Tough Times, Tough Conversations
Four keys to getting started

Sandy was dreading the meeting with her department. As the economic crisis deepened, the company was facing tough choices. Senior leaders were considering cutting back hours and benefits, and possibly even layoffs. She felt it was important to be straight with her team about the scenarios that were being discussed, even though her boss and an HR manager had discouraged that.

“That’ll just stir things up,” Sandy’s boss said. “They need to focus on their jobs, not get distracted by bad news they can’t do anything about. If you tell them the truth, you’ll have a mess on your hands.” Even so, Sandy decided the right thing to do was to tell folks in her department everything she knew. As she stood to begin the meeting, the mood was tense. Big departmental meetings usually meant big trouble—people expected the worst.

Meanwhile, in another part of the building, Chris had called a similar meeting with his people to get them “back on track” in the face of difficult economic news. As he walked into the room, people eyed him nervously. They remained silent as they waited for him to talk.

Sandy smiled and made eye contact as she began with “Good morning.” Before she could continue, someone said, “How bad is it? Are we going to lose jobs?” “It sounds like you’re worried that I’m here to bring you bad news about layoffs,” she replied. “These meetings always mean bad news,” someone else said. “They’re either to announce a change we won’t like or layoffs.”

“It makes sense that you would feel that way,” Sandy replied calmly. “Our history is to have departmental meetings when times are tough. I have used the excuse that we’re too busy to have them regularly. And I haven’t done a good job letting you know what I know. Starting today, I want to change that.”

In the other room, Chris decided to be direct and reassuring. “The rumor mill is working overtime. I am sure that you’re all worried about the economy and what it means to the company.” Someone muttered, “Why don’t you just hand out the pink slips now, get it over with?” Chris replied quickly, “Look, no question, the economy stinks. We don’t know for sure what’s going to happen or what decisions the company is going to make. The best thing to do is just focus on our jobs and don’t worry about things you can’t control. Senior management is looking at all the options for the business and our interests, too. I