August 2008 Archives

The Pros and Cons of a 4-Day Workweek: Cons

Posted by Molly DiBiancaOn August 30, 2008In: Alternative Work Schedules

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A lot of employees are big fans of the 4-day workweek. Four, ten-hour days to replace the normal 9-to-5 schedule we’ve all come know as “standard.” It’s a popular idea and it’s catching on like crazy, especially in the public sector. But there are two sides to every story, right? Earlier this week I discussed the pros, so now it’s time to look at the cons. Some of the ideas below were sent to me by readers who feel strongly that a four-day week is a bad thing. And just to show that they’re not alone, even Forbes recently ran an article called, Why the Four Day Work Week Doesn’t Work.

So, what’s not to love about a 4/10 compressed schedule?

Where should I start?

1. Decreased Productivity. Many people find it difficult to stay focused for eight hours. Adding two more hours may not result in any more work at all. Or, the work that is performed may be performed inefficiently or with errors.

2. Wrong Perspective. Author Cali Ressler says that this is the wrong approach to work. Instead of continuing to focus on the amount of time we spend doing work, she advocates that employers start to look at the results of the time we spend doing work. In a results-oriented approach, like the one she helped implement at Best Buy, how long employees is irrelevant as long as they get the work completed.

3. No Fuel Savings. Employees will still be driving on the fifth day—just not to work. Although they won’t be spending gas money on the commute, they will still have to fill the tank to run errands and make other trips that they didn’t do after their long workday.

4. Access to Child Care. Because the four-day workweek is new to many, childcare providers are not likely to change their business hours. Extended time at daycare means extended costs—often at a premium. This additional cost offsets the purported fuel savings.

5. Decreased Family Time. In reality, after a ten-hour work day, many people find that they are too tired for a family game night, or to attend a sports event. Remember, it’s not just 10 hours of work, by the time you figure in wake-up time and day-care drop-off in the morning and pick-up at night, employees will have been going strong for more than 13 hours, and that’s before anyone eats dinner. The result is a Friday packed with the errands and activities that were not accomplished after work and not much additional family time at all.

6. Decreased Morale. Long hours lead to fatigue, which leads to decreased morale. Long days spent in the office with colleagues with whom they may or may not get along can cause additional tension.

7. Day 5. When the nature of work requires employees to be accountable to clients or customers who do not work a four-day week, it may be unrealistic to think that their demands will not require attention on Fridays. Instead of a compressed schedule, employees may find that they’re working an extended schedule.

8. More Micro-Management. In order to reap the benefits of a compressed schedule, the typical workday slacking must be eliminated. Down-time for internet browsing and extra breaks have a greater impact and will require managers to become more involved on the ground level to ensure these time-wasters do not occur.

Want More on the 4-Day Work Week?

  1. Feds Take a Cue from the States and Consider the 4-Day Workweek
  2. 35 Questions You Should Ask When Drafting a Compressed Work Week Policy
  3. Positive Benefits of a Four-Day Work Week
  4. 5 Steps Toward a More Flexible Workplace
  5. Should a Four-Day Work Week Be Mandatory*
  6. It's Saturday Today in Utah: 4 Day Work Week
  7. Alternatives to the Four Day Work Week
  8. Popularity of the 4-day Week Continues to Grow
  9. Will Four-Day School Week Push the Four-Day Work Week Trend?
  10. Utah's Mandatory 4-Day Work Week Will Save the World. Sort of.
  11. Alternative Work Arrangement May Soon Become Mandatory
  12. I Hate To Say "I Told You So"–The 4-Day Workweek Is a Hot Topic
  13. How the Current Economy Could Affect the Future of Flextime
  14. New Employer & Workplace Study on Flexible Schedules

When Choosing Which Flex-Time Alternatives to Offer, Compare the Benefits

Posted by Molly DiBiancaOn August 29, 2008In: Alternative Work Schedules

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Employers who may be considering offering flexible work arrangements to employees should do their homework before selecting which type of program (or programs) to offer. We’ve previously discussed the various types of flex-time options.   clock

But once you know what’s out there, you should be sure you also understand how each option may or may not maximize your return on investment. Look to the benefits of each type to determine whether those are results that satisfy some need in your organization. Although each one provides benefits in one form or another, they simply may not be benefits from where you’re standing.

Here are a few benefits for each of the major types of flexible work arrangements. Use these as the starting point to determine whether each one may be of interest to your company.


· Improve efficiency if schedules are linked directly to correspond with employees’ most productive times.

· Gives employees more control over scheduling personal responsibilities at either the beginning or end of the workday

· Avoid rush-hour commuting—a quality-of-life and an environmental benefit.

Compressed Workweek

· Improves productivity if some work can be accomplished during quieter times of the day

· Provides more days off

· Decreases the number of days employees commute, including the time and costs inherent to the commute.

· Avoid rush-hour commuting.

Part-Time Work

· Retains employees who need time off for personal or family reasons.

· Expands the labor pool to include retirees, students, and persons with disabilities.

· Gives employees time for education purposes, such as working towards a degree, or other similar, personal-improvement objectives.

· Provides for an option for the gradual return to work after maternity leave or other absences.

· Allows gradual entry into retirement, and, in turn, improved transfer of knowledge through succession planning.

Job Sharing

· The same benefits as those experienced as a result of part-time schedules.

· Brings broader range of knowledge and skills t a position.

· Provides cross-training and skill-enhancement, and facilitates knowledge sharing.

· Enables continuity of coverage when one partner is sick or otherwise unavailable.

· Continuous implementation of team-based efforts fosters a sense of unity and cooperation


· Offers alternative to relocation

· Expands recruitment pool geographically

· Reduces office space and associated overhead costs
Can accommodate persons with disabilities.

· Decreases or eliminates commuting time.

· Increases productivity by enabling employees to work at their most productive time.

· Decreases the number of days employees commute, including the time and costs inherent to the commute

· Decreases other employee expenses, such as meals and clothing.

Some Good News from the EEOC

Posted by Molly DiBiancaOn August 29, 2008In: EEOC Suits & Settlements

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The Equal Employment Opportunity Commission (EEOC), reports that the number of discrimination charges filed has actually fallen. For federal employees, anyway. The EEOC released its Annual Report on the Federal Work Force for FY 2007 last week.


According to EEOC Chairwoman, Naomi C. Earp, "The report shows that in FY 2007, federal employees and applicants filed 16,363 complaints alleging employment discrimination on the basis of race, color, sex, national origin, religion, age,  disability and reprisal -- down from 16,723 complaints in FY 2006 and 18,000 complaints in FY 2005.” Over the past ten years, the number of claims filed by Hispanic, African American, and Asian federal employees have increased slightly but the number of disability claims has declined.

The private sector did not fare as well during FY2007. As previously posted, the EEOC reported that a record number of discrimination charge were filed with the agency last year.

Inside the Mind of a Super Jerk

Posted by Molly DiBiancaOn August 28, 2008In: Jerks at Work

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Bullies and jerks at work are finally being taken to task. Although there has not yet been an “Anti-Jerk Revolution,” there has been significant media coverage of the true havoc caused by a toxic employee. Companies are taking steps towards a more formal recognition of the problem, too, by implementing Respectful Workplace Policies. I’ve seen a greater attention being paid to the issue by the increased number of speaking engagements that I do on the topic. Instead of being retained to teach managers how to recognize and stop sexual harassment, I’m now asked to teach the same skills for spotting and stopping workplace bullying.

There have been a few interesting pieces recently, which have taken a different perspective on the question of workplace bullying. Instead of asking how to recognize the behavior when it starts, they look to what causes the conduct in the first place. Toni Bowers, at TechRepublic’s Career Management blog, for example, posted about the nature of power in the workplace and asks whether the first taste of power is addictive enough to turn a perfectly normal colleague into an intolerable bad boss.

For a slightly different take on the question of “why,” the always prophetic marketing guru Guy Kawasaki tells readers how to use the DSM-IV-TR to determine if it’s all in your mind or whether your boss really is crazy.

And, of course, the man leading the Anti-Jerk Revolution, Bob Sutton, has a blog full of insightful posts on the root causes of bullying behavior, as well as answers to the question of how to deal with bullies and save your sanity.

Feds Take a Cue from the States and Consider the 4-Day Workweek

Posted by Molly DiBiancaOn August 28, 2008In: Alternative Work Schedules

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Is the federal government the next to implement a four-day work week? Maybe. House Majority Leader Steny H. Hoyer (D-Md.) wants the idea to be considered, anyway. He’s asked the Office of Personnel Management (OPM), to "undertake comprehensive analysis of the transitioning to a 4-day work week for all possible federal employees and inform me by August 31, of any additional actions Congress would need to take to implement such a policy by the end of fiscal year 2008."

Presumably, the idea would be to switch to a mandatory four-day week, like the Utah example. Federal agencies already have the discretion to implement a compressed schedule agency-wide or on a case-by-case basis. The Federal Employees Flexible and Compressed Work Schedules Act of 1982 (the F&CWS law), authorizes a “versatile and innovative work scheduling program for use in the Federal Government.” image

The OPF previously recognized the value of alternative schedules as a way to attract and retain federal employees. In “Negotiating Flexible and Compressed Schedules,” the OPM concluded that alternative schedules will be an important part of the government’s future staffing efforts:

By all accounts, the workforce of tomorrow will be older, more culturally and ethnically diverse, and will consist of more female workers than ever. This diversity will require the Federal Government to utilize new and innovative approaches toward managing human resources and delivering services. To succeed, the Government must successfully compete for skilled workers; and it must be able retain them by providing challenging job opportunities and the flexibility to accommodate family responsibilities and other activities outside work. Flexible and compressed work schedules that are carefully planned and implemented can help make the Government more successful in its recruitment efforts, and more competitive and efficient in the bargaining should be undertaken with the goal of establishing flexible and compressed work schedules that support work and family programs, encourage the participation of employees and management, and also set up administrative controls necessary for the efficient operation of the agency and the success of the established work schedule.

August 31st is just around the corner so we’ll have to wait to see what the OPM concludes in response to Hoyer’s inquiry. In the meantime, catch up on the four-day workweek trend.

New Resource for Reference Checks

Posted by Molly DiBiancaOn August 26, 2008In: Background Checks

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Background checks have been so popular on the Delaware Employment Law Blog that they could almost make up a blog all by themselves.  Lucky for us, we don't have to.  Nick Fishman and his group have the topic of background checks all wrapped up at the EmployeeScreen IQ Blog.  Nick's content is always top-notch but this new endeavor appears to be hard to beat. 

EmployeeScreen IQ Blog has launched the EmployeeScreen University.  As described on the blog, EmployeeScreen Univ. is a "first of its kind interactive, educational Web site for security, risk management and human resource professionals that features regularly updated, free background-screening information; all aimed to help hiring managers make better hiring decisions."  The new site is intended to act as a comprehensive resource for all things related to background checks, references, employee screening, and pre-hire testing. 

Recently, the site has added a few exciting new features, including a Guest Articles section, where you can find articles written from a "unique point of view about background checks and, or other related topics from industry insiders and experts.

Sample of Guest Contributors includes:

Be sure to bookmark the site for later.  And, in the meantime, you can check out a few of our  most recent posts on background checks and employee screening:

Conclusive Proof that Employers Should Screen Applicants with Social Networking Sites

How to Conduct Online Background Searches With Google

Facebook Users Beware: Employers Aren't the Only Ones Who Know How to Google

Top 10 Reasons Why Employers Should Screen Their Applicants

Honey, Does This Outfit Make Me Look Unethical?

Posted by Molly DiBiancaOn August 26, 2008In: Dress & Attire, Just for Fun

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We’ve talked a lot about dress codes this summer. It’s a topic that just doesn’t go away. Beats me whether the sustained interest in the dress-code issue is due to the super-casual approach of the Gen Y employees populating the workplace at a rapid pace, or to the connection between rising temperatures and rising skirt hems, or maybe to our hyper-sensitivity to attire that the legal profession just can’t seem to let go. The obsession could be a result of any combination of these factors.

