Delaware Employment Law Blog

Employees who feel cheated by their employers have their own way of fighting back.  According to a new survey, employees who believe that they are not properly compensated (either in money or in positive feedback), will find other ways of getting paid.  And it starts in the office-supply cabinet. 

The survey reports that nearly 20 percent of American workers take office supplies and only 22 percent of those who do feel bad about it.  But 74 percent knew that stealing is wrong. 

The most popular goods to steal are:

• pens, pencils, and rules (67%);
• paper and Post-its (57%); and
• calculators, staplers and tape dispensers (11%).

The theft of expensive items, though, such as laptops, PDAs, or cell phones, has increased this year from 8% to 5%.

According to HR Executive, theft can be attributed to "stress, long hour, and an inflexible schedule."  People were more likely to adhere to ethical standards if they had a healthy work-life balance.  Employees who don't feel appreciated return the favor by hurting the company in return.

Bullies in the workplace cost employers a substantial amount of resources.  Work Happy Now had a great idea--an ombudsman to listen to your employees' complaints and act as an intermediary to help resolve conflicts.  The post explains the potential benefits:

An Ombudsman could help a company see mistakes from the employees’ point of view. Let’s say a company tries to restructure the organization, and perhaps an employee sees a potential problem, but they are afraid to tell management. Employees are more likely to see a different type of problem because they are closer to the day to day operations. For instance they might recognize that a group of customers could become neglected by the restructuring. This employee could voice his opinion to the Ombudsman without fear of being fired or discovered for his dissenting views.

This sounds like a great bully-fighting strategy, too.  Often, employees want to speak up about the bullying behavior of a Jerk at Work.  But, often, employees have been bullied into silence and are scared to report the bully for fear of retaliation. 

An ombudsman could eliminate those fears.  If employees felt certain that their reports would be kept in strict confidence and told only to the persons who could (and would) address the problem.  Is this a viable solution for employers to use in the counter-attack against bullies in the workplace?

 Other Posts on Jerks at Work:

Abusive Bosses Should Watch Their Backs

Are Bullies Beating Up Your Employees' Health?

Bullies In the Workplace is Water-Cooler Talk on Good Morning America

Bullying Can Be Physical . . . But Torture?

The Cost of Bully Legislation

Top 5 Lessons to Be Learned from the Jerk at Work

Workplace bullying

You Know You’re a Bad Manager When. . . Mutiny at the Post Office

Bosses Aren't the Only Workplace Toxins: What to do with toxic employees?

Employee Handbook Policy #502: Respectful Workplace

Everything You Needed to Know About Your Toxic Boss

Jerks-At-Work Expert Confirms Fridge Raiding Is #1 Worst Workplace Incivility

Is the workplace the right place to fight the battle of the bulge?  With wellness programs on the rise, obesity among employees has been one of the most targeted health issues.

There seems to be a new study every week about the types of wellness initiatives that are being used, the effectiveness of the different initiatives, and the high cost of wellness programs.  And each study seems to generate different data. 

Despite the conflicting data, one common thread among many programs is the attempt to target obesity as a health risk.  A study by the Strategies to Overcome and Prevent Obesity (STOP) Alliance reports that 80 percent of employees, regardless of weight, believe that weight-management programs belong in the workplace.  71 percent reported that weight-management issues are appropriately addressed in the workplace. 

A recent article in BusinessWeek entitled "Hide the Doritos! Here comes HR" identified some well-known organizations that have declared war on calorie over-consumption.  According to the piece, companies such as Google, Yamaha, and Caterpillar have taken a first step by removing the junk food from all company kitchens and vending machines. 

[Source:  Human Resource Executive Online]

Other Posts about Employees' Off-Duty Conduct

Employees, Prepare to Get Healthy, Like It Or Not!

DelaWELL Wellness Programs Wins Award

DOL Offers Compliance Checklist for Wellness Programs

Are Wellness Programs on the Decline?

A Whirlpool of Excitement about Rights of Employees Who Smoke

Employees Who Smoke (Part 1) Smoking Breaks

Employees Who Smoke (Part 2) Charging Smokers Higher Health Care Premiums

Employees Who Smoke (Part 3) Employee Incentive Programs Targeted to Smokers

Delaware Employers & Employees Who Smoke (Part 4)

Employer Quits Its Smoking Policy

Not Everyone Is Fired Up About Smoking Ban

From Cancer Sticks to Drumsticks: How far should employers go when it comes to employees' health?

