

6. Obviously, if the employee has the right to accept or refuse the severance package then the employee also has the right to negotiate the terms. Since there is no duty to bargain, the employer can reject the employee’s efforts to negotiate the severance package or can attempt to take advantage of what might be an opportunity to reach agreement that would ultimately save the employer a substantial amount of money and be to everyone’s advantage.
   
   

7. The amount of severance pay is typically related to the number of years of service; with a cap often being placed on the total number of years for which credit will be given. For example, a one-year employee may be granted a one-week severance package, a ten-year employee might be given a ten-week package and a seventeen year employee a fifteen week severance pay benefit where the company has a fifteen week maximum benefit. Since severance pay is not a matter of law, there is no rule as to what is reasonable. Consistency in the employer’s severance pay activities would be advisable.
   
   

8. Generally speaking, you should not expect an employee to make a final decision with regard to severance pay the first time you make the offer. See it as a multi-session negotiation. For example, you might have an initial sitting with the employee in which you lay out the broad perspectives of your severance package with the conclusion that you don’t want any response from the employee at this time but would rather have the employee take it and study it for a week and come back so that you can discuss it. A week later you may sit down with the employee and work out elements such as matters related to pension, medical insurance or other things involved in this package with additional discussions over the amount of severance pay and the no-lawsuit provision. You can then schedule an additional follow-up sessions. On the other hand, the employee may be fully willing to resolve all matters during the first or second session and, if so, proceed to settlement. Always remember that time means everything in negotiations and what a person is not willing to accept at one point in time they may be fully willing to accept at some later point in time.
   
   

9. Severance pay can be given as a one-time payment or in multiple payments. Multiple payments have substantial value if there are conditions that the employee needs to meet that are part of the severance package.
   
   

10. The following is some sample severance pay policy language that you can tweak to meet your specific situation:

SEVERANCE PAY

A. An employee who has been employed for a continuous period of at least 18 months and who is involuntarily separated from employment for reasons other than misconduct or unacceptable performance and who is not eligible for an immediate annuity shall receive severance pay.

B. The amount of severance pay shall be one week’s salary for each year of the first fifteen years of service and two weeks salary for each year of service after fifteen. No severance pay will be granted for service after the twentieth year.

C. Upon separation, the employer shall pay the employee’s severance pay at monthly intervals in an amount equal to his or her basic monthly salary until such time as all severance pay that is owed has been fully paid to the employee.

After having spent a substantial amount of time researching this question, I have arrived at the conclusion that for most of my clients it is wiser not to have a specifically written severance policy than it is to have such a policy. A specific severance pay policy may unduly restrict a small employer. Also, there is nothing that prohibits the negotiations of severance pay, on a case by case basis, and conditioning those negotiations on the specific facts of the involuntary separation.

Finally, since I am self-employed, I have no one with whom I can negotiate my own severance pay. I decided to resolve this matter by setting up a personal severance pay fund in the event that I terminate myself and I am beginning to set money aside in that fund. In the event that any of you feel sorry for me, have an overwhelmingly generous spirit and would like to contribute to my personal severance pay fund, I will gladly accept such donations.

Continue reading...

Guidelines for the Use of Administrative Leave

A recent consulting activity raised the question of the appropriate use of administrative leave. Sometimes it may be necessary to place one of your employees on leave. The most common reason for doing this is to safeguard the employer during an investigation into allegations of misconduct. Administrative leave includes both the temporary removal of the employee from all job duties or the temporary re-assignment of an employee to a different job pending an investigation. Administrative leave is not a disciplinary action, and it should not harm the employee’s record or performance appraisal. If the investigation confirms wrongdoing on behalf of the employee, disciplinary action should be imposed following the investigation.

You, as the employer, may question whether the nature of the alleged infraction is significant enough to warrant placing the employee on administrative leave. The critical question is not the seriousness of the infraction, but rather the vulnerability of the employer. If the nature of the infraction is such as to create a potential liability for the employer if the employee continues to perform his or her duties during the investigation, then administrative leave is appropriate. For example, if you believe an employee is embezzling money from the organization, the minimum prudent response is to remove that employee from a position where he or she can continue to take money. Similarly, an employer would not allow an employee to continue to drive a school bus during an investigation into a drunk driving charge. Were an accident to happen, the liability would be enormous.

In implementing an administrative leave, there are a few basic rules to follow:

1. Your actions must be consistent with your personnel policies and/or your labor contract.

2. You should have a consistent policy. Paying one employee who is on administrative leave and not another could lead to legal action or allegations of disparate treatment. Also the employer should be clear about whether an employee can use any accumulated vacation or other paid leave to compensate for an unpaid administrative leave.

3. In making a determination of whether administrative leave is appropriate, you should consider the potential legal liability of allowing the employee to remain at work, the state of mind of the employee, and whether the employee could potentially cause more harm or disruption if he or she remains at work during the investigation.

4. The law does not require that you pay an employee when they perform no work. Most employers, however, find it wise to, at minimum, reimburse an employee for lost wages if he or she is exonerated. Otherwise you may find yourself dealing with a bitter employee.

5. If you call the employee in for an investigative interview, you must pay the employee for this time. I recommend a full day’s pay as an incentive for cooperation.

6. If an incident occurs during the workday, you should send the employee home with pay for the remainder of the day. If the employee is exempt from overtime, you should always pay the employee for a full day when they are sent home, regardless of whether the remainder of the leave will be without pay. Exempt employees by definition are not “hourly”, and employers should not dock their pay in any increment less than a full workday. Doing so may lead to challenges of the employee’s exempt status.