And the obsession has made for interesting blogging. We’ve talked about Gen Y’s insistence on meeting the arbitrary standards of fashion as they see it, as opposed to the standard of their particular workplaces. We’ve talked about the current status of the lawyer’s dress-code pendulum. We’ve addressed the role of gender when it comes to setting dress-code policies. And we’ve even managed to tackle some specifics of what not to wear to work—including the invasion of the man-short, a personal favorite.

As hard as this might be to believe—I’ve actually happened upon an even more interesting real-life story about dress codes! And it even involves a lawyer, which definitely gets me bonus points in the “tie-it-all-together” category. Judge for yourself. (Via the Legal Profession Blog).

The Arizona attorney at the center of the story was charged by the State’s Bar Counsel with unethical conduct. The lawyer had to answer to a disciplinary committee and defend the misconduct charges filed by the Bar Counsel. The atrocious conduct at issue? The disciplinary charge alleged that the attorney had employed tactics that had no substantial purpose other than delay and embarrassment. He was also alleged to have failed to abstain from “all offensive personality.”

And here’s the conduct that led to these charges. The lawyer, who was admitted to the Arizona State bar in 1999, and who practices criminal defense, went to a police station to informally interview two police officers involved in a vehicular-manslaughter case. When he arrived at the station, he was wearing a t-shirt that had “Let the f***ing” printed across the front. [Asterisks not included].  He wore the t-shirt to communicate his opinion that his client was at a disadvantage in the judicial system by virtue of the police conduct.” Neither officer commented on the attorney’s fashion choice. image

A prosecutor was also present during the visit. She testified that she was not offended or embarrassed by the shirt. She believed that he’d donned the shirt in an attempt to be funny; although she did think that it was a bit inappropriate. Her supervisor, on the other hand, did not find humor in the shirt or with the attorney wearing it. He ordered security officers to take pictures of the shirt.

And, perhaps to ensure that he wouldn’t be invited to the Maricopa County P.D.’s holiday party, he told another prosecutor that her boss was an “unethical piece of trash.” He made the comment in response to a request for a transcript. He provided the requesting prosecutor the transcript without delay or inconvenience.

Then, in an exercise of the holiday, gift-giving spirit, the attorney later sent a note to the Chief Attorney in the Vehicular Crimes Bureau, enclosing a small gift. The note read, “Kristen, your waiting room magazines required a better selection.” Enclosed was a six-month gift subscription to Modern Drunkard Magazine. The Chief received monthly issues of the magazine as promised but did not put them in the waiting room. She felt it may be inappropriate, given she was the head of the office that prosecuted drunk-driving cases. She did appreciate the humor, though, and was not embarrassed or otherwise imposed upon as a result of the “gift.”

If you are confused as to how these three incidents could rise to the level of sanctionable conduct, you are in good company. The hearing officer recommended that the charges be dismissed in their entirety—the first time in his 25-year tenure that he had made such a recommendation. Maybe the conduct was inappropriate or in poor taste. But maybe not—given the evidence that the intended recipients of his less-than-subtle messages were not offended or embarrassed. Either way, the hearing officer wrote, “on the continuum of inappropriate to unprofessional to unethical,” the attorney’s conduct could be described, at the worst, as inappropriate.

35 Questions You Should Ask When Drafting a Compressed Work Week Policy

Posted by Molly DiBiancaOn August 26, 2008In: Alternative Work Schedules, Policies

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The current rage in the public sector is the four-day work week. The idea of a compressed work week has caught on in cities and towns across the country and, for now, in one state (Utah), though it’s not hard to imagine that other states will follow in the future. The private sector has not been as enthusiastic about the idea, or at least so quick to act.  j0438778

There are some fundamental questions to consider before deciding to convert to a compressed-schedule workweek. Executive management will want to know the answers to these questions, as well, so it’s best to consider them in advance. If you feel comfortable with each of the issues below, then you are likely able to sufficiently design a workable policy.

Defining Purpose

What is the purpose of offering a compressed workweek? Is it because of the organization’s emphasis on work-life balance? To help employees bear the increased burden of the costly commute? Is the focus on the reduction of energy consumption and the desire to reduce the company’s carbon footprint? Or is it an innovative approach to increased productivity and efficiency?

Outlining the Scope

What is the basic offering of the program? In other words, what is a “compressed workweek”? Currently, the four-day, ten-hour-per-day option is most popular. But that’s not the only option. There is the 3-day, 12-hours-per-day option, or the 80-hour-per-9-days alternative.

Also, is this a trial program intended to last on a temporary or probationary basis? Or is this the “real deal,” intended to be a long-lasting option for future employees?

Determining Eligibility

Who is eligible to apply for a compressed workweek schedule? Is the option available to full-time and part-time employees? Is there a minimum length of employment that must be completed before the option becomes available? All job positions and pay grades? All facilities or only certain facilities? Is there a limited number of persons per unit or department that will be permitted to switch to a compressed schedule, after which, no requests will be granted? Can employees combine a compressed workweek with other flexible arrangements, such as telecommuting or job-sharing?

Submitting a Request

How should an employee go about making a request for a compressed workweek? (See 5 Steps Toward a More Flexible Workplace for details on ways to make the request-submission process most effective). How will requests be considered? Is there any preferential consideration given to employees with more seniority, for example? Or with the best performance evaluations? What factors might prevent an otherwise eligible employee’s request from being granted? Operational factors? Workload? Performance history?

Impact on Compensation and Benefits

How will holidays be compensated when they fall on the employees’ normally scheduled day off? If a holiday falls on a normally scheduled workday, will the employee be paid for 8 hours or 10?

Terminating the Program

What if an employee desires to return to a “traditional” schedule? Is there a process that must be followed? Is this considered a request for permission or is it awarded as a matter of right without any “permission” being awarded? How much notice will be required? And what if the employer needs to terminate the program? What are the conditions that could cause this to occur?

Reviewing the Success of the Program

How often will the program be reviewed? Will it be reviewed on a company-wide basis or just on an individual level? Will the employee be involved in the review process? What about the employee’s team members? What factors will be considered?

Previous Posts on Alternative Schedules and Compressed Work Weeks

Should a Four-Day Work Week Be Mandatory*

It's Saturday Today in Utah: 4 Day Work Week

Alternatives to the Four Day Work Week

Popularity of the 4-day Week Continues to Grow

Will Four-Day School Week Push the Four-Day Work Week Trend?

Utah's Mandatory 4-Day Work Week Will Save the World. Sort of.

I Hate To Say "I Told You So"–The 4-Day Workweek Is a Hot Topic

Executive Exemptions and the Fair Labor Standards Act (FLSA)

Posted by Molly DiBiancaOn August 26, 2008In: Fair Labor Standards Act (FLSA)

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The Fair Labor Standards Act (FLSA) requires that employees be paid at an overtime rate for all time worked in a workweek over 40 hours.  Certain categories of jobs are exempt from the overtime requirements.  image The Executive Exemption, for example, provides an exemption from the overtime laws for employees who qualify as "executives."  More specifically, an executive for purposes of the FLSA is an employee who:

  1. regularly supervises two or more other employees, and
  2. has management as the primary duty of the position, and
  3. has some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments); and
  4. is paid a salary of no less than $455 per week.

"Management" means just what you'd probably guess it to mean.  Managerial activities include:

  • interviewing, selecting, and training of employees;
  • setting and adjusting their rates of pay and hours of work;
  • directing the work of employees; maintaining production or sales records for use in supervision or control;
  • appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances;
  • disciplining employees; planning the work; determining the techniques to be used;
  • apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold;
  • controlling the flow and distribution of materials or merchandise and supplies;
  • providing for the safety and security of the employees or the property;
  • planning and controlling the budget; and monitoring or implementing legal compliance measures. 

Also included, . . .

Under a special rule for business owners, an employee who owns at least a bona fide 20% equity interest of the organization, regardless of its formal legal structure (e.g., corporation, partnership, or other), and who is actively engaged in its management, also is considered a bona fide exempt executive.

Highly compensated employees performing office or non-manual work and paid total annual compensation of $100,000 or more (which must include at least $455 per week paid on a salary or fee basis) are exempt from the FLSA if they customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee identified in the standard tests for exemption.

Not feeling so confident about your understanding of the FLSA? Our full-day FLSA seminar on November 14 might be exactly what you need to master the challenging world of wage-and-hour compliance.

Senator Biden on Work-Life Issues

Posted by Adria B. MartinelliOn August 25, 2008In: Employee Engagement, Locally Speaking, Newsworthy, Women In (and Out of) the Workplace

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Delaware is all a-frenzy with the announcement of our very own Senator Joe Biden as the presumptive Democratic nominee for vice president. If you’ve seen The News Journal over the several days, you’ve seen the almost front-to-back coverage of Joe. With Barack Obama still fighting to win over many Hillary Clinton’s women supporters, there’s been considerable focus in the media already as to Joe Biden’s record on women’s and work-life balance issues. image

We’ve previously posted on Barack Obama’s position on women’s and work-life balance issues. What kind of work-and-family experience has Joe Biden had, both in his personal life and as a policy maker?

The Wall Street Journal’s blog “The Juggle” noted Biden’s personal family tragedy: the 1972 car accident which killed his wife and infant daughter and left his two sons badly injured. To care for them while continuing his political career, he commuted daily by train between Wilmington, Del., and Washington, never securing a Washington residence.

As Chair of the Senate Judiciary Committee in 1991, some alleged that he was too easy on Supreme Court nominee Clarence Thomas and too hard on Anita Hill, a former co-worker of Thomas' who had accused the federal judge of sexual harassment. Some even maintain that "he very self-consciously tried to shore up his support from women voters after the Anita Hill episode."

Although Biden is perhaps best known for his focus on foreign policy, he has also had a hand in legislation targeting work-and-family issues. According to a cached version of Biden’s senatorial campaign Website (which since this weekend has automatically referred visitors to the Obama-Biden campaign site), the Senator is a co-sponsor of the Healthy Families Act, which would require employers with more than 15 employees to offer seven paid sick days a year. In the 1990s, he was the primary sponsor of the Violence Against Women Act and supported the Family and Medical Leave Act, which guarantees workers up to 12 weeks of unpaid leave to care for a family member.

The Mendte-Lane Saga Concludes With a Guilty Plea and a Lawsuit

Posted by Molly DiBiancaOn August 25, 2008In: Electronic Monitoring, Off-Duty Conduct

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According to the AP, Larry Mendte has admitted that he hacked into Alycia Lane's e-mail and leaked her private information to a reporter from the Philadelphia Daily News.  This admission comes just two months after Mendte's home was raided by the FBI and his computers from home and work were seized.  Although not likely, Mendte could be sentenced to up to five years in prison when he is sentenced in November.


Mendte admitted that he viewed hundreds of e-mails after installing a keystroke-tracking software on her computer at work.  Lane maintains that she complained about the possibility that her e-mails were being leaked but her employer, KYW-TV, "treated her as if she was paranoid."  Lane claims that her career has been ruined as a result of Mendte's behavior.

Positive Benefits of a Four-Day Work Week

Posted by Molly DiBiancaOn August 25, 2008In: Alternative Work Schedules

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The four-day work week continues its winning streak. Counties, towns, and cities across the nation are considering switching to the compressed-week schedule, that is, if they haven’t implemented it already. (See Popularity of the 4-day Week Continues to Grow). And, as previously discussed, Utah was the first state to adopt a 4/10 workweek statewide. (See Utah's Mandatory 4-Day Work Week Will Save the World. Sort of.).   add

As of yet, though, I am still on the fence. I can’t say I’m opposed to the idea. But I do have substantial doubts about the benefits of a longer workday. I also have concerns about the impact the shortened workweek will have on access to public services—especially by those who are in the most serious need of that access.