Employers who offer subsidized and on-site day care as part of their employee-benefits plan are very popular.  Employer-sponsored day care is a high-demand employee perk.  It is also a very difficult and costly benefit to implement. Google has recently learned this first-hand.

According to to a Joe Nocera of the New York Times, in an article titled, On Day Care, Google Makes a Rare Fumble, there has been a recent brouhaha about this very topic.  According to the article, Google has implemented a five-quarter plan to raise the cost of company-subsidized day care by approximately 75%.  [Gulp!]

Subsidized and on-site day care certainly not common but they've been around for more than a decade at many large organizations.  Google's own experience with day care has been a unique one.  Google began offering day care more than three years ago.  After devoting substantial efforts to it, the program offered only 200 (highly coveted) day care spots with a wait list of more than 700--resulting in a two-year wait for new parents and employees.  And the cost was no small thing.  Nocera writes that the cost to the company was $37,000 per child per year, as compared with the industry standard of $12,000 per year. 

The hyperinflation in cost will certainly reduce that waiting list. And if it doesn't, Google's recent practice of charging people several hundred dollars to stay on the waiting list should do the trick.  As a back-up, though, Google is opening new facilities, which should add another 300 spots. 

This is the second installment of HR Summer School.  Over the next several weeks, we'll be reviewing the three employment laws that are the most difficult to apply--the Americans With Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), and the Family Medical Leave Act (FMLA).  For details on the topics to be covered, see the Course Catalog. 

ADA 102, part of the HR Summer School's Back-to-Basics Program, reviews what the Americans With Disabilities Act requires of employers.  Course materials are attached for your reference. 

The Americans with Disabilities Act of 1990 (“ADA”), makes it unlawful for an employer to discriminate against a qualified individual with a disability. The ADA also outlaws discrimination against individuals with disabilities in the provision of State and local government services, public accommodations, transportation and telecommunications. This outline is limited to the employment context.

The ADA Applies to All “Employment Practices”

This means that any decision relating to employment must be made without violating the ADA. Some of the most common “employment practices” include:

Recruiting	Hiring
Firing	Pay
Promotion	Job Assignment
Training	Leave

 

The Three Types of Discrimination

1. Discrimination in Employment Practices

Employers may not make employment-related decisions because of a disability.

2. Retaliation

Employers may not retaliate against an applicant or employee for asserting his rights under the ADA.

3. Associational Discrimination

Employers may not discriminate against an applicant or employee because he associates with someone disabled.

Pre-Employment Inquiries and Medical Exams

An employer may ask “disability-related questions” and require medical exams only after the applicant has been given a conditional job offer.

1. Before an Offer Is Given, An Employer May:

• Ask about the applicant’s ability to perform specific job functions.
• Ask about the applicant’s non-medical qualifications and skills.
• Ask about how the applicant to describe how he would perform job tasks.

2. Once a Conditional Offer Is Made, An Employer May:

• Ask disability-related questions and require medical exams but only if this is done for all entering employees in that job category.

3. If the Offer Is Revoked, the Employer Must Show:

• That the disability-related reason is job-related and consistent with business necessity; or
• That the employee poses a “direct threat” of substantial harm to himself or to others and the risk cannot be reduced through a reasonable accommodation.

Pre-Offer Disability-Related Questions

1. What Is a “Disability-Related” Question?

A “disability-related question” is a question that is likely to elicit information about a disability. This includes directly asking an applicant whether he has a particular disability. It also means that an employer cannot ask questions that are closely related to a disability.

2. What If the Applicant Has an Obvious Disability?

If an applicant with no known disability interviews for a job, the employer may not ask whether the applicant will need an accommodation to perform the job.

But when an employer could reasonably believe that an applicant will need reasonable accommodation, the employer may ask the applicant certain limited questions, including whether he needs reasonable accommodation and what type of accommodation would be needed to perform the functions of the job.

