Posts in Hair on Fire
Employees in Treatment for Substance Abuse
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Dear Solve HR,

I really need help with this one. My employee of one year has been erratic lately, showing up more than two hours late for his shift on two occasions, forgetting to perform some very important safety protocols during his work, and lashing out at a coworker in violation of our employee conduct policy. I coached him on these occasions verbally and in writing, but things haven’t improved. At the most recent meeting three days ago, I let him know that if he arrived late or violated policy one more time, he would be subject to termination.

Today, he showed up an hour late, without a phone call or any communication. When he arrived, I handed him a termination letter, and told him that he was fired. His response was that he was an alcoholic and was attending outpatient therapy, but was having a hard time sticking to his program. I told him I was sorry to hear that but that he was still terminated.

I walked him out of the building and he left. My manager thinks I did the right thing. Now I’m worried that maybe it was the wrong choice.

What do you think?

Manny

Dear Manny,

Yikes! This is one of those sticky situations that doesn’t come up every day. I understand your concern, and I hope that part of your worry is about making sure this employee is okay. We all find ourselves sick and unable to work at one time or another, and hopefully your company is supportive of people who need help, by providing care through your employee assistance plan, health insurance benefits and short term disability salary continuation if those things are available.

That said, the repeated problems you described are serious, and you had no way of knowing your employee needed help for a medical condition, because he didn’t ask for it or disclose his struggles. He just kept messing up at work and not telling you about what was going on. But you can probably understand why he wasn’t too eager to disclose that he was in treatment for alcoholism.

Before we start talking about the situation, I will recommend that you consult your company’s attorney or another employment lawyer to obtain advice about what to do in this situation. Legal advice is critical in hazy situations like this one. So do yourself a favor and be sure to involve your HR manager as well as your legal counsel on the front end before completing a termination in a situation like this.

While it’s true that your employee should be held accountable for his failure to arrive at work on time, performing his essential job duties and adhering to your employee code of conduct, and his explanation doesn’t erase the prior behavior for which he is subject to discipline, this situation merits further analysis. When your employee told you that he was an alcoholic and had been seeking treatment, that statement could be interpreted as a request for leave as a reasonable accommodation for a disability.

A “qualified individual with a disability” entitled to protection under the Americans with Disabilities Act (ADA) is defined by the EEOC as:

A person who meets legitimate skill, experience, education, or other requirements of an employment position that he or she holds or seeks, and who can perform the "essential functions" of the position with or without reasonable accommodation. An "individual with a disability" is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

According to the Job Accommodation Network (JAN), this standard of an impairment that substantially limits one or more major life activities has been interpreted to include alcoholism. If your employee was an alcoholic refusing to obtain treatment and repeatedly violated policies and did not perform essential job functions, then a well-documented termination would certainly be an appropriate option. If we consider your employee’s disclosure as a request for leave, then that infuses this termination with a distinct lack of clarity.

Technically it sounds like you terminated this employee prior to his disclosure. But issues of fact may remain here.  The EEOC does not generally view technicalities favorably-their view is likely to be that your employee disclosed his condition at the 11th hour and asked for help, and if you don’t make an effort to engage in the interactive process at that point, you may be held accountable for violating the ADA.

If your employee had gone home after being terminated, then called at some later date to talk about how his medical condition had caused his poor performance and requested help at that point, then it would be much clearer that you had terminated employment based on documented performance problems, without him having requested a reasonable accommodation.

Let’s look at the benefits to your company for allowing your employee to stay on and take leave for treatment:

  • You retain a knowledgeable and experienced resource on your team, instead of losing the investment you’ve made in that employee and incurring turnover costs
  • You promote loyalty and gratitude from that employee, and hopefully a more productive and motivated employee when he recovers and returns to work
  • Your other employees respect and appreciate that you care for your employees when they are vulnerable and sick, and that you will support them through difficult times as well if they need help
  • You reduce legal risk and potential reputational damage that can arise from EEOC action

One caveat: if you routinely drag your feet in dealing with performance issues, and this is an employee that everyone recognizes should have been terminated a long time ago but wasn’t because management didn’t do the job, then you may encounter frustration, both from upper management and coworkers. But don’t give in to the pressure to terminate an employee abruptly in a situation like this when in truth you haven’t been on top of performance management and discipline in the past. If you find yourself in that situation, it is probably worth the additional time and work to give the employee the opportunity to get well and perform his job duties, and manage him appropriately going forward.