7. Be sure the employee is aware of how they will be kept informed of the status of the investigation. Employees should be told that they must be available during working hours to attend conferences or interviews related to the investigation. Also it’s a good idea to designate days and/or times that the employee should contact their supervisor or Human Resources to check in.

8. An administrative leave may be turned into a suspension without pay if the investigation establishes charges sufficient to justify a suspension but not sufficient to terminate the employee. “Time served” thus becomes the discipline and gets the employee back to work.

9. To avoid disputes later, always follow up with the employee in writing. Send a memo to the employee notifying them that they have been placed on administrative leave, the reason for the leave, whether the leave will be paid or unpaid, and how contact will be maintained during the leave. Also, if your labor contract or organizational policies provide for a hearing or conference with the employee, the memo should state the process and timelines for requesting such a process. Keep a copy of the memo in the employee’s file.

10. It is in your best interest, and the employee’s, to conduct the investigation as expediently as possible. Remember, you are either losing money to pay an employee to stay home, or creating a financial hardship for an employee who is home without pay.

The time to create a policy on administrative leave is not when an incident occurs. If you do not have a policy developed, you should consider creating one. Be sure that your policy is clear and utilized consistently and that your managerial staff are trained on the use of administrative leave for investigation of wrongdoing. Hopefully, you won’t need to use your policy, but it’s best to be prepared.

Continue reading...

Tattoos and Piercings Galore: Implementing a Modern Dresscode

I recently came across a problem area that I thought might be important enough to put into an e-zine. The issue has to do with body piercings and tattoos. What are the employer’s rights with regard to “controlling” employee decisions to decorate their bodies with tattoos or provide uniquely situated piercings? Of course, what I mean by the term “employer rights” involves the current state of employment law as it implies to any right of the employer to control-sanction-prohibit the free expression of employees related to decorating their bodies.

My first response to the above question is to encourage all of you to acquire the book Weirdos in the Workplace by John Putzier, published by Prentiss Hall with a 2004 copyright. This book briefly summarizes, in a somewhat entertaining fashion, the interaction between employment law and a host of issues related to unusual employee behavior in the workplace. For our purposes regarding this e-zine, page 48 from the book will do nicely:

Art is a GenY individualist whose hobby is to “personalize his body.” He has a bolt through his nose, a stud in his tongue, rings through his eyebrows and tattoos in all the right (or wrong) places. Art thinks of himself as, well… exactly that… living, walking “art.”

The book goes on to point out that “self-inflicted diversity” is not a protected class. “Art can express himself as painfully as he wishes when he is off the clock,” but the employer has substantial rights with regard to limiting body art in the workplace. The employer can require the removal of hardware, require that tattoos be covered with long sleeves, turtle necks, etc., can make job assignments where body art cannot be covered and can choose not to employee based on a reasonable decision that in-your-face body art will not present the desired public image.

To put the matter in perspective, body piercings and tattoos are considered by the court in the same category as dress codes. With this in mind, keep in fact the following four generalizations about employment law as it applies to dress codes:

• The courts have always permitted employers to reasonably determine their public image which includes the right to set a dress code. Thus, IBM always had the right to require its employees to wear white shirts or blouses, ties, etc., a right that is enjoyed by any other employer.

• Consistency is a critical factor that is almost always an essential tenet of employment law. That does not mean that all employees have to be treated exactly the same, but any differences should be explainable in business terms.

• Your dress code needs to reasonably reflect the type of work that is being performed. For example, an old court case distinguished between employees who interact with the public and those who have no interaction with the public. In the first case the courts permitted the employer to require that all women wear skirts to work – I did mention that this is a very old court case, did I not? In the second case (no public contact) the courts found that requiring skirts was inappropriate because it had nothing to do with the company’s public image and was a hardship on the employees.

• Sensitivity has to be paid to the relationship between the employer’s right to impose a dress code and issues related to discrimination around gender, race, religion, etc. If the dress code is perceived to discriminate against a protected class with no discernable business necessity, it can get thrown out. For example, requiring all of the young women in your employment to wear miniskirts will get you in serious trouble unless you are Hooters or some other similar establishment. From my perspective, if you do not understand why this is true, you are already in serious trouble.

The bottom line is this, you have, as the employer, a reasonable right to insist on compliance with a dress code which can include covering up tattoos, removing hardware and dressing appropriate for the position. The dress code can be stricter where employees are required to wear a uniform but can be imposed in a non-uniform situation. For example, the Air Force provides very strict guidelines for how Air Force personnel must present themselves. In this regard, note the following:

Females in uniform or in civilian clothes while on duty, may wear one small, spherical, conservative, diamond, gold, white pearl, silver pierced or clipped earring per earlobe; the earrings in both earlobes must match and the earrings must fit tightly without extending below the earlobes. (AFI 36-2903, Table 2.5)

I cannot imagine any of you who receive this e-zine wanting or needing to be this strict. On the other hand, if you believe the above requirement is a little rigid, then go to the internet, find the Air Force Uniform Policy and check what it has to say for men.

Let me close with this thought, the issue for most of you who read this e-zine is not going to be what you are permitted to do under law but rather what you can effectively implement with your employees. Creating a great deal of negative energy in your workplace by abruptly implementing a harsh and restrictive dress code is hardly what you want to do. At the same time, if you find that the body art of certain employees simply won’t cut it, then it is time to beef-up your dress code because the failure to take action will ultimately limit your effectiveness as an organization. If you need some help writing new policy on this matter, I will be glad to help.

Continue reading...