This is permissible in three circumstances:

• If the applicant voluntarily discloses a hidden disability;
• The employer reasonably believes an accommodation will be needed because of an obvious disability; or
• The applicant voluntarily discloses that he needs a reasonable accommodation

An officer of the LAPD has sued the City of Los Angeles and its Police Department, alleging First Amendment violations and religious discrimination.  The officer's claims are based on off-duty statements he made regarding the Bible's teachings on homosexual acts. 

The officer, Sgt. Eric Holyfield, a Christian pastor, quoted Bible passages during a eulogy for a fellow officer, explaining that homosexuality "was an abomination" and that persons who engage in homosexual conduct "must repent or be condemned to hell."

According to

Holyfield was removed from his "coveted assignment in Community Relations" and assigned to patrol "without due process and in violation of his First Amendment rights." 

To survive dismissal of a First Amendment claim, a public employee must sufficiently allege that he was acting in his capacity as a citizen--not in his employment capacity.  This has been a difficult burden for many plaintiffs to overcome.  Here, Holyfield is apparently aware of the requirement.  He alleges that his speech was made in his role as a minister in the community, not a police officer.  He also points out that he was on vacation that day, he was in a church, which was outside the city, and was dressed in civilian clothes.  All of these factors weigh strongly in favor of a finding that he was not speaking as a police officer when he gave the sermon that resulted in his transfer. 

Given the fervor relating to Barack Obama's ties to Reverend Jeremiah Wright, it will be particularly interesting to see whether Holyfield's First Amendment and religious discrimination claims will survive a motion to dismiss.

Although studies show that most workplace bullies are in a managerial or supervisory role, this is not always the case.  Employees who bully co-workers pose an equally dangerous threat.  Just as employees with a bully boss may feel like hostages, subject to the unpredictable whims of a tyrant, there are plenty of managers who feel the same way about toxic employees.

For supervisors who are facing the challenge of managing a Jerk at Work, there is an answer.  Here's a roadmap to get you started.

What

What behavior constitutes "toxic conduct."

Start by identifying what behavior is unacceptable.  Often, bullies are very subtle, leaving their targets questioning whether they are just imagining the abuse.  They may become very critical of others, try to take credit for others' work, seek approval or validation, or even sabotage interpersonal relationships by spreading gossip and rumors or creating internal conflict.

Why

Why do toxic workers engage in this behavior.

Bullies are often driven by their own insecurities.  They worry about their competence, popularity, or rank in the office hierarchy.

How

How can a manager retain her control when she's being bullied by a toxic employee.

There are three steps in dealing effectively with a bully in the workplace.  Supervisors must deal with herself, with the bully directly and with the bully's coworkers.

Dealing with yourself.  The trick here is that, as hard as it can be to address bullying behavior, by avoiding it, the bully is likely to gain more and more confidence in the effectiveness of bullying tactics and then expand the scope of his efforts. A big part of eliminating toxic conduct is to rally up the nerve to actually deal with it in the first place, especially due to how easy it is to ignore.

Dealing with Coworkers.  Supervisors should also foster an environment that encourages employees to report unacceptable behavior.  It's not uncommon for employees to be scared to "tell" on a bully colleague.  But speaking up is essential to send a message to others that they need not tolerate nor accept bullying behavior. 

Dealing with the Bully.  The first step is to talk to the bully directly about his behavior.  Be clear about what conduct will not be accepted.  Make certain that the employee understands what will and will not be tolerated.  And then tie those behaviors to real rewards and discipline.  And as tempting as it might be to take a hard-line approach concentrating on punishing the employee, it's often more effective to focus on rewarding positive behavior.  The employee may need to be motivated and challenged in new ways.  He may have come to a point where his work is no longer challenging enough, leaving him bitter, jealous, and resentful, with lots of free time to concentrate his energies on bullying conduct.

 

Toxic bosses infect the workplace and affect the workers in it.  BusinessWeek has been running a special series, Business at Work: Toxic Bosses.  The series focuses on the dangerous impact of what I call Jerks at Work. Bob Sutton, who is mentioned often on this blog, is one of the guest contributors. 