You also mentioned that this employee failed to adhere to an important safety protocol at work. If an employee is in a work situation where being under the influence of alcohol presents a safety risk to himself and others, you may be within your rights to randomly test for the presence of alcohol after he returns to work from treatment. Certainly, your reasonable suspicion drug and alcohol testing protocols should still be utilized, consistent with what all employees are subject to in your workplace.

Again, consult with your HR team and attorneys to get specific advice about how to proceed.

Good Luck!

Kelly & the Solve HR Team

Visit Solve HR, Inc.

Photo credit: mariobonifacio via Foter.com / CC BY-SA

Performance Management Panic
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Hey Solve HR Team-

I have a huge problem and I’m not sure what to do about it. I’ve been a manager for about two years. When I was first promoted, my team of five was fully staffed and functioning reasonably well. We had challenges, and although we were busy, we had enough time to get our work done and also look at how to address them.

Since then, I’ve lost my two most senior people. They left for better opportunities at other companies. I asked myself what I could have done to make them want to stay, and I realize looking back that I could have seen it coming. My management team wanted to move two more people to another office, and the two team members currently in those positions didn’t want to relocate, so they found other jobs. I was able to replace one of them, but I took too long to fill the other position, so now management has given that headcount to another team. Meanwhile, I’ve only been able to replace one of my senior people. The other opening has been sitting out there without any qualified applicants coming in.

The real problem here is my manager. She has been the subject of a lot of complaints within the company, mostly for targeting people and making them so miserable they leave. Now she is doing it to me, and she’s also hounding the last original team member and forcing me to try to manage her out the door. This employee stepped up to fill in the gaps while our team has been in tatters. The performance of my team has been dismal because we have been so shorthanded. My manager wants to blame this employee.

So not only do I now have a team of three people trying to handle the work of five, but I’m now on a performance plan and I am being forced to put my employee on a performance plan too, even though I don’t believe she deserves it.

Any help you can give me would be appreciated. I don’t know how much longer I can take this.

Hanging on by a thread,

Jackie

Dear Jackie,

Whew! That is quite a crazy situation. It’s not that uncommon that middle management has opinions about what front-line managers should do with their teams. What is kind of weird here is that your manager is trying to do your job for you. If you’re honest with yourself, you’ll ask why that is happening.

The factors you mentioned, like the repositioning of the two jobs, the moving on of senior employees, and the remaining team members struggling—all of these are things that can happen at every company. I agree that having them all happen at once is difficult, but they do happen and they are problems that every manager needs to know how to deal with.

Here’s the question, though: have you made it clear to your manager what your plan is to solve these problems? I’d imagine that your manager has to answer to executive leadership about the sorry state of your team’s performance and present a plan of action. In an ideal world, that plan of action would come from you.

It sounds like your manager may have a reputation for being difficult to work with. Heck, she may even be a bully and incompetent when it comes to helping you figure out what to do. However, that doesn’t absolve you from your responsibility here. You must come up with a game plan. I’d recommend it include the following:

  • A clear sourcing, recruiting and onboarding plan (in conjunction with your talent acquisition team) for replacing your other senior team member
  • Regular team meetings and one-on-ones with your team members, with clear goals for both the team and each employee
  • Appreciation for the great work that IS being done during this difficult time, but also a refusal to back down from the responsibility the team has to keep your work on track, even without being fully staffed
  • Remaining available and engaging in ongoing listening and responding to your team-being consistent and caring during this time is critical to their success
  • A communication plan to keep your manager (and executive leadership) informed about what you are specifically doing to address their concerns and creating and adhering to a timeline to get the team back on track

Once you get beyond the current crisis, then it will be time to evaluate how your team is aligned with the strategic direction of your department, and your organization as a whole. Take responsibility for understanding not only how your team fits into the big picture, but also planning for the tactical elements that will get you there. Then follow up to ensure that each one of your team members clearly gets it, and follows through with their part.

It’s not easy learning how to get work done through others, which is what a successful manager does. Your manager may be doing a pretty poor job of it, so you may need to learn what not to do by observing her. One final point-you mention that your remaining original team member “does not deserve” to be put on a performance plan. You didn’t say this, but I assume that being put on a performance plan is a first step that could eventually lead to dismissal, so that makes it a big deal. I’d be careful about treating any team member more harshly than others, simply because your manager commands you to do it. If you performance manage your direct report without understanding why, you will be highly ineffective in managing her, your team’s engagement and performancewill suffer, and you could even create legal risk.

You must, therefore, outline what you know about this team member’s performance, let your manager know that you don’t currently see the need for a performance plan, and that you are open to initiating one in the future if you see that it would be appropriate. Also let your manager know that you are undertaking some improvements (see the bullets above) and that you would like to see how that plays out before taking any action with regard to this specific employee.

