Delaware Employment Law Blog

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

2008-08-20T05:02:36Z

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.

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

2008-08-20T04:17:58Z

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).

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

2008-08-19T14:26:03Z

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

2008-08-19T00:59:18Z

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.

Google

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 Google.com. In short form, all you need to do is direct your web browser to www.google.com. 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 http://blogsearch.google.com.

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

2008-08-19T00:09:46Z

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.

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

2008-08-18T02:13:55Z

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.

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

2008-08-17T23:23:44Z

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).

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

2008-08-16T20:19:37Z

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.

One

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.

Two

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.

Three

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*

2008-08-15T16:42:13Z

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

2008-08-14T05:04:30Z

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.

http://www.slideboom.com/presentations/15998/Google-Alerts-by-Delaware-Employment-Law-Blog

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

2008-08-14T03:21:00Z

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.

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)

2008-08-13T21:10:44Z

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 race 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

2008-08-12T17:05:47Z

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.

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

2008-08-11T21:27:37Z

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

2008-08-11T18:59:17Z

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.

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.