Dr. Annie McKee, Managing Director of Teleos Leadership Institute, is also a contributor.  McKee's post had a particularly important lesson I think is worth repeating here:

That’s one of the reasons why toxic bosses are so dangerous—their poisonous emotions cause us to sink to the lowest common denominator. Worse, when destructive emotions emanate from the most powerful amongst us, we catch the disease, then spread the pain. It’s not long before we live and work in an environment that is caustic, dissonant, and just plain miserable

McKee goes on to encourage workers with a toxic boss to try to resist the urge to fight back with equally toxic behavior.  I concur--enthusiastically.  As difficult as it can be, the most effective strategy is to channel our energies into maintaining a positive attitude.  We know how infectious negative emotions can be in the workplace.  It only takes one negative coworker to bring a rain cloud over the entire office. 

McKee says, pointedly, "Remember, the poison is his or hers, not yours! You have a choice about whether you mirror destructive emotions, moods, or styles." 

One way to do this?  Use the power of numbers.  Engage in your own campaign.  Gather the troops.  You are not the only one suffering at the hands of your toxic boss.  Make a pact.  If one of you is targeted, agree that the rest of you will rally around and fight back with positivity and support.

Fight back with positivity.

Earlier Jerks-at-Work Posts:

Jerks-at-Work Expert Confirms Office Incivility

Abusive Bosses Should Watch Their Backs

The Cost of Bully Legislation

You Know You're a Bad Manager When . . .

No Jerks Allowed, Catchy, Isn't It?

Respectful Workplace Policy

Top 5 Lessons to Be Learned from the Jerk at Work

Bullying Can Be Physical . . . But Torture?

Are Bullies Beating Up Your Employees’ Health?

Bullying in the Workplace is Water Cooler Talk on Good Morning America

Upcoming employment-law audio conference.  August 14, 2008, William W. Bowser and Molly DiBianca will be discussing the pros and cons of using the internet for recruiting and screening efforts.  The audio conference is hosted by HR Hero and is approved for HRIC credit.

Learn how far you can go without risking legal liability and what to consider when deciding whether to employ these strategies. 

• When Google and other social networking sites can be a useful tool for HR
• Why some information found on social networking sites may be too dangerous to be considered in the hiring process
• How using the Internet to screen job candidates could lead to complaints of hiring discrimination
• How to handle information found online that you would never ask about in an interview
• What to do if an applicant claims that your Internet background check constitutes an invasion of privacy
• The likelihood of being led astray -- positively or negatively -- by online information
• What the current Internet search debate says about generational conflicts in the workplace
• The roles of organizations, such as ReputationDefender, that work to find and remove an individual’s negative online content

The seminar is scheduled for Thursday, August 14, 2008, 11 a.m. - 12:30 p.m. (Eastern).  To register for, Click Here for Lawsuit:  Applicant Screening with Google and MySpace.

Despite the holiday week, Wal-Mart probably is not feeling much like fireworks. A $6.5 million judgment is nothing to celebrate.  Earlier in the week, a class of more than 56,000 Wal-Mart employees was awarded $6.5m in back pay for wage and hour violations.  And it gets worse.  The penalties phase, scheduled for October, could bring another $2 billion in damages.

The alleged violations included unpaid training time and failure to comply with state law for meal and rest breaks.

Wal-Mart's own internal audits were used as damning evidence against the retail giant.  The company had performed a series of audits that supported the employees' claim about missing meal and rest breaks. 

So is this strong support for never conducting an internal audit?  Well no, not really.  If your wage and hour practices are not in compliance with the law, that won't change by whether or not you perform an audit.  Nor will an audit change the likelihood that an employee with some knowledge of the wage and hour laws will file a claim with the Department of Labor.  Whether you chose to ignore it or chose to address it, a violation is a violation.

Ok, so why did Wal-Mart's audits end so badly?  The audits did not end badly.  The unlawful practices did.  Audits don't serve much purpose unless the employer acts to correct any problems that the audit reveals.  If you don't actually act on the information, the audit is nothing more than evidence--against yourself. 

Another question, though, that is raised by this case is why the audits came into evidence in the first place.  Performing an internal audit must be done with great care to ensure that the information cannot be later used against the company.  Some believe that involving legal counsel in an internal audit is the best way to achieve this. If the audits are generated for counsel, attorney-client privilege may attach and serve to protect the results.  Undoubtedly, though, how the audit is conducted is just as important as what is done with the results .