But, all of those questions aside, I can’t help but recognize the enthusiasm some have expressed at the idea of a Friday-free workweek. (Hopefully I’ll be a bit more firm in my opinion by September 16, 2008, when I’ll be presenting an audioconference with Rex L. Facer, Plan & Implement Your 4-day Work Week). For employers who are not quite convinced that a four-day workweek is a magic cure-all, it may be helpful to review some of the positive benefits that are said to result from the shortened work week. Here are of the “pros” from my Pros and Cons List on the topic. These might give you a start in evaluating whether such a program is a good fit for your workplace.

  1. Reduced fuel costs. Employees would have to endure the dreaded commute one less day each week, thereby saving money at the pump with reduced fuel consumption.
  2. Decreased absenteeism. On a five-day schedule, employees are forced to cram their two days off with personal errands, chores, soccer games, and social outings. By the time Monday comes around, there hasn’t been a minute of rest and employees are just plum beat. So they call out of work. This wouldn’t happen so frequently if employees had a third day to accomplish the work they have to do outside of work.
  3. Increased productivity. It’s a well-established principle of productivity that workers become less efficient where no deadline looms. That’s why we’re more efficient in the week before vacation—we know we have to get it done by the time we leave. The same idea is transferable to a shortened workweek. Employees are least productive on Fridays so why not just eliminate them altogether?
  4. Improved job satisfaction and morale. Satisfaction with what goes on in the workplace may be tied to what goes on outside of the workplace. Employees who spend more time with family and friends, who have the flexibility of three days off, will return to work refreshed, and generally less hostile to their employer.
  5. Reduced personnel turnover. Not surprisingly, #4 leads to #5. Happier employees tend to leave less often. If they like the job, they’re more likely to stick around.
  6. Reduced energy costs. By closing for three, instead of two, days each week, employers stand to recognize substantial energy costs. These costs can be significant where the schedule will actually permit the employer to close an entire facility for an additional day.
  7. Improved work-life balance. As a result of the added day, employees who work a four-day week will have more time to spend with their families and friends.
  8. Reduced traffic congestion. This potential effect may be seen largely on Fridays, which is the day most employers are converting to a non-working day.

Previous Posts on the 4-Day Work Week

5 Steps Toward a More Flexible Workplace

Should a Four-Day Work Week Be Mandatory*

It's Saturday Today in Utah: 4 Day Work Week

Alternatives to the Four Day Work Week

Popularity of the 4-day Week Continues to Grow

Will Four-Day School Week Push the Four-Day Work Week Trend?

Utah's Mandatory 4-Day Work Week Will Save the World. Sort of.

Alternative Work Arrangement May Soon Become Mandatory

I Hate To Say "I Told You So"–The 4-Day Workweek Is a Hot Topic

How the Current Economy Could Affect the Future of Flextime

New Employer & Workplace Study on Flexible Schedules

Bitter Employees Who Blog About Work

Posted by Molly DiBiancaOn August 24, 2008In: Just for Fun, Privacy In the Workplace, Social Media in the Workplace

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Ah, the poetic insolence of the bitter employee.  We all know the song by heart.  Sarcastic and   , they lie in wait for their next prey.  All employees are potential targets.  No one is immune from being swallowed whole, the sole of a well-polished Johnston & Murphy shoe the last image of what was once a pleasant co-worker.  Gulp.   Bitter employee will eat you alive

It could be the always-chipper Janet from Food Service--what's she got to be so happy about, anyway?  Or maybe Chad the Summer Intern, in his daily uniform of light-colored khaki pants, light blue, long-sleeved shirt, cuffs rolled, of course, and one of the four ties he's currently got in rotation.  Chad is powerless, really, and too concerned with making a stellar impression to sound like a whiner if he were to complain about the snide, jabbing comments of the bitter employee.  You know who they are. 

And so do they.  Just ask The Angry Receptionist.  She's working very hard--though not at her job duties.  Instead, she has blogged her way to the top of the disengaged-employee list by branding herself as the champion of bitter employees everywhere.  In her words:

I'm a receptionist at a mid-sized corporate office. When I first started here, I was very nice. It took about a week for everyone to try to take advantage of my good will in every awful way possible.
I'm not nice anymore.

And she's good at what she does.  Her blog has attracted lots of attention in the blogosphere. She is fully committed to her efforts, too.  In fact, she has all of the qualities of a potentially outstanding employee.  Except that she holds her cards too long.  If the workplace is as dreadful as she describes, why is she there?  You've gotta' know when to fold 'em, you know? 


For more on the impact of employees blogging at work or about work, see Blogs In the Workplace

State Employees Will Go From Fat to Fit--Or Else

Posted by Molly DiBiancaOn August 23, 2008In: Off-Duty Conduct, Wellness, Health, and Safety

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Get Fit or Get Fired? No, but if you're employed by the State of Alabama, you'll have to pay higher insurance premiums.

Fat employees, beware. The State of Alabama has issued an official “crackdown” on unfit employees. That’s right. The state has issued a get-fit mandate. Employees have one year to “see the light,” so to speak. Either get moving towards thin or face a bulging health-care premium. Employees who fail to trim their waistlines will pay $25 a month for insurance that will be free to their leaner coworkers. piggy

Alabama is the first state that has elected a “stick” approach to motivating employees to get healthy. There are a few states that offer rewards (i.e., carrots), to employees who make healthy lifestyle changes. Like many other employers, both public and private, Alabama already charges a premium to employees who smoke.

So what exactly is required? According to the New York Times article, Extra Pounds Means Insurance Fees for Ala. Workers, beginning in January 2010, state workers will be required to undergo health screenings—or face a monetary penalty if they refuse. If the screening reveals problems with blood pressure, cholesterol, or obesity, they are given one year to shape up or ship out. At a follow-up screening after twelve months, they won’t face the $25 charge.

And what will qualify employees for a passing grade when they take the screening test next year? Employees with a Body Mass Index (BMI) lower than 34 will be exempt from the “obesity charge.” A BMI of 30 is considered the threshold for obesity. And if you fail the screening? Other than being required to “make progress,” the State has not yet determined exactly how “progress” will be defined.

Maybe the most obvious question is just how the State of Alabama thinks that its out-of-shape employees, many of whom have been battling their weight, cholesterol, or other health issues for years, will suddenly develop the motivation, knowledge, and skills to make these changes. Deeply rooted lifestyle changes are not made because of an HR initiative.

If I sound cynical, it’s because I am. When employers stopped hiring smokers and charging employees who smoked, I was skeptical. Although there are obvious and undisputable benefits to a tobacco-free workforce, I worried that the proffered motivation was a bit too “glossy” to be true.

I also wondered how long it would be until there weren’t enough smokers left to make them a valuable target. At that point, what group would be the next to be targeted? I suspected it would be obese or overweight employees. It seems my prediction has come to fruition. At least for overweight government employees in a state where 30.3% of citizens are obese.

DOJ: How to Prevent Discrimination Arising from the Use of E-Verify

Posted by Molly DiBiancaOn August 22, 2008In: Discrimination & Harassment, E-Verify, Hiring, National Origin (Title VII)

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From the U.S. Department of Justice (DOJ), comes a new published Guidance relating to the use of E-Verify.  The recent, though short-lived excitement over the use of E-Verify for employment verification has now quieted down. Private-sector employees are back to the voluntary use of the system as a method for confirming that newly hired employees are authorized to work in the country.   DOJ

One of the concerns that was raised with the E-Verify program was its potential effect on discrimination in the workplace.  If, as a result of using E-Verify, an employer receives a no-match letter or a “tentative” no-match letter, he cannot terminate the employee without first trying to resolve the mismatch.  Failure to work with the employee to determine the cause of the mismatch could result in a claim for national-origin discrimination.

Anticipating the likelihood that employers would not want to engage in the additional steps of “working with the employee,” the DOJ issued guidelines outlining the step that an employer must take upon receiving information about a potential mismatch.  (See Antidiscrimination Guidance Concerning the DHS No-Match Rule).

See alsoE-Verify Employer Dos & Don'ts

5 Steps Toward a More Flexible Workplace

Posted by Molly DiBiancaOn August 22, 2008In: Alternative Work Schedules, Policies, Women, Wellness, & Work-Life Balance

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More and more employers are recognizing the value of offering flexible-schedule options to their workforce According to the recently released Top 50 Law Firms for Women, even the legal industry is putting a premium on flexible options as a way to retain valued employees. At first, many employers want to approach flexible schedules and alternative work arrangements on a case-by-case basis. And, although this is a good way to find the best fit for your organization, it is also a potential hotspot for employees to feel they’ve been treated unfairly when compared to others who made similar requests.  Flexible Working Arrangements

There are several ways to ensure that you don’t lose the positive benefits of your initiative as a result of disorganization or poor planning when accepting these requests. Here are five of the fundamental characteristics of a start-up flexibility program.

1. Outline a formal business-proposal approach. Require employees to submit a proposal describing their request. Have them clearly define the logistics of their proposed work arrangement, including how they will complete their work, how they will monitor and safeguard their productivity levels, and how their request would impact other aspects of the business, both negatively and positively. Communicate these requirements to all employees—don’t wait until you are approached with a request. If everyone knows what is required, you don’t risk dissuading some deserving employees who are intimidated by the unknown.

2. Create a specific review mechanism. All requests should be reviewed as a matter of course. Even if they are not likely to be implemented, every request for flexibility should be reviewed in the same manner. This will prevent complaints about favoritism and inequality. This is particularly important for the employee whose request is granted so she is not ostracized by others whose requests were denied.

3. Take it slow. As a matter of policy, implement any new flexible arrangement only on a temporary, trial basis. Communicate that the testing period will last six months and establish checkpoints for review and re-assessment throughout the trial period. As with any work arrangement, success is viable only where everyone knows what to expect from others and what will be expected of them. Will the employee be required to attend the monthly team meeting, which is held on Fridays, when her new arrangement has her working from home on Fridays? Any agreement will be successful only to the extent that all parties get what they bargained for.

4. Make it a team process. Take the proposal to the employee’s team members. Preferably, the employee can present her ideas to her coworkers and solicit feedback and suggestions individually. Using that feedback, she can tweak her proposal and present it again, this time with any feedback and suggestions going directly to decision makers.

5. Remember that this is a custom fit. Employees who have not demonstrated self-sufficiency and initiative should not necessarily be the first to receive special work arrangements. If an employee traditionally has been undependable or has required more hands-on management and coaching, then the flexible arrangement may not be a good fit. Be sure to consider the individual’s demonstrated work habits when customizing an alternative work arrangement.

Working Mothers Magazine Announces 50 Best Law Firms for Women

Posted by Molly DiBiancaOn August 22, 2008In: Alternative Work Schedules, Women In (and Out of) the Workplace

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The legal profession has been unable to retain women at rates comparable to other knowledge-based and professional industries.  There often appears to be just two choices for women with families--work around the clock and forgo quality time at home, or step off the partnership track permanently.  Many law firms are working to broaden the range of choices.  Flexible work arrangements are quickly becoming the most successful choice offered.  image

Working Mothers Magazine published its list of the 50 Best Law Firms for Women, which acknowledges firms working hard to retain female attorneys.  Flexible work schedules are the most common initiative but not the only one.  These firms host networking groups for female lawyers, have formal mentoring programs for senior female associates, and provide management training--all with the goal of helping make more women reach partnership. 

The winning features of each of the firms are listed in this article (pdf): 

Conclusive Proof that Employers Should Screen Applicants with Social Networking Sites

Posted by Molly DiBiancaOn August 21, 2008In: Background Checks, Social Media in the Workplace

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Facebook, MySpace, and other social networking sites should be used as applicant-screening tools.  And here is conclusive proof--the Burger King-Tub Boy, a/k/a, "Mr. Unstable," Timothy Tackett.  image

Tackett, 25, posted a video to his MySpace page, showing him taking a "bath" in the sink.  The sink, though, was in his employer's restaurant at the time he bathed in it.  In the nearly four-minute video, "Mr. Unstable" is seen bathing in a bubble-filled utility sink at the Burger King in Xenia, Ohio, where he had been employed.  Predictably, Tackett and four to five other employees on the midnight shift were terminated days after the video was posted.

So what's the take-away lesson from this unappetizing story? 

