Delaware Employment Law Blog

Every workplace has a standard cast of characters. They're mirrored in sitcoms and movies and are humorous because they're based on truth. The office jokester, the mother hen, the imposing father figure, the meddlesome middle child.  All of these personalities can be seen in just about any workplace.  Some employers have tried to tap into this dynamic as a way to better organize teams and to tackle inter-office personality conflicts.  Recently, T-Mobile commissioned an organizational psychiatrist to delve deeper into its own personality types. 

The resulting data, compiled in the T-Mobile Workplace Motivation Report, concluded that 15% of those interviewed found the "office joker" was an un-motivating influence in the workplace, while 25% said that the can-do attitude has a positive effect on morale.  The NYT recently reported that some companies have retained experts to help executives understand the role that birth order may have in their office politics.  First-borns, for example, have dominant personalities and have a more difficult time accepting directions from others.  Middle children, on the other hand, tend to be peace-makers and often compromise their own needs for the sake of keeping others satisfied.

Pardon me for saying so but, Duh!  Is this really a new insight to Corporate America?  I can't believe it.  If you didn't know that personality types play as big a role on the unofficial (and official) workplace hierarchy, then shame on you.  The workplace is the closest you can get to recreating the annual holiday scene, where all of the extended relatives are gathered together to drive one another totally bonkers--in a good way, of course. 

Can your color preferences provide an indication of your ideal job?  Seems unlikely, I know.  But try the Color Career Counselor at careerpath.com and maybe you'd reconsider.  In short, you are presented with several color swatches (on the screen, of course), and asked to choose the color you like to look at the most, the least, etc.  Now, this is not the same thing as which color you'd paint your bedroom in or what color you'd never be caught dead wearing--it's a more purist angle.  Simply, which one feels right when you look at it? 

After you take the 5-minute-or-so test, you are e-mailed a summary of your results.  I was positive that the test showed nothing.  I couldn't even say that I had a certain response for many of the choices--I was hesitant on most. 

Well, lo and behold, I was wrong.  I cannot attest to the "science" behind the test but I was shocked at how dead-on the results had me pegged!  It identified my "best occupational category" as a "creator" because I am "nonconforming, impulsive, expressive" and others.  A lawyer, believe it or not, in in that category.  As are corporate trainer, author, and editor, all of which I do and enjoy regularly. 

Ok, so maybe it's a coincidence.  But let's look at the "2nd Best Occupational Category."  Persuader.  No, really, I'm not kidding.  The key personality traits associated with this category include "witty, competitive, sociable, talkative, ambitious, argumentative, and aggressive."  I would agree strongly with each one except for competitive, which I tend to have a deficiency in.  But the rest?  Yes, that's me in a nutshell.  As you can imagine, lawyer certainly falls within this category. 

The most striking part of the report, though, was the last sentence.  It described me and others with similar color preferences as:

They enjoy working with others inside organizations to accomplish goals and achieve economic success.

Ummm, hello? That, in a nutshell, is exactly what I do for a living!  So does this mean that the employee-placement test of the future will involve fabric swatches or paint chips? 

Recently, I was discussing a company's internal training program with its HR Director.  Administrative professionals are required to earn a certain amount of "credits" per year through the internal program.  Full classes are offered in the Fall and Spring and a partial class schedule during the Summer.  The topics are varied and include general software training, such as how to use styles in Microsoft Word, job-specific applications, such as how to write a certain report in more quickly and efficiently, and soft skills, such as organization and time management.  More than 70% of the training, though, falls into the first category, software-specific. 

As we discussed this in more detail, I learned that some of the problems with the program was the unequal results it seemed to produce.  Some of the attendees felt that the courses were far below their skill set and that it was truly painful to sit through the same Microsoft Excel course year after year without learning anything new.  Yet, the HR Director had come to find out that some employees, who had been with the organization for years, did not possess even the most basic software skills.  

The HR Director wanted to know how this had happened and what could be done to correct it?  After the time and energy the organization had devoted to creating and implementing the program, which had been in place for a number of years, it was fair to say that the return on the company's investment was zero, at best.  If anything, the program was actually a loss.  They paid for instructors, both high-cost outside trainers and internal IT staff whose time could have been spent on other things.  The employees were taken away from their "real" work for at least 12 hours a year (the minimum number of credits each employee has to earn per year).  And, the lost potential of having an entire workforce who had actually learned the materials and who should have been performing at a much higher level. 