She may say no. But if she sees that you are taking responsibility for your team, she may decide she can stop trying to do your job for you, and give you some time to figure things out on your own. It’s worth a try. If not, then you must get a clearer picture of what skills, abilities and competencies you need to help your team member develop, and be very clear in your expectations for improvement. Frame the conversation in terms of helping her succeed, and then do your best to do that.

And if all else fails, it doesn’t hurt to start looking for a new position. You may not be able to make your current situation work, but even if you move on, I’d encourage you to reflect on the situation, discuss it with a trusted mentor, and learn what you need to know from this experience. It will make you a better manager.

Best wishes,

Kelly & The Solve HR Team

Visit Solve HR, Inc.

Photo credit: marc falardeau via Foter.com / CC BY

10 Issues to Address Today to Comply With DOL's Overtime Rule Change

timeclock Unless you've been living under an HR rock for the past couple of months, you probably have heard about the more than doubling of the salary minimum for the white collar exemption from overtime, which will soon be increased to $47,476. I have a client who is fully engaged in the stages of grief over these new overtime rule changes just finalized by the Department of Labor (DOL). At first she was in shock (why haven’t I heard of this before?) denial (Congress will block it) and now she’s angry (where are we supposed to get the money to pay for this?!?).

She knows her organization is going to have to come up with a game plan, so I shared with her these 10 most critical issues HR managers need to consider in order to successfully implement the new rules. Some companies will easily get over this hump, and some will struggle, but we are all going to have to come to terms with these changes, because it looks like on December 1, 2016, they are going into effect. That doesn’t leave any of us much time to plan, so I recommend we all get started on addressing these 10 issues:

  1. Identifying who is actually over the new salary limit for the so-called “white-collar exemption” from overtime is not as clear-cut as it seems. Up to 10% of the salary amount can consist of non-discretionary bonuses. If a bonus is delivered based on predetermined factors like the company’s performance, then this amount can count for up to 10% of the annual salary amount for determining which employees fit the white-collar exemption. In contrast, if a bonus is not based on pre-announced parameters, but is paid by the employer spontaneously after the fact, then it wouldn’t meet this category.
  2. Dealing with the situation where a commissioned sales employee falls somewhat short of the limit due to natural fluctuations in earnings. The DOL gives employers the opportunity to make a “catch-up” payment of up to 10% of the base salary amount to the employee at the end of a calendar quarter in order to bring the employee within exempt status for that quarter. The employer has one pay period in which to make the catch-up payment, and if it is not made, then the employee is entitled to overtime pay for the quarter in which she didn’t meet the exemption.
  3. Deciding whether to raise pay of employees to enable them to qualify for the exemption or reclassify them as non-exempt. It’s relatively simple to do this when you’re looking at single employees, and you can consider their productivity, the type of work they do, and the value they bring to the organization. However, you won’t want to raise salary levels to make one person exempt, while designating another employee non-exempt in the same or a similar role. You also need to consider whether new hires into that role should be paid a higher rate and included in the exempt category. Making the right decision requires a review of not only how your organization looks today, but how it’s likely to grow, and the succession planning and talent acquisition strategies you have for the future. This, all before you even look at the budget you have in place (or not).
  4. Delivering the news to employees who are being reclassified. If you are raising the rate of pay for your employees, this one seems simple. But when communicating a pay increase, use it as an opportunity to set expectations, express appreciation and confidence, and capture the goodwill that it generates. If, on the other hand, you must tell your team members they are losing exempt status, some of them may be offended, especially if they view the change as a demotion. Carefully and completely explain the situation, including any benefits, such as recaptured time. Finally, if you must tell employees that not only are they being reclassified as non-exempt, but their hourly rate of pay will be reduced to reflect the actual hours they were working while exempt, get ready for some backlash. Be transparent; don’t sugar-coat the message, but do explain the “why” behind it. The company may not have any ability to pay additional compensation in the form of wages, but maybe there are other benefits or opportunities you can highlight to employees. Encourage them through the transition, and remain open to hearing their thoughts on how it’s going, if you’d like to retain your staff.
  5. Monitoring hours for newly classified non-exempt employees. Ask your soon-to-be reclassified employees to do a “dry run” of tracking their hours each week prior to the implementation date. Low-tech solutions like timecards or spreadsheets can be used for the testing period, but if your organization is of a certain size, you may find it’s more cost-effective to use technology to handle the increase in timekeeping duties. Either way, plan for the HR operations staff time needed to process payroll in an environment where additional hours must be tracked. Documentation is everything, so ensure that all non-exempt employees are accurately tracking, recording, and submitting their time.
  6. Troubleshooting use of smart phones and other devices by non-exempt employees. According to a 2013 Harvard Business Review article, “60% of those who carry smartphones for work are connected to their jobs 13.5 or more hours a day on weekdays and about five hours on weekends, for a total of about 72 hours.” Remember that whether non-exempt team members have permission to work or not, if they do work, they must be compensated for it under the Fair Labor Standards Act (FLSA). Newly non-exempt employees who have been used to receiving praise for going above and beyond as salaried exempt employees now must be coached not to work smart within the 40 hour workweeks they are allotted, unless overtime is approved. You will need to consider whether it makes sense to continue to allow smartphone use for work among your non-exempt team members.
  7. Communicating changes to workers that may remove flexibility. Although the DOL is correct that flexibility within a work day or a workweek for non-exempt workers is preserved, in that employees may take off two hours early for an appointment but later work from home for two hours, there will be impacts to some flexibly-scheduled employees, especially those who are working schedules that allow them to flex hours as long as they add up to 80 hours per pay period. The FLSA requires time and a half be paid for each hour in excess of 40 hours in a workweek.  So these arrangements suddenly become much more expensive for employers to allow. And don’t forget state law when considering flexibility, because California, for example, has its own rules.
  8. Swallowing the increased costs that come with paying for work the organization was previously getting within the lower salary level.  As mentioned above, it is possible to make this transition at no cost, by determining how many hours your currently exempt employees between today’s salary limit of $23,660 and the new limit of $47,476 are actually working, and divide their current salary by that number of hours to get their new hourly wage when they are converted to non-exempt status. As an example, if I am currently exempt, with a salary of $40,000 per year, and I divide that amount by 52 to get the weekly wage, and then divide again by the 40 hours in a workweek, I get an hourly wage of $19.23. But if I have actually been consistently working 54 hours per week, and my employer instead uses that as my workweek in the calculation, then that hourly wage goes down to $14.25. Caution: in today’s current tight labor market, this is a tough sell, and turnover is expensive (see this EREmedia.com piece for more specifics), so this “cost-free” option may end up costing you tens of thousands of dollars per employee.
  9. Supporting salaried workers making over the new limit, as extra work gets pushed on them in the effort to avoid additional labor costs. If you’re unable to convert newly non-exempt employees to an adjusted hourly wage, as descried above, you may instead decide to directly convert the salary to an hourly wage when you reclassify your employees, and simply shift the work to those who are currently being paid above the new salary limit for the white collar exemption. This shift in work will certainly affect the outlook of those employees, which could also hurt engagement and retention. The ideal solution will depend on your budget (if any), a thorough analysis of the work activities in the roles, and a candid discussion of the value of the work being performed and its impact on the organization’s bottom line.
  10. Finding systems and technology to help the organization track time in an efficient and compliant manner. Kronos, ADP and Insperity all have offerings, and if you outsource payroll, you should check with your vendor right away to initiate a review of your data feed and processes, so there are no surprises when suddenly a large group of employees are reclassified. If your organization does not currently have a timekeeping and attendance system in place, toptenreviews.com has a lot of information about several different options, features and cost of systems.

Address these 10 challenges head-on, and you will be more than ready when the rule change goes into effect.

Visit Solve HR, Inc.

Photo credit: mikecogh via Foter.com / CC BY-SA

My Employee is Trashing Us on Social Media

social media Dear Kelly,

My employee in customer service is a decent performer but she definitely brings the drama. She got really mad about a schedule change the other day and let loose on her Facebook page. She’s friends with a lot of people at our office, including me, and now people are “liking” her post and there’s a ton of gossip around it. It’s totally distracting from our work.

The schedule change is unpopular (I don’t like it either) but the company had to do it so they could put together a way to cover expanded hours because our business is growing. My manager and other people are asking what I’m going to do about the Facebook post and I’m not sure what to tell them.

What do you think?

Jesse

Hi Jesse,

Change is the only constant in life. Your employees are reacting in an expected way to a change they don’t like, and it’s your job to help them through that process. You said yourself that you don’t like the change, but you recognize it’s needed for business reasons.

Have you gotten your team together to make sure they are all aware of why the change is necessary? Do they believe that you understand the many difficulties the change might present, like childcare challenges, personal adjustments, and other things that can affect them in significant ways? Do they know that you appreciate their willingness to work through this?