First, this is a lesson to our Gen Y friends and coworkers--yes, we mean it when we say that your social-networking escapades are not as private as you think. 

Second, these fiascos not only might prevent you from getting hired but also can get you fired if your employer learns of off-duty conduct that turns its corporate stomach. 

Third, this should serve as a poignant example of why employers must be knowledgeable with Web 2.0.  Your employees are online.  Employers, you need to be online, too. 

{There's no more excuses that you "don't know how" to use the social networking sites.  Just watch the step-by-step video tutorial, How to Set Up a Facebook Account for Applicant Screening}

Video Resources: How to Set Up a Facebook Account for Applicant Screening

Posted by Molly DiBiancaOn August 21, 2008In: Background Checks, Hiring

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Employers across the country admit to screening job applicants by checking the candidates' social networking sites, such as Facebook and MySpace. If you want to consider online job applicant screening, though, you'll need an account. Here's a step-by-step on how to create one.



This is the 4th Video in the series.  The first three can be accessed by selecting the "Resources" tab at the top of the page, and then "Video Resources" from the drop down list. 

Earlier posts on using the internet in hiring and recruiting:

Employee Evaluations: What's the Right Rating System?

Posted by Molly DiBiancaOn August 20, 2008In: Performance Evaluations

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Performance reviews and evaluations are a sensitive topic for employers and employees, alike. Diligent, thoughtful managers, want to craft the most accurate and effective employee evaluations without triggering hostility or damaging relationships. How to word a performance evaluation is a major source of mystery for most everyone. It's difficult to give "sample" language for use on an employee evaluation. The better approach is to start with the actual evaluation system that is in place. Does it meet the needs of your organization? More importantly, do reviewers actually understand how to use it? And do they all understand it in the same way?

For those of you brave enough to tackle your company's performance-evaluation system, I applaud you! It's a very worthwhile effort, even if you meet great resistance. Below, I discuss the four basic types of rating systems. Once you know how you want to rate, then you can decide what you want to rate. Put the two together, and you're off to the races.

There are variety of ways to rate an employee’s performance. Generally, though, there are four common approaches used by the majority of businesses. Each has its advantages and disadvantages. Below is a summary of the four types. The benefits and pitfalls will be discussed in a subsequent post.

Numerical Rating. Each attribute or objective is rated with a number, usually on a scale of 1 to 5, with 5 being the highest level of performance.

Evaluation. The employee is rated on his or her level of performance for the targeted objectives. Words such as Unsatisfactory, Satisfactory, and Superior are commonly used to rate how the employee performs each objective. Other language may include Distinguished, Superior, Fully Satisfactory, Fair, and Incompetent. In this model, the employee is not rated against anyone but himself and the reviewer’s expectations.

Behavioral Frequency. In this system, a list of targeted behaviors are identified and assigned a frequency, with the most frequent representing the highest level of achievement. An example might be: “Employee submits monthly budgets in a timely and complete fashion.” And the ratings may range from Rarely, to Sometimes, to Frequently, to Usually, to Always.

Comparison-Based. This rating system compares the performance of the employee to a pre-determined standard. For example, the employee may Meet the Standard, Exceed the Standard, Partially Meet the Standard, and so forth.

See also: It's hard to write a good employee evaluation. Get over it.

Health vs. Privacy: Employers Continue to Juggle Both

Posted by Molly DiBiancaOn August 20, 2008In: Wellness, Health, and Safety

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Wellness is a good thing. No one would debate the idea that a healthy workforce is a desirable workforce. What is questionable, though, is the role that an employer should play in “helping” its workforce to get healthy (and stay that way). Issues of employee privacy and paternalism are raised when employers begin “punishing” employees for what the employer considers to be unhealthy behavior. In a society where the line between work and home grows more blurry by the day, many have concerns that employers may be going to far when they regulate what its employees do during their off-duty, non-working time.

I’ve written many times before on initiatives to encourage workers to quit smoking and the “sticks” that may follow if they fail. I’ve also written about the recent surge in businesses that impose a “culture of thinness” on their employees. The popularity of wellness initiatives has caught on more quickly than you can say “Supersize.” Currently, 46% of employers offer incentive-based wellness plans and that number is expected to grow to 70% by 2009. reports on an interesting story about one employer’s hard-line approach to achieving a healthy workforce. In “Lose Weight or Else!,” Mina Kimes discusses the wellness approach of Lincoln Industries. The metal-finishing company’s CEO, Marc LeBaron, brags about the company’s 100% participation rate—participation is mandatory.

Lincoln employees can take advantage of weekly yoga classes, gym memberships, and health seminars. And if they stick with it, they receive a $25 monthly discount on insurance premiums and a yearly cash reward of $160. But would your employees be as enthusiastic if they were required to get a quarterly checkup for body fat and blood pressure? Only 12% of employees reported that they are in favor of employer involvement in health care.

Work-life balance, toxic bosses, and generation gaps, this week in BusinessWeek

Posted by Molly DiBiancaOn August 20, 2008In: Benefits, Employee Engagement, Jerks at Work

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Work-life balance, toxic bosses, and generation gaps.  Three of our favorite topics at the Delaware Employment Law Blog.  They're also the focus of a Special Edition of Businessweek.  The magazine, on stands Monday, has a feature called Business@Work.  The workplace special report was created, really, by readers.  In surveys, blogs, and polls, readers talked about their top concerns at work and their strategies and practical tips for how they deal with it all.  The topics covered include, in addition to the ones above, how to stay creative and entrepreneurial in uncertain economic times, time management, and managing the bureaucracy of Corporate America. image

There were lots of fascinating tidbits among the nine pages of text.  One of the main articles deals with the initiatives being taken by employers that focus on their employees' "happiness."   Go figure.  A "happiness initiative" is not necessarily a new idea.  After all, that's what employee benefits are, for the most part.  But some of the efforts being made by companies like Safeco, IBM, and BMW N. America, are new to me. 

How would your employees like the idea of being flown to Disneyland for the day--families included.  (If you like it enough to transfer, you'd want to apply at the L.A. office of law firm DLA Piper).  Or maybe you'd be interested in hiring a Chief Happiness Officer, who, if he's like the CHO at London ad agency, iris Worldwide, is in charge of managing regular pub crawls.  And for the academics in the group, there is happiness learning just around the corner.  Companies including Qantas and Sanofi-Aventis have called in experts to assess the emotional health of their employees. 

So are these "perks" really seen as perks by the employees who receive them?  Or does the fact that they occur during working time with coworkers and monitored by management make them any less enticing?

New DOL Web Tool for Veterans With PTSD

Posted by Molly DiBiancaOn August 19, 2008In: Internet Resources

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Secretary of Labor, Elaine L. Chao, will announce tomorrow a new initiative from the Department of Labor (DOL).  The initiative is designed to help employers of veterans and others with traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD).  deptoflabor

At the center of the initiative is a new website, America's Heroes at Work, which will provide information about TBI and PTSD, as well as tools and guidance on how employers can offer workplace accommodations to affected individuals, including non-veterans, such as first responders.  The purpose of the program is to provide employers with sufficient information to allay fears and to encourage the hiring of veterans with what are known as "invisible wounds of war."

The Employee Free Choice Act - A Recipe for Disaster

Posted by Sheldon N. SandlerOn August 19, 2008In: Leaves of Absence

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If enacted next year, the Employee Free Choice Act (“EFCA”) would amend the National Labor Relations Act by doing away with secret ballot elections and replacing them with a card-check procedure that would require unions only to obtain signed authorization cards by a majority of employees in order to organize.

Employers’ current concern that the law will be enacted is causing some to overreact by, among other things, implementing grievance and arbitration procedures that mimic those in union contracts. But doing so at this stage makes little sense, whether or not the EFCA is passed. If it is not, employers would find themselves with unwieldy and expensive procedures that might not be suitable for their workplaces. And they would be handing the unions an argument in favor of organizing – pointing to adoption of these procedures as something almost all union contracts already have, and being able to puff about how much more the potential union members can expect if they agree to unionize. Moreover, by adopting these procedures now, employers deprive themselves of a major bargaining chip in the event they do reach the table for collective bargaining negotiations. All in all, adopting a wait and see approach makes a great deal of sense in this situation.

How to Conduct Online Background Searches With Google

Posted by Molly DiBiancaOn August 18, 2008In: Background Checks, Hiring

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Hiring managers have a lot of homework to do. Background and reference checks have become absolutely necessary steps in hiring today for a variety of reasons, which we've previously discussed.  One way many employers are getting the access they need to uncensored information on candidates is with the internet.  Especially where the job pool is largely college graduates, the internet can be a great tool for applicant screening.

But the information superhighway doesn't come with a road map and employers may not know exactly how to navigate the internet when it's being used as a hiring tool.  When William W. Bowser and I spoke about this issue last week in an audioconference, there was a significant amount of interest in a tutorial on the ins and outs of performing background checks online.  We're happy to oblige. 

Here is a run-down of the two of the way you can use Google for doing your own, online investigation of potential candidates.



What:  Google is the most popular search engine in town.  It's actually quite a bit more than that, but you can check out our video tutorials on the other ways to use Google.  But, for this purpose, Google is just about as self-explanatory as they come.

How:  The quintessential websearch tool, just about everyone knows how to search via  In short form, all you need to do is direct your web browser to  In the search box, type the name of your candidate.  Run a search for every iteration of the candidate's name.  For example, if you were going to search Bill Bowser, you'd use that version of his name, but also, "William Bowser", "William W. Bowser", and even "Bowser, Esq."  Be sure to use quotation marks to ensure you don't return search results for all websites that include the word "William."

What You'll Find:  Of course, it all depends on the candidate, but Google is likely to turn up more favorable results than unfavorable ones.  Sports achievements commonly show up in a Google search, for example.  For younger candidates, the results are likely to be limited in number and will most often be directly from a local newspaper or school publication.

When to Use It:  If you use it at all, Google is an excellent place to start when searching for public information on candidates.  It's also a good tool for gathering data that the candidate would proudly tell you if given the opportunity. 


Google Blogsearch

What:  Well, since you're reading this via our blog, I'll assume you have a basic understanding of the concept. But for the sake of equality with Nos. 1 and 3, I'll give a little summary.  "Blog" is a combination of the words "Web" and "Log."  Blogs began mostly as personal journals (or logs) maintained by individuals and used as a way to communicate their daily adventures to friends and family.  But, as the phenomenon has caught on, blogs are maintained by an enormous spectrum of individuals and entities for an even larger variety of purposes.  There are enough blogs that your candidates may be bloggers themselves, providing you with direct access to their uncensored opinions and commentary.

How:  The easiest way to search for blogs online is to use Google's blogsearch tool.  Basically, you're just doing a Google search but limiting the results to blog posts.  This can be done either direct from the Google home page by selecting "more" from the list at the top left side of the window, and then by selecting "Blogs" from the drop-down list that appears.  Alternatively, just go directly to

What You'll Find:  You may find a blog hosted by the candidate, a blog post written by the candidate for someone else's blog, or a blog post about the candidate.  Any of these three are likely to give you meaningful insight into the candidate's personality, opinions, and, if nothing else, their communication skills.  For example, if hiring for a customer-service representative, an employer may have concerns about a candidate who uses an extraordinary amount of profanity throughout his posts.  Another serious red flag is an applicant who uses derogatory terms or expresses anger or hate towards any group.  This behavior should be major concerns to employers who want to avoid liability for discrimination and harassment.  It can also be indicative of violent tendencies.  And, given the fact that nearly $2 million American workers are victims of workplace violence every year, this must be a concern for employers, as well.

5 Costs of Coworker Bullying

Posted by Molly DiBiancaOn August 18, 2008In: Jerks at Work

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Workplace bullying has been a hot topic since the release of the 2007 Zogby survey, which showed that 49% of American workers report that they've been the target of a bully's bad behavior.  Employers have begun instituting tolerance training and implementing respectful-workplace policies.  Awareness is key in preventing this prevalent workplace disease. One way to make top management place value on eliminating jerks at work is to talk dollars.     Jerks at Work

Bullying costs companies big money.  Here are some of the ways that your bottom line is directly affected if you fail to eradicate bullying at work:

1.  Targeted employees have higher absenteeism rates.  Wouldn't you?  When the workplace becomes increasingly intolerable and unpleasant, people stop coming to work. 