Turning to the first question--how had this happened?  Certainly, there are a lot of ways to point fingers.  The employees didn't take the classes seriously; they didn't have the initiative to develop their professional skills; and they didn't speak up if they were not able to grasp the material or follow along during the instruction.  And what about the trainers?  Shouldn't they have known that their students had drifted out in space 5 minutes after the class began; shouldn't they have seen the dazed look in the students' eyes; shouldn't they have questioned why the same, advanced-level employees were returning to a class they'd already taken several times; shouldn't they have pushed for a more advanced curriculum offering?

Should've, could've, would've.  Yes, all of those things should have happened.  But they didn't.  There is one other thing, though, that didn't happen.  And this, in my opinion, was the root cause of the program's dysfunction. 

There was no assessment.

Students get credit regardless of whether they left with any increased knowledge. Students couldn't test out of programs that were below their skill level.  Basically, so employees could play Scrabble on the computer during the class, as long as they showed up to 12 hours of classes each year. 

This, in my opinion, was the fatal flaw of the program.  As Stephen Covey said:

"Accountability breeds response-ability."

There were no checks in place to make employees accountable for the knowledge they'd just been given.  And employees who did take the knowledge were rewarded with a big, fat, nothing.  There was no "A+" or gold star at the end of the tunnel.  They just returned to their desks and hoped that the information they'd just learned would help them in some way.  Wow, what a waste!

So, how can it be fixed?  Easy!  Require attendees to take and pass a skills assessment at the end of the class before they will be awarded credit.  If a large percent of the class fails the assessment, the training and the trainer need to be reevaluated--it's likely that the lesson was not well communicated.  But if most do pass the assessment test, the ones who do not should not be awarded credit.

But they should be given another chance.  Because, remember, the goal is to get the students to actually understand the material--not to trick them into passing or failing a test.  So, if a student does not pass the assessment test, they (and all students) should be given take-away materials that they can reference and, when ready, try again.  The take-away should be detailed instructions--probably more detailed than the actual class and used as a reference for later.  Or video tutorials can be made available for students to watch.  Videos can be created internally with a product such as Camtasia Studio, or purchased from a commercial site, such as Lynda.com.  The videos can be hosted by the company's SCORM system, an internal server or intranet, or even YouTube.  The point is to get the information to the students for them to study and then to retest--successfully.

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:

• Ron Bower, Vice President and Director of Talent Sourcing at AmTrust Bank on Developing Employee Referral Programs
• Keith Greene, former Vice President of Workforce Readiness at SHRM on developing strong partnerships with background screening organizations
• Michael Sankey, Founder and CEO of BRB Publications on how to search criminal records.

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

A disgruntled airplane pilot sued the Federal Aviation Agency (FAA) seeking to have his pilot’s license reinstated. The FAA terminated his license after the pilot failed a drug test. The pilot claimed that there was insufficient evidence to support his termination. The suit made its way to a federal appeals court after an administrative hearing and the National Transportation Safety Board affirmed the FAA’s decision.  The federal court, I'm glad to say, upheld the termination decision, marking a sad day for crack-smoking employees in highly safety-sensitive jobs.

Mark Toth of the Manpower Employment Blog has a great summary of the case in his post, Court Upholds Termination of Crack-Smoking Pilot:

• February 15:  Pilot Charles Gabbard smoked crack cocaine.
• February 16:  Gabbard submitted to a random drug test.
• February 17:  Gabbard piloted a chartered jet.
• February 21: Gabbard’s test results show a cocaine metabolite level seven times higher than the regulatory limit. (Cocaine takes 24-48 hours to clear the system.)

In April 2007, the FAA terminated Gabbard’s pilot’s license based on the positive drug test and the agency’s conclusion that he had piloted the February 17 flight “while having a prohibited drug, cocaine in [his] system.”

Drug-Free Friendly Skies: Too Much to Ask?

The Sixth Circuit concluded that there was sufficient evidence to find that Gabbard indeed had taken drugs prior to flying.  Given the window of time for the drug test to show a positive result, he had smoked crack no more than 42-44 hours before takeoff. 