That’s the place to start, with real, transparent communication. You may find that if you are willing to listen, support and understand them, your team will adjust more quickly to these tough changes. None of you has a choice about the schedule changes-that’s true. But ignoring the fact that it’s a tough change isn’t going to solve this problem. It will only lead your employees to think they are not valued, and will hurt the level of trust, engagement and commitment of your team.

As far as the social media postings, tread carefully. Consult with your HR department and your company’s legal counsel. The National Labor Relations Board (NLRB) warns that social media policies “should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.” Scheduling can be characterized as working conditions. So be sure to get advice before deciding whether to address the post, and how to communicate that.

You can coach your employees on finding proactive solutions to problems, and encouraging them to come up with ideas instead of complaining. By rewarding this positive behavior, and ignoring the drama, you may find that it dissipates more quickly. If you focus on the trust, transparency and communication, you may find that the social media issues and gossip won’t be a problem anymore.

Best wishes,

Kelly

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Photo credit: Jason A. Howie via Foter.com / CC BY

My Best Employee is Being Deployed

American Flag Today’s Hair on Fire concerns the real and understandable panic every manager feels when the best performer on the team needs to take leave from work.

Hi Kelly,

I’m in a bind. I manage a small team of investment recovery professionals. We take things the company owns and try to sell them to other people to recover some of the value still left in them. We’re like highly paid junk traders, and the company values the money we bring in, especially since they’ve been on a rampage to cut costs and bring in more revenue. In the past year, we’ve had about one and a half times the amount of work we can handle.

One of my best performers serves in the U.S. Army Reserves. I really respect him and appreciate his service, but at the same time it’s throwing a monkey wrench into our team’s work planning, because he just found out he is being deployed overseas. I’m used to dealing with the drill weekends and things like that, where he would miss a day here and there, but now he’s supposed to be gone for several months and, to be honest, I’m freaking out about it!

We’re barely keeping on top of the work as it is, and being one employee down for the next few months is going to make it impossible for us to even stay afloat, much less be successful. When I mentioned it to my manager, she said that I needed to figure it out, because there wasn’t any way we could add to headcount, and she didn’t think it would go over well if we didn’t keep delivering the revenue we’ve been bringing in.

I’m between a rock and a hard place. What should I do?

Mike

Hey, Mike! Even though I’m betting you knew this was a possibility all along, I’m sure it’s a shock to be told that one of your team superstars will be completely unavailable for several months. Let’s start with the “musts” and then we will move on to the “shoulds.”

Here are the requirements:

  • Under the Uniformed Services Employment and Reemployment Rights Act, or USERRA, if your team member:
    • Has five years or less of cumulative military service
    • Notifies you in advance of his service verbally or in writing
    • Isn’t discharged for a disqualifying reason
    • Applies for reemployment in a timely manner after conclusion of service
  • Then you must:
    • Restore your team member to the job and benefits that he would have been entitled to if he hadn’t been called away for military service, or in some cases, provide a comparable job instead
    • Refrain from discriminating and/or retaliating against your team member in initial employment, retention, promotion, benefits or reemployment
    • Provide the opportunity for your team member and his dependents to continue health insurance coverage for up to 24 months
    • Allow your team member reinstatement of coverage, regardless of continuation, without a waiting period or preexisting condition exclusion, except as relates to military-service related conditions.

Now that we know what the company must do, let’s talk about how you should handle the situation:

  • Make it clear: be sure that your manager and the leadership of your company understand the responsibility of the company to comply with USERRA. HR can help you with this, and the Department of Labor has developed a USERRA compliance guide.
  • Be creative: find out what kinds of temporary staff arrangements have been used by your company in the past, and review your team’s work to see if more administrative tasks can be consolidated and performed by a temp worker. Look at the cost and go to your leadership with a game plan for handling gap while your valued employee is serving. This article has some great tips on planning for a key employee’s military deployment.
  • Express support: since you know that you must provide these benefits to your employee, why not embrace and celebrate his service? Your team may surprise you by working harder to support their teammate, if you have done your job in troubleshooting the gaps during his absence and providing additional resources. Portray this as an opportunity and be proud of your team when they step up to keep up the great results your company is relying on them to achieve. The VA has some great resources on supporting your employees during deployment. Another fantastic resource is the Veteran Employment Services Office website.
  • Celebrate his return: be sure to plan for reentry when your employee returns from his deployment. It will help your team adjust, and assist with his transition too. Here are some resources to help your employee transition back to work after returning from deployment.

Approach this challenge as an opportunity, Mike! Appreciate and support your deploying team member, while giving the rest of your team the opportunity to step up and shine!

Best of luck,

Kelly

Check out Solve HR, Inc. here. http://www.solvehrinc.com/

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