2.  Decreased productivity.  Those who do manage to get themselves into work are less productive.  They're nursing emotional wounds, meaning they're more likely to hide in their office than dare engage with others at the risk of being put on the firing range.  Stress-related illness is not conducive to high productivity, either.  If you don't feel well, you're not putting your best efforts into your work.

3.  High turnover.  Replacing an employee can cost a business up to 3 times that employee's yearly salary.  And dedicated, enthusiastic employees are not easy to find.  Yet, employees who are bullied at work will almost certainly leave.  Some leave because of their health.  Others leave because the bully has succeeded in sabotaging their reputation. 

4. Unhealthy Employees Are Expensive.  Employers have campaigned to rid the workplace of smokers, who are more costly to insure.  Obese employees may be next on the list.  But what about bullied employees?  Targets are affected with depression, anxiety, post-traumatic stress disorder, which is especially common with male targets, and other stress-related illnesses.  Physiological illnesses, such as headaches and backaches.

5.  Infected-Workplace Syndrome.  As devastating as these effects can be, they can, and likely will, get worse.  Bullies are infectious and contagious.  Other employees who witness bullying behavior feel sympathy for their coworkers and guilt for doing nothing about it.  They shrivel up, just like the target, in the fear that the bully will turn his or her anger towards them next. 

Preparing for the Brain Drain by Hiring Right

Posted by Molly DiBiancaOn August 17, 2008In: Hiring, Interviewing

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By as early as 2010, the Baby Boomers will leave the workforce en masse.  As the "reliable" generation heads towards retirement, employers will be faced with a substantial need for new recruits.  And those employers who have the foresight to plan ahead know that recruiting starts now.  Otherwise, there will be nothing but college grads and retirees.  To prevent the "brain drain," the need for mid-level managers must be factored into hiring and recruiting decisions now.  social-media-community

More than ever, the hiring process is a critical element of success planning.  But hiring, of course, is no easy thing.  There are obstacles everywhere.  And, frankly, hiring should be a priority far beyond the Human Resources department.  It should be a priority for the C-Suite, too.  If senior management appreciates the fundamental need for good hiring decisions, there will be less resistance to implementing a full-fledged hiring program.  In an ideal world, all companies would have one. 

If you are one of the businesses fortunate enough to get buy-in from executive management, one of the best things you can do is to be highly selective in choosing the hiring team.  The authority to be involved in the hiring process, at any level, should be granted sparingly.  Treat the hiring team with the importance it deserves and don't let the undeserving join the team.

Select interviewers with purpose.  Not everyone should be permitted to interview.  Interviewing is hard. It involves a great deal of legal exposure. It's a great opportunity to capture the attention of the best and brightest--or to send them running out the door faster than you can say "signing bonus." 

Training as an Employee Perk? Yes, really

Posted by Molly DiBiancaOn August 17, 2008In: Employee Engagement, Generations: Boomers, Xers, and Millennials

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Employers are always looking for new ways to offer their employees perks and benefits.  Perks can be a double-edged sword.  On one hand, many think that employee retention can be directly correlated to the perks offered.  On the other hand, in difficult economic times, employers worry that they'll have to chose between keeping costly perks or keeping employees.  And to take away perks is an absolute morale killer.  (See The Real Price of Pulling Perks and 5 Free Ways to Reward Employees).j0438770

So what's an employer to do? We've talked before about some of the free perks that employers can use to keep employees.  Here's another type of perk that isn't free but that will give you a real return on your investment.  Training.

Yes, that's what I said, training.  Employees, especially Gen Y employees) want to know that they are making a contribution to their workforce.  Employees who are able to participate in meaningful work, as opposed to mind-numbing "busy" or "filler" work are far more likely to get engaged and have the sense of ownership that employers value so highly. 

Without continued development, employees are destined to get bored and lose their enthusiasm.  Unless employees are given continuous opportunities to develop new skills or to deepen their understanding of skills they already have.

This is a win-win for employers, too.  What more could you want?  Engaged and highly skilled employees?  Maybe it's more of an employer perk.

Knock It Off, Gen Y: 3 Ways You're Driving Your Boss Crazy

Posted by Molly DiBiancaOn August 16, 2008In: Generations: Boomers, Xers, and Millennials

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Gen Y, Gen X, Boomers.  No matter what generational label you've been assigned, everyone wants make a good impression at a new job.  Sometimes, in our eagerness, we unintentionally rub our new coworkers and bosses the wrong way.  Gen Y is particularly skilled at this.


Perhaps it's because they move at a hyperfast pace, leaving the rest of us with heads swirling.  Maybe it's a result of their extraordinary need for approval that they happen to be a little more eager than previous generations.  And maybe it's related to their assertiveness and impatience with the idea of a corporate food chain that makes them just jump right in instead of waiting their turn.

Don't misunderstand--these are all good things--in the right setting.  But at the wrong time, in the wrong place, to the right person, these habits might be misconstrued as, well, annoying.  Sort of like "Little Miss Bossy" from Roger Hargeaves' Little Miss series.

Instead of getting upset at me for calling it like I see it, why not listen to some advice on how to make sure you don't do it again. 


Do not interrupt someone while they're speaking.  Especially not if it's your boss who's speaking and especially not if your boss is trying to give you instructions or explain something to you.  Generally, when this happens, it's a sign that you should be listening--not talking.  If you have a question, just hold it until your boss asks whether you understand.  Interruptions are disrespectful, knock it off.


Do not "agree" or "confirm" another's conclusion unless you actually could have and would have reached the same conclusion totally on your own.  By nodding emphatically or saying "right, right" while someone else speaks, it indicates that you already know this information and, frankly, you are finding it quite boring to have to listen to it again.  I know, I know, you are really trying to show enthusiasm and team spirit.  This is not what is conveyed. So knock it off.


Don't be a show off by asking questions if you already know the answer.  This is the conduct of a six-year-old who asks her mother, "Mommy, am I pretty?"  Of course she knows that her mother thinks she's the most beautiful child that's ever lived--her mother tells her so every day.  The child just wants to hear it again.  And that's ok when you're six.  It's not so cute once you grow out of footed pajamas.  When you ask questions that you clearly understand already, it make you look like you are taking your bosses [highly valued and very limited] time to seek gratuitous compliments.  It's childish, knock it off.

Should a Four-Day Work Week Be Mandatory*

Posted by Justia AdminOn August 15, 2008In: Alternative Work Schedules

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A mandatory four-day work week could create substantial economic savings for employers.  For example, Wake County in North Carolina estimates that it will save approximately $300,000 per year on utilities by closing its offices on Fridays.

However, not everyone supports the idea of a mandatory four-day work week.  Some parents may have to pay additional costs for early morning childcare, parents of older children may be forced to miss evening activities like sports games, and as Molly DiBianca recently pointed out, four ten-hour days may just be too exhausting for families with small children.  Another objection, often made by taxpayers, is that customers have come to expect service five days a week, regardless of whether they have increased access Monday through Thursday.

Enter Birmingham, Alabama.  The city switched to a voluntary four-day work week for its employees on July 1, and the reception has been overwhelmingly positive.  Employees still have the option of working a normal five-day schedule, and the ones who decide to work a four-day week may choose which weekday they would prefer to have as their extra day off.  The frequently cited environmental benefits of a four-day work week remain—fewer cars on the road, less traffic during rush hour, and an overall decrease in gasoline consumption.

The voluntary schedule seems to address the major complaints about a mandatory four-day week.  If an employee is unable to work a condensed week, that employee could still work a traditional five-day week.  Other employees looking for a shorter commute, an extra day off, and savings on gas could take advantage of the shorter week.

Birmingham’s voluntary four-day week also solves the problem of customer access.  With only some employees switching to the condensed schedule, customers not only have access to services five days a week, but they also receive the added benefit of earlier and later access Monday through Thursday.

The largest problem with making the four-day work week voluntary is that offices will need to remain open and powered five days a week.  This will likely negate any potential savings on utilities and make the four-day work week significantly less attractive to employers.

Given these incompatible benefits, a four-day work week is not the panacea that will solve all of the economic and environmental problems in the workplace.  But if employers are willing to give up the potential savings associated with a mandatory four-day week, a voluntary four-day schedule like Birmingham’s might be a good alternative.

*Guest Post by David Fry

[Editor's Note: David is a rising second-year law student at Duke Law School with whom we had the privilege of working with this summer.  As evidenced above, David is remarkably talented and will surely make a great contribution to the practice of law when he enters the field officially.  Thank you, David!  md]

Video Resources: How to Use Google Alerts to Monitor Your Online Reputation

Posted by Molly DiBiancaOn August 14, 2008In: Background Checks, Hiring, Video Resources

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Employers use Google, Facebook, and MySpace to conduct informal and unofficial background checks on job applicants.  But what about the employer's online reputation?  Learn how to monitor your online reputation, as well as your business' reputation using Google's free tool, Google Alerts.

Facebook Users Beware: Employers Aren't the Only Ones Who Know How to Google

Posted by Molly DiBiancaOn August 13, 2008In: Hiring, Privacy Rights of Employees, Social Media in the Workplace

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FaceBook, MySpace, and other social network sites, have multiple uses. Of course, the traditional idea is that members gather to meet new people and share experiences.  As most recruiting and hiring managers are well aware, these websites can provide substantial insight into the personality and personal lives of job applicants.  image

The value in this hiring strategy is subject to debate.  William W. Bowser and I will be debating it ourselves in greater detail tomorrow in our audioconference, Click Here for Lawsuit: Applicant Screening With Google and MySpace.  Employers must balance the need to make crucial hiring decisions with the privacy demands of Gen Y.  The arguments against using the internet's resources as the basis for employment decisions are shrinking, though.  And, if the trends continue, employers who do not utilize the web in hiring may find that they're alone in that decision. 

A survey released yesterday reports that the use of social networking has just begun to get off the ground outside America.  In North America last year, the number of users increased by 9% compared to an increase of 25% worldwide. 

Social networking has seen growth not only in the number of members, but also in the number of ways it has been put to use.  For example, the National Law Journal's article, Social Networking Sites Help Vet Jurors.  The article details how many lawyers now incorporate a Facebook-MySpace background-style check into their jury selections.  The information that is available online about potential and seated jurors can be invaluable in selecting jurors, striking potential jurors, and even in crafting opening and closing arguments that will hit home for the jury-audience.

What is remarkable about this trend is the revelations that often come with the discovery of an individual's FaceBook or MySpace page. Over and over, when social networking is used as a means to find out the "real" personality, behavior, and preferences of others, whether it be a job candidate or a potential juror, the "real" version is drastically different from the version presented to the searching party. 

Sexual Harassment Ensures Survival of Human Race (in Russia)

Posted by Teresa A. CheekOn August 13, 2008In: Harassment, Sexual

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Sexual harassment in the workplace is considered inappropriate and unlawful.  Well, at least in this country it is.  But, according to a Russian judge, it is absolutely okay, and even an act of chivalry, to sexually harass your female workers. He reasoned that without harassment, the human racimagee would come to an end. 

Russia has no laws against sexual harassment, and only two Russian women have ever won a sexual harassment case.  And that’s not because it doesn’t happen there.  A recent survey found that “100% of female professionals said they had been subjected to sexual harassment by their bosses, 32% said they had had intercourse with them at least once and another 7% claimed to have been raped.”

How this serves to preserve the human race I'm not sure.  But it does give me another reason to appreciate the American workplace.

Affirmative Action To Be Reconsidered in Three States This Fall

Posted by Teresa A. CheekOn August 12, 2008In: Diversity

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Affirmative Action is back in employment-law news.  In November, voters in three states (Arizona, Colorado and Nebraska), will decide whether to end consideration of race in admissions to public universities, and in hiring and contract awards by state and local governments. California, Washington and Michigan have already passed similar initiatives. j0384726

Opponents of affirmative action argue that it is no longer needed and causes reverse discrimination against whites and Asians. Proponents argue that affirmative action is still necessary to provide assistance to historically oppressed minority groups.