Mark Toth points out Gabbard's creative (i.e., ludicrous) arguments:

(1) he may have smoked a cigarette that, unbeknownst to him, was laced with crack;

(2)  the cocaine may have gotten into his system due to plastic surgery; or

(3) perhaps he inhaled the fumes of crack cocaine that just happened to waft by.

But the Sixth Circuit didn't buy it.  What mattered was that, regardless of how he intentionally or accidentally ingested the drug, he should have notified his employer immediately, rather than preparing for takeoff as usual.

One final note about the case.  Gabbard also tried to argue that he'd been a victim of incompetent representation by his lawyer at the administrative hearing.  Needless to say, the court disregarded the contention, holding that adequate representation is an issue for the criminal courts.  Since that's the case, given the circumstances, Mr. Gabbard may be able to reuse that argument sometime in the not-so-distant future when he likely finds himself before a criminal court.  And, hopefully for him, his lawyer will not have "accidentally" ingested an illegal narcotic prior before representing Gabbard in any legal proceedings, criminal or otherwise.

Other Recent Cases Involving Terminations for Illegal Conduct and Drug Testing

EEOC Sues Pittsburgh Drug Clinic for Terminating Recovering-Addict Employee for Failing Random Drug Test

One More Reason Every Employee Should Be Required to Complete a Job Application: School Is Ordered to Reinstate Convicted Killer to Teaching Position

The Equal Employment Opportunity Commission (EEOC) has filed suit under the ADA against a Pittsburgh drug-treatment center.  The suit, which is brought on behalf of a former clinic employee under the Americans With Disabilities Act, alleges disability-based discrimination.  The employee, a recovering drug addict, worked full-time as a counselor at the clinic when was terminated when she tested positive for methadone in a random drug test.  

The Greenbriar Treatment Center in New Kensington, is alleged to have fired the employee despite her claim that she had a legal prescription for the methadone, which she'd been receiving through a treatment program since 2002.  She was later berated by her former boss, who told her that she "should be ashamed of herself."  The EEOC contends that the termination was unlawful discrimination against a person with a disability. 

The Americans With Disabilities Act & Illegal Drug Use

The Americans With Disabilities Act (ADA) does not protect current drug users.  But it does protect those who are in recovery for drug or alcohol abuse. 

The EEOC's Technical Assistance Manual for the ADA has the following to say about the use of illegal drugs as a disability:

Regarding Persons Currently In Recovery:

Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction.

For example

An addict who is currently in a drug rehabilitation program and has not used drugs illegally for some time is not excluded from the protection of the ADA. This person will be protected by the ADA because s/he has a history of addiction, or if s/he is "regarded as" being addicted. Similarly, an addict who is rehabilitated or who has successfully completed a supervised rehabilitation program and is no longer illegally using drugs is not excluded from the ADA.

Regarding Persons Currently Using:

However, a person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on the past drug use. In order for a person to be "substantially limited" because of drug use, s/he must be addicted to the drug.

To ensure that drug use is not recurring, an employer may request evidence that an individual is participating in a drug rehabilitation program or may request the results of a drug test.

Not having seen the complaint, I'm at a bit of a loss as to what type of facts may be alleged to support the EEOC's claim.  To present a viable claim, the EEOC has to allege that the employee (1) is disabled, presumably because of her drug addiction; and (2) she suffered some adverse action, presumably the termination; and (3) Number 1 was the reason for Number 2; i.e., that she was fired because of her drug addiction. 

My initial reactions to this scenario:  What was the clinic's drug policy? I'd think it would be more comprehensive than most.  Did it address methadone?  What was the clinic's position, if any, on methadone programs as a recovery treatment?  And, of course, wasn't there a pre-employment drug test?  If so, did she test positive for methadone?  If she did, well, it seems like clinic could be in a bad spot.  If she didn't, was she still using illegal drugs?  Would that have been a piece of after-acquired evidence (i.e., falsifying drug test results, etc.) upon which the employer could have terminated her?  That would be a reason other than a "disability."

The merits of the case may also depend on how the court defines a "recovery program" as that term is used in the EEOC's Guidance, above.  It isn't clear from the EEOC's own definition whether the methadone program would qualify.

A "rehabilitation program" may include in-patient, out-patient, or employee assistance programs, or recognized self-help programs such as Narcotics Anonymous.

Source:  Post Gazette at http://www.post-gazette.com/pg/08166/889903-56.stm