All three proposed measures are under attack in court based on claims that the signatures needed to put the issue on the ballot were obtained through misleading signers about what the purpose of the measure was.

State measures ending affirmative action programs have no effect on the obligation of federal contractors and subcontractors to create and implement written affirmative action plans, because federal affirmative action requirements are imposed through executive orders signed by the President and regulations created and implemented by the federal Office of Federal Contract Compliance Programs.

Award Winning HR and Employment-Law Blog Posts

Posted by Molly DiBiancaOn August 11, 2008In: Internet Resources

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I was so inspired by a recent post by my fellow labor- and employment-law blogger, Jon Hyman, at the Ohio Employment Law Blog, that I'm going to copy it straight away.  Last week, Jon hosted the latest edition of the Blawg Review and did a bang-up job. In the spirit of the Olympics, he "awarded medals" to the great bloggers for that edition.  Nothing quite beats a great metaphor.


Although I'm not doing anything close to as comprehensive as Jon's post, I'm going to offer a mini-review and award my own gold medals, so to speak. What's that they say about the best form of flattery? Ok, fine, I won't outright steal it, but I'll take great poetic license with his idea.  Better?

Congratulations to all of the "winners" who continue to produce more and more "must read" material.

Winners of the "Insightful Post" Category:

Dan Schwartz at the CT Employment Law Blog posted an insightful piece on one of my favorite topics--fairness in the workplace.  Rachel Robbins at The Employment File for being smart and brave enough to recognize that Being a Supervisor Is Hard.  I wish all of my clients' supervisors would remember this when the going gets tough.  Supervisors get to be supervisors because they're better at the hard stuff.  It's a blessing and a curse but, either way, it's part of the job. 


Winners in the "Importance-of-Training" Competition:

Effortless HR shows how to retain employees with continuous training--even in a bad economy.  KnowHR also touts the importance of training, this time for bad behavior. The post makes a very convincing argument for the need to offer special classes like “Passive Aggressive Behavior for the Disaffected Manager” and “How to Make Yourself Look Like You’re Doing Something So You Can Keep Your Job.”  And YourHRGuy puts a real spin on the link between Gen Y and training.  Lisa's Generation Relations Blog has a guest post on the importance of sexual-harassment training as Gen Y enter the workforce without any prior professional experience.


Awards for the Most Helpful Internet Resource:

The Illinois Trial Practice Weblog's post on using Google Earth as a trial tool. The Legal Writing Profs Blog post alerting us to HeinOnline's new Facebook page, which apparently has oodles of resources and innovative uses of technology in legal research. 


The Posts That Gave the Best Real-World Advice:

Lynne Gaetner-Johnson's post, The "Please Advise" Habit, in which she advocates for the use of caution when using the phrase, "Please advise" in business correspondence.  Indeed, it is a bad habit for many.  But for some, it is code language for "I'm your superior and here's how I assert authority over you in a very passive-aggressive way."  Please, listen to Ms. Gaetner-Johnson's words of caution.  Patrick Williams at Guerrilla HR, has renamed Generation Y as Generation W, as in "What the Hell?", has a laugh-riot style post that nails the generational frustrations right on the head.  And EmployeeScreen IQ has a whole slew of posts on the importance of background checks and reveals just how prevalent falsified resumes really are.  This is a topic that William W. Bowser and I will be hammering home during this Thursday's audioconference on Using MySpace and Facebook to Screen Job Applicants.

Top 10 Reasons Why Employers Should Screen Their Applicants

Posted by Molly DiBiancaOn August 11, 2008In: Background Checks, Hiring

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On Thursday, William W. Bowser and I will present an audioconference on Applicant Screening With Google and MySpace.  We'll talk about whether the internet is a legal and ethical resource for use in the hiring process.  A necessary premise of the discussion, of course, is that applicant screening is a good idea in the first place.  Because, if it's not, we don't need to reach the Google-MySpace debate.  We believe that employers must make efforts to screen candidates before making their final hiring decision.    Top 10






1.  Resume Fraud.  An estimated 52% of applicants lie on their resumes.  If you are able to determine which applicants have misstated their credentials, you can eliminate them from the get-go without wasting any more time in the process.

2.  Limited Access to Information.  Employers do not want to provide any more information than what is required and are very hesitant to respond to a reference request.  But, at the same time, former employers often hold the key to the most relevant insight about the candidate.

3.  Background Checks Are Costly.  Many employers use an outside agency to perform background checks on potential employees.  And for good reason.  Background checks are complicated and time-consuming.  But, hiring an outside agency costs money and many small employers either cannot afford or have chosen not to dedicate the necessary resources to performing these checks.

4.  Compliance Issues.  Employers who do use an outside agency face their own set of problems.  The Fair Credit Reporting Act ("FCRA") set standards for employment screening conducted by consumer-reporting agencies and outside companies.  There is a list of compliance requirements triggered by the FCRA, including various disclosures an employer must make before, during, and after the background check has been performed.  The FCRA also carries substantial penalties for non-compliance. 

5.  Bad Apples Are Expensive.  Hiring is one of the most critical decisions a business will make.  Failure to carefully screen and select applicants can result in employees who are (1) not qualified to perform the work hired to do; (2) whose work habits are not in line with the organization's; (3) whose attitudes and personalities clash with coworkers, (4) hired under false expectations which later turns into poor morale and low productivity.  The U.S. Department of Labor estimates that the average cost of a bad hiring decision can equal 30% of the employee's potential earnings during the first year of employment.  But that estimate is low--many submit that the number is closer to 100% for non-management personnel and 150% to 200% for management. 

6.  Employee Theft.  The U.S. Chamber of Commerce estimates that theft by employees costs American companies $20 to $40 billion per year.  U.S. consumers absorb this cost at the yearly rate of $400 per working adult.  An employee is 15 times more likely than a nonemployee to steal from an employer.

7.  Claims of Negligent Hiring and Retention.  Employers can be sued and held liable if they fail to use reasonable care in the employment-selection process.  "Reasonable care" is dependent on not just whether the employer knew about the candidate's proclivities but also whether the employer should have known.  In short, failure to screen applicants and to use proper care in hiring can result in legal liability.

8.  Workplace Violence.  Some two million American workers are victims of workplace violence each year.  Certainly not every incident of violence could be prevented with applicant screening.  But if pre-employment checks could prevent a potential incident from happening in your workplace, wouldn't it be worth it?

9. Intellectual Property Concerns.  Intellectual-property theft is a very real concern, costing American employers anywhere from $200 million to more than $1.2 trillion annually.  As the workplace becomes more technology-based and employees become more technology-savvy, the risk of stolen trade secrets and other proprietary information will continue to escalate.

10.  Federal Anti-Discrimination Laws.  Of course, this is the biggest fear of most employers--that the person they hire will later "turn" on the company and file suit.  And there is good reason to worry.  Just ask Wal-Mart, which has been hit with several multi-million dollar lawsuits brought by employees in 2008 alone.

It's Saturday Today in Utah: 4 Day Work Week

Posted by Molly DiBiancaOn August 10, 2008In: Alternative Work Schedules

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Utah government employees finished their first four-day work week on Thursday.  Friday was a day off, an extra Saturday, really.  And today is Saturday Number Two.  Nice.  But is it too good to be true? I'm such a cynic.  Not that I've formed an opinion one way or another, I just happen to be a bit doubtful that it is the cure-all that it's being promoted to be.  Mostly, it's the "little things" that make me think twice. It seems to me that parents with small children will have the most difficult adjustment to make. 

For example, let's take a look at the reality of a day in the life of Utah state employees this week.  A ten-hour workday may run from 9 a.m. to 7 p.m.  And let's say we have a 25-minute commute. 

6:30:  Rise and Shineclock

7:45:  Depart from home

8:05:  Drop off kids at day care

8:20:  Coffee stop

8:55:  Arrival at office

9 am to 7 pm:  Work

7 pm:  Depart from work

7:50:  After picking up kids, arrive at home. 

8:50:  Dinner

Now, let's look at the somewhat obvious problems here. 

1.  Day care charges by the minute for time after 6 pm.

2.  Little kids don't eat dinner at 9 pm. 

3.  Little kids are grouchy after spending 11 hours at day care.

4.  Mom and dad are grouchy after a very long day.

Is it fair to say that parents with young children will face a very difficult four days, regardless of how well the work day goes.

Is a "Sweet Personality" an Essential Job Function for a Lawyer? Only If You're a Woman

Posted by Molly DiBiancaOn August 9, 2008In: Gender (Title VII), Women In (and Out of) the Workplace

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Lawyers have an image problem.  We're up against some serious stereotyping issues.  I can't tell you the number of times I've been asked, "What do you do," and replied, "I'm a lawyer," only to be met with good-natured giggling.  It happens a lot--especially on the weekends when I'm not wearing a suit and I look like a "normal person."  pigtails

I also hear, "You're too nice to be a lawyer."  What does that mean, really?  Is there actually a "niceness" qualification to practice law?  I don't recall that being mentioned when I went to law school.  Nor do I recall there being a question about my ability to be "sweet" on the bar exam. 

Apparently, I didn't take the same exam as the managing partner of Cohen Ponaini Lieberman & Pavane, an intellectual-property firm in New York.  A female attorney who was terminated from the firm has filed suit against the firm for gender discrimination and retaliation.  According to her complaint, the attorney was told that she would never make partner because the male partners were "uncomfortable" with her.  She alleges that she was reprimanded for being insufficiently sweet in her dealings with a paralegal. 

The court has ruled that the alleged comment is enough for the case to proceed.  In its opinion, the court wrote that the comment, if made, is sufficient to demonstrate that the partner had stereotyped women as "sweet and non-aggressive" and that the former attorney did not fit that stereotype.

As reported by the ABA Journal reports, the firm stands by the termination on the ground that the attorney was "insulting and unprofessional" in her dealings with others and that she'd had numerous personality conflicts with numerous staff members and other lawyers. 

I suppose that she could have been a royal pain to her co-workers and staff and, also, not be a very sweet person.  It's sort of implied, isn't it--that you're probably not seen as being sweet if you can't get along with others.  Just a guess. 

So did the managing partner make a mistake in his choice of adjectives?  If he'd called her a royal pest, there'd be no gender-discrimination claim.  If he'd called her something less flattering--a jerk, for example, he'd also not be getting sued.  But, if he'd called her the "b-word," that would be a different story, wouldn't it? 

I'm not sure how this lesson could be incorporated into supervisor training, though.  Do we need to compile a list of bad names that don't evoke gender bias?  Well, it's an idea.

Get Your Google On: How to Create an iGoogle Account

Posted by Molly DiBiancaOn August 9, 2008In: Video Resources

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This is the second video in our new video series, "Making the Most of the Blogosphere."  The first video, called "What Is a Feed Reader?  And why do I care?", is an overview of an absolutely necessary tool for anyone interested in getting the biggest bang for their buck when it comes to surfing the blogosphere. 

In this video, "Get Your Google On: iGoogle," you'll learn why an iGoogle account is your key to the internet and how to set up an account for yourself. 

In Video 3, we'll put that new account to good work with Google Alerts.  Once you are an official, card-carrying iGoogle member, the first thing you'll want to do is set up some Google Alerts so you can keep an on the web, even when you're not online.  Think of Google Alerts as your own personal internet assistant.

In Video 4, you'll learn how to set up a feed reader, which you'll surely want to do after watching the first video and, after watching this video, will now be able to do using your new iGoogle account. 

Stay tuned!

All of the videos can be seen in the "Resources" tab on the top of the page, under "Video Resources," or at the Delaware Employment Law Blog YouTube Channel.

And In This Corner. . . Susan From Accounting. Office Rage in the Ring

Posted by Molly DiBiancaOn August 8, 2008In: Jerks at Work

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Workplace bullying is often seen as a top-down problem, with supervisors largely to blame for bullying their reports.  But bullying is also a lateral issue as seen in colleague-to-colleague harassment.  The conduct can even go up the chain of command--bullies don't tend to follow the rules that don't suit them. 


Colleague-to-colleague bullying can overlap with on-the-job anger known as "desk rage."  Although the two can include the same type of conduct, desk rage is generally considered a short-term or one-time outburst, whereas bullying involves a course of conduct repeated over a period of time. 

Desk rage has been in the news since a study released in July reported an increase in angry outbursts in the workplace.  Desk rage can take many forms--everything from the "silent treatment" and social exclusion, all the way to workplace violence, fall into this category.  The most common scenario involves abusive or threatening conduct such as cursing and screaming at another employee in the workplace. 

So why the increased hostility at work?  There are lots of reasons that this inappropriate conduct has become more common.

Is this conduct a result of tougher economic times?  Maybe.  It's certainly conceivable that employees who sit in an extended and difficult commute while shelling out more and more for gasoline, are on the edge by the time they get to the office. 

And employees facing financial difficulty at home are already under a high level of pressure.  As the safety net of financial security unravels, people begin to point fingers at others, blaming an incompetent or callous organization or leader. 

But the cause of desk rage isn't entirely economics.  Another reason may be generational. As older boomers enter retirement and the workplace becomes more populated by employees who are used to wearing their emotions on their sleeves. 

And who are the worst offenders?  Overachievers.  Type-A personalities with impossibly high standards tend to expect more than what is reasonable from others, as well.  Putting together the evidence, it appears that you are most likely to be spit on, cursed at, or slapped by that super-smart younger co-worker, right?

HR Summer School: ADA 103 (part 2 of 2) Reasonable Accommodations

Posted by Molly DiBiancaOn August 8, 2008In: Disabilities (ADA), HR Summer School

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The HR Summer School Back-to-Back Series continues today with the second of two parts of ADA 103. Reasonable accommodations under the Americans With Disabilities Act (ADA), are not easy to manage. To make sure this difficult topic gets adequate coverage, we've split this class into two parts. The outline includes both parts and is provided for your later reference.


The request is the first step in an informal, interactive process between the individual and the employer. In some instances, before addressing the merits of the request, the employer needs to determine if the condition qualifies as a disability under the ADA.


The purpose of the interactive process is to clarify what the individual needs and to identify the appropriate accommodation. The employer may ask relevant questions to enable it to make an informed decision. 

The end goal during this process is for the employer to learn what obstacles the employee is facing as a result of his or her disability and then try to craft an accommodation to address those obstacles. Often, the nature of the disability is not relevant to the discussion.


The employer may choose the least expensive or burdesome accommodation where more than one exist. As long as it is effective, the employer has the final word on selection. Of course, the employee cannot be required to accept the accommodation if he or she does not want it. But, at the same time, where an employee needs a reasoanble accommodation to peform an essential function of the job or to elminate a direct threat, and reufses to accept an effective accommodation, he or she may not be qualified to remain on the job.

The only legal limitation on an employer’s obligation to provide an accommodation under the ADA
is when it would cause “undue hardship” to the employer. This is a much higher standard than the
standard appied to requests for religious accommodations made under Title VII.

“Undue hardship” means signficant difficulty or expense. The inquiry focues on the resources and
circumstances of the particular employer as compared to the cost or difficulty of providing the

This term refers not only to financial difficulty, but also to requests that are unduly extensive,
substantial, or disruptive, or those that would fundamentally alter the nature or the operation of
the business. The determination is made on a case‐by‐case basis.



The employee works as a cashier at a retail grocer. The employee tells her employer that she has a disability that makes her tire easily and requests that she be given two additional 15‐minute breaks per shift to rest. The employee has Lupus but does not reveal this to the employer.
The request does not sound terribly unreasonable and the employer may be inclined to grant it. But, before concluding whether that this is the appropriate decision, the employer should first engage in the interactive process in an informal discussion with the employee. What the employer needs to know is what obstacles the employee is trying to eliminate. Here, the obstacle is that she becomes fatigued easily. Additional rest breaks may be a reasonable accommodation but there may be others, as well. For example, what if the emloyer offered to provide the emloyee with a stool so she could avoid standing throughout the shift? If the employee agreed that this would help eliminate the obstacle, then it is a reasonable accommodation.

Also, note that the employer never needed to inquire about the exact nature of the disability because the obstacle is all that mattered to the discussion. For example, an employee who works as a cashier tells her employer that she has a disabiltiy that reuqires an accommodation. She  requests that she be given two additional 15‐minute breaks each shift because her disability causes her to become easily fatigued.

 Making existing facilities accessible; i.e., building a wheelchair accessible ramp between two rooms that are adjoined by two stairs.

 Job restructuring; i.e., reallocating marginal job functions that are not necessary to the position but are preventing the employee from performing that job.

 Part‐time or modified work schedules; i.e., allowing an employee to take 45‐minute
breaks to recover from nausea triggered by medication.

 Acquiring or modifying equipment; i.e., providing an assistive listening device to the
employee’s telephone.

 Changing tests, training materials, or policies; i.e., permitting an employee with insulin‐dependent diabetes to eat when needed to adjust her blood‐sugar level despite a policy that employees are not permitted to eat or drink at their workstation.

 Providing qualified readers or interpreters. 

 Reassignment to a vacant position. This is the accommodation of last resort and is
only required where it is first determined that (1) there are no effective accommodations that will enable the employee to perform the essential functions of his current position, or (2) all other reasonable accommodations would impose an undue hardship. The employee must be “qualified” for the new position but he does not need to be the best‐qualified individual for the position in order to obtain it as a reassignment.

 An employer does not have to eliminate an essential function; i.e., a fundamental duty of the position.

 An employer does not have to lower production standards—whether quality‐related or quantity‐related—that are applied uniformly to employees with and without disabilities.

 An employer does not have to provide personal‐use items needed to accomplish daily activities both on and off the job. For example, an employer is not required to provide an employee with a prosthetic limb, a wheelchair, glasses, hearing aids, or similar devices if they are also needed off the job.

Beijing Takes the Fashion-Police Concept to a Whole New Level

Posted by Molly DiBiancaOn August 7, 2008In: Dress & Attire

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For all of the dress-code talk lately, I'd guess there's no dress code quite like the one in Beijing.  In preparing for the Olympics, Beijingers have been instructed to put on their Sunday best.  And for those HR Specialists who thought that specificity in dress codes is just plain impossible, there are some Beijing government officials who would disagree.


Here are some of the examples of the attire-centric advice contained in the 4 million booklets that have been distributed:

  1. Do not wear too many colors (generally not more than three);

  2. Avoid white socks with black shoes;

  3. Pajamas and slippers should not be worn in public.

[Source: AP at MSNBC,  Beijingers Get Dress Code Advice for the Olympics]

There has been no mention, though, of a prohibition against those man-shorts that John Phillips and I have both discussed.  What can we say?  Fashion is tricky--for employers and for government of the largest country in Asia.


Prior Dress-Code Posts:

I'm Too Sexy For This Job: The Beginnings of a Failure-to-Hire Lawsuit

“Are You My Lawyer or the Janitor?” The lawyer’s dress-code pendulum swings back.

Gender Discrimination & Dress Codes. Who wears the skirt, I mean, pants in your office?

What Not to Wear to Work: More Style Rules for the Modern Worker

What Does It Take to Be "Best Place to Work"?

Posted by Molly DiBiancaOn August 5, 2008In: Employee Engagement, Locally Speaking, Wellness, Health, and Safety

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Want to know what it takes to be voted best place to work?  Ask the healthy employees of Wilmington, Delaware-based internet bank, ING Direct.  The healthy-factor is no coincidence.  ING takes its employees' wellness very seriously.


The bank has a full-time doctor and nurse in the building for employees' immediate access.  And employees can use the company's full-scale gym.  Known as The Energy Zone, the gym offers a variety of group fitness classes such as yoga and spinning, and even organizes a running club.  For $10 per month, employees can use the gym before, during, and after work--including weekends.  The Wellness Center offers weight-loss programs, access to personal trainers and cholesterol monitoring. 

According to the respondents, the good stuff doesn't stop at the doors of the Wellness Center, though.  81% think they have a great physical work environment.  And 85% feel their benefits package is good compared to others in their industry.  92% said they are proud to work for ING and 81% said they are motivated to give their best.  86% believe in the mission and the strategy--reporting that they feel that the company is moving in the right direction.

The bank is known for doing things its own way, which has turned out to be a very effective way for ING.  Since it opened in 2000, the bank has grown to more than 6.8 million account holders.  All without a single branch.  ING also prides itself in treating all of its 1,108 employees equally.  Instead of formal titles, employees work in a certain department--where managers sit in cubicles next to their direct reports.

Innovation is working for ING--and for its healthy employees.

HR Summer School: ADA 103 (Part 1 of 2) Reasonable Accommodation

Posted by Molly DiBiancaOn August 5, 2008In: Disabilities (ADA), HR Summer School

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The HR Summer School Back-to-Back Series continues today with the first of two parts of ADA 103. Reasonable accommodations under the Americans With Disabilities Act (ADA), are not easy to manage. To make sure this difficult topic gets adequate coverage, we're splitting this class into two parts. The outline includes both parts and is provided for your later reference.

I. General Principles

The ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities, except when such accommodations would cause an undue hardship. In general, an accommodation is any change in the work environment or in the way things are customarily done that enables the individual to obtain equal employment opportunities.

A. Three categories of “reasonable accommodations”

· Modifications or adjustments to the job-application process;

· Modifications or adjustments to the work environment, or to the manner or circumstances under which the position is normally performed; or

· Modifications or adjustments that enable a covered entity’s employee to enjoy the benefits and privileges of employment.

B. Two types of workplace barriers that can be addressed

· Physical obstacles, such as inaccessible facilities or equipment; or

· Procedures or rules, such as rules about when work is performed or when breaks are taken.


II. Employee Must Request Accommodation

In general, it is the empoyee’s obligation to notify the employer that an accommodation is needed. Either the employee or a representative “must let the employer know that he or she needs an adjustment or change at work for a reason related to a medical condition.”

A. Form of the Request

No particular form or phrase is required. The request need not use the phrase “reasonable accommodation” and it need not mention the ADA.

The request does not need to be in writing. The request may be made in conversation. But the employer is well advised to confirm the individual’s request in a letter or memo. Alternatively, the employer may ask the individual to fill out a form or submit the request in writing—but cannot ignore the first request.

B. When a Request May Be Made

The individual may request a reasonable accommodation at any time during the application process or during employment. By not requesting an accommodation at the time of hiring, the employee is not later barred from making a request.

An employer should respond to the request as expeditiously as possible. The interactive process, discussed in the second part of this topic, should also be moved along as quickly as reasonably possible. Unnecessary delays may violate the ADA.


Prior HR Summer School Posts:

ADA 102: What Does the ADA Require

Calling All Students, School Is Now In Session! ADA 101

Alternatives to the Four Day Work Week

Posted by Molly DiBiancaOn August 4, 2008In: Alternative Work Schedules, Flextime, Telecommuting

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The popularity of a compressed workweek has skyrocketed. Workplace flexibility has long been heralded as a way to bolster employee retention. Alternative work schedules have even been lauded as a key to keeping women in the workplace and off the off-ramp.

And now, with towns and cities across the country adopting a four-day work week, the trend towards workplace flexibility isn't going anywhere anytime soon. But the four-day work week isn't the only option. Here are some other options provided by When Work Works, a project of the Families & Work Institute:


Traditional flextime allows employees to chose their starting and quitting times within a range of hours surrounding core-operating hours. Daily flextime involves the same concept but allows employees to select their start and end times on a daily basis.

A compressed work week enables employees to work their full schedules over fewer number of working days. Usually this means 10 hours per day for 4 days, or 80 hours over 9 days. "Summer-hour" schedules add an hour to workdays Monday through Thursday, and end work at 1 pm on Fridays.


Time off during the workday to address personal and family issues includes time off for anticipated issues, such as parent-teacher conferences, or unanticipated issues, such as waiting at home for a repairman or delivery.

Paid time off to care for children permits employees to take off for a few days to care for a sick child without losing paid time.

Flex-Careers include multiple points for on- and off-ramping over the course of one career or working life. This can include formal leaves of absences and sabbaticals, as well as taking time out of the workforce.

Flex-Place is defined as working some or most of the employee's working time at a location other than the employer's main place of business. Telecommuting is included in this category.

Increase in Religious-Discrimination Claims Prompts EEOC to Issue Updated Guidance

Posted by Molly DiBiancaOn August 4, 2008In: Religious (Title VII)

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Religious-discrimination claims are on the rise and that doesn't seem to be changing any time soon.  Nationwide, charge filings with the U.S. Equal Employment Opportunity Commission (EEOC), have risen substantially over the past 15 years, doubling from 1,388 in FY1992 to a record high of 2,880 in FY2007.

Filings by Muslims increased from 398 to 909 between FY1997 and FY2007--the largest increase of any major religious group during that period.  In response to the trend, the EEOC recently updated the section of its Compliance Manual dealing with religious discrimination. The agency also issued a best-practices guide for employers, including new references to headscarves.  In a related document, the EEOC says,

Requests for accommodation of a religious belief or practice could include, for example: a Catholic employee requesting a schedule change so that he can attend church services on Good Friday; a Muslim employee requesting an exception to the company’s dress and grooming code allowing her to wear her headscarf, or a Hindu employee requesting an exception allowing her to wear her bindi (religious forehead marking); an atheist asking to be excused from the religious invocation offered at the beginning of staff meetings; an adherent to Native American spiritual beliefs seeking unpaid leave to attend a ritual ceremony; or an employee who identifies as Christian but is not affiliated with a particular sect or denomination requests accommodation of his religious belief that working on his Sabbath is prohibited.

Popularity of the 4-day Week Continues to Grow

Posted by Molly DiBiancaOn August 4, 2008In: Alternative Work Schedules

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The four-day work week has enjoyed continued popularity across the country.  Some of the recent cities and counties to implement or move closer to implementing a compressed work week for public employees are listed below.  image

Arizona:  Queen's Creek has implemented the 4-day week on a trial basis. The town's government offices are open extended hours Monday through Thursday and, with the exception of essential services, are closed on Friday.  The plan was initiated to boost employee morale at a time when many employees have been subject to salary reduction and hour cut-backs.

Florida:  Manatee County has begun to make the switch to a 4-day work schedule on a voluntary basis, allowing its various agencies to make the decision independently.  The Central Community Redevelopment Authority is the latest to implement the alternative schedule.

New Hampshire:  New Hampshire's gubernatorial candidates would consider authorizing a four-day work week and telecommuting for state workers to save energy costs. But Democrats John Lynch and Katy Forry and Republican Joseph Kenney would not support a blanket telecommuting policy for all.

New Mexico: Torrance County is considering switching to a 4-day, 10-hour workweek to help employees with the cost of fuel. 

Pennsylvania:  Westmoreland County officials are considering a proposal for a flexible scheduling system so staff could work four-day work weeks as a means of reducing their travel expenses.  The Recorder of Deeds, Tom Murphy, who pitched the compressed-week idea, says he was motivated by hearing his employees talk about the price of fuel and how it affects their bottom line. 

Tennessee:  Tennessee will follow in the footsteps of Utah on Monday, August 3, 2008, when it implements a four-day workweek for all state employees.  Unlike Utah, though, Tennessee's program is voluntary.

NYT Says the Man-Short Is Headed to an Office Near You

Posted by Molly DiBiancaOn August 3, 2008In: Dress & Attire, Policies

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Coworkers beware.  Your male colleagues may be showing a bit more skin this summer.  According to the New York Times, it's just a matter of time before your male colleagues start showing up to work in a suit jacket, shirt and tie, and . . . shorts.  Yes, that's correct.  Shorts.  

Interestingly enough, the paper said the same thing this time last year about the line of suits that had been produced for women and that featured knee-length shorts.  I recall there being an actual debate about whether the author of the article lived on the same planet as the rest of us.  There was also a mild interest in the idea based on the heat factor.  Indeed, there was a little flurry of excitement over what seemed to be a new line in the sand when it came to business attire. 

Picture courtesy of the NYT

In our office of roughly 200 people, one woman was nervy enough to give it a try.  And she looked great.  She's also a size 0 and stands 5' 10".  She looks great in a parka with mittens and snow boots.  It's virtually impossible for her to not look great. 

So, pardon me NYT, I mean no disrespect, but I have my doubts about the level of interest most men will have in the shorts-suit concept.  If for no other reason but cost.  Gen Y are the potential consumers for this latest fashion development.  And I'd be willing to bet that if they have to drop a chunk of change on a suit for a new job, it'll be for a suit they'll actually be able to wear.  It's difficult to imagine the young man who would forgo the navy blue standard in lieu of a khaki-colored pair of shorts and matching jacket.  Let's face it--he'd rather spend his money on something else, anything else, other than a suit in the first place. 

Of course, if a male colleague showed up to work wearing the shorts-suit styled like the gentleman's in the picture, above, he may be laughed out of the office, black dress shoes, white ankle socks, and all, before he had a chance to explain that the NYT had given his outfit the official thumbs up. 

November 12: Wage and Hour Master Class

Posted by Molly DiBiancaOn August 2, 2008In: Seminars, Past

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Scott A. Holt and Molly DiBianca will be presenting a full-day, fast-paced, and highly interactive seminar on wage-and-hour compliance to employers on November 12, 2008.  The federal Fair Labor Standards Act ("FLSA"), has been the basis of newsmaking class-action lawsuits across the country, resulting in astronomical jury verdicts and settlement figures.  As a business owner, executive, or HR Generalist, the FLSA is an essential employment law with serious--but avoidable--consequences.

This is a great way to get up to date on the topic or to jump in, feet first, if you're new to the ins and outs of this important federal law.  The Seminar Agenda is packed with coverage of the most misunderstood and difficult-to-apply aspects of the law.  Just a few of the topics include:

  • how to manage compensation for eight activities that have recently faced court challenges, such as volunteer time, meal and rest breaks, and traveling;
  • when to pay overtime and how to control overtime abuse;
  • learn how bonuses, tips, commissions, and other pay differentials should be calculated into overtime compensation;
  • what it really means to be an exempt employee and how to determine whether your employees have been misclassified, and what to do if they are.

The seminar will be held on November 12, 2008, at the Holiday Inn Select in Wilmington, Delaware.  Online registration is open and the complete agenda is now available.  The cost is $327 per person, or, if two or more people from the same organization attend, the cost is just $227 per additional attendee.  The cost of registration also includes comprehensive materials that you can use as a desktop reference.


M. Lee Smith's Master Class seminars are one of the only ways to get in-depth access to the most challenging employment laws.  And that probably explains why seats fill up so quickly, so be sure to register soon.  The FLSA Master Class Brochure contains all of the pertinent details, as well as a topic overview.

What Not to Wear to Work: More Style Rules for the Modern Worker

Posted by Molly DiBiancaOn August 2, 2008In: Dress & Attire, Generations: Boomers, Xers, and Millennials

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Workplace attire is a topic that just doesn't seem to go away. Dress codes and style rules for the modern worker get continuous coverage in the media.  Apparently, fashion is not just for the fashion columns anymore.  Fashion is a part of the business world, like it or not.  This modern-day fashion challenge is especially prevalent with Gen Y employees. 

Gen Y is known for its casual approach to work attire.  A generation that grew up wearing flip-flops and baring their belly rings can be particularly defiant of a conservative dress code.  The Millenial mantra for fashion may be coined, "Comfort Is King."  But that position often conflicts with the expectations of management. 

It can also prevent Gen Y job candidates from landing the job in the first place.  Candidates who come to an interview dressed in clothing that stands out as casual, trendy, or "young" will have a more difficult time making the cut.  And they may never know why. 

So what's a 21st-century fashion savvy job seeker to do? Generally speaking, don't take chances.  The interview is not the place to demonstrate your appreciation for cutting-edge couture.

And what about the rules of engagement for employers?  Although some will surely disagree, my position is to err on the side of caution.  If a potential employee comes to the interview with hot pink fingernails and Cyndi Lauper-style eye shadow, don't assume that she'll magically know better by the time she arrives for orientation, or that she'll "get the message" once she start work and sees that her colleagues are all dressed in more conservative garb. They won't.

Gen Y is known for its fantastic sense of entitlement and are unlikely to be particularly understanding or appreciative of the message that their clothing choices are unsatisfactory.  So, if you hire a candidate who makes his first impression by wearing a vintage Van Halen t-shirt under an Armani suit blazer, just be aware that you'll either have to accept his particular style choices or be prepared to have the uncomfortable "dress-code discussion" that will inevitably be required.

Accenture has come up with a great way to communicate its dress code and, with any luck, to prevent that dreaded conversation from ever being necessary in the first place.

Communicating Dress Code Policy to Gen YHow to Manage Millenials: Dress Codes

Related Posts on Dress Codes:

I'm Too Sexy For This Job: The Beginnings of a Failure-to-Hire Lawsuit

“Are You My Lawyer or the Janitor?” The lawyer’s dress-code pendulum swings back.

Gender Discrimination & Dress Codes. Who wears the skirt, I mean, pants in your office?

The Real Price of Pulling Perks and 5 Free Ways to Reward Employees

Posted by Molly DiBiancaOn August 2, 2008In: Employee Engagement

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Good employees are hard to find.  And employers know it.  So, to attract and retain the best talent, employers have implemented benefits and perks in every shape and size.  Wellness Programs

have been lauded as a way to offer employees additional perks at work while, at the same time, producing a healthier, happier, and less expensive workforce.

But wellness programs aren't the only type of benefit offered in addition to the standard health-care plan. A company car, employer-subsidized day care, and the like are all pitched as benefits that employers hope will attract the best of the best.  But what happens when times are tough and employers need to make cut-backs?  These benefits are often the first in line at the chopping block.  As it turns out, though, this may not be the best plan of attack.

Reneging on an offered benefit is the equivalent of a breach of the employee-loyalty contract; and it can have serious consequences on employee morale.  When an employer eliminates an employee-perk, employees often feel as if they've been "tricked."  Unfairness is another common product of the decision to remove perks that the workforce has come to associate as an integral part of the compensation package. 

But, at the same time, employers know that the modern employee expects these kind of benefits.  They are what has landed Google on Fortune 500's "Best Places to Work" list for the last two years. Competition for top producing employees requires employers to offer something.  So what to do?  There is a middle ground.  Especially in periods of economic hardship, employers must be creative to ensure that they remain competitive while avoiding the counterproductive effect sure to occur when perks are pulled.

Here are a few examples of benefits that, because of their low-cost, carry a similarly low risk of being cut at the first sign of hard times. 

  1. Peer recognition.  Think of this as an Employee-of-the-Month program with a twist.  Instead of having management nominate an employee for exceptional work, which often results in little more than embarrassment and ostracism for the recipient, have employees do the nominating.  Non-winners take pride in their nominee and the nominee is more likely to value the award when it comes from his peers.
  2. Casual or Dress-down Fridays.  These don't have to happen every week.  Instead, try once a quarter.  If it is something different, employees are more likely to be excited about it.
  3. Professional Speakers.  Professionals will often come to your organization and present to your employees at little or no cost.  The benefit to the speaker is the potential business and networking opportunities.  Financial advisors, for example, can offer your employees valuable and practical information. 
  4. Placement Incentives.  Offer employees a reward, whether cash or time off, if they refer a job candidate who is hired and stays at the organization for six months.
  5. Teach the Teacher.  When an employee has a particularly notable success, have him share the key processes with others in the group.  He'll be pleased with the recognition and his peers will appreciate the insight.


The best way to reward employees is one you already know--saying "thank you."  Showing gratitude regularly is the single best way to develop a positive relationship with your workforce and to build employee engagement.  And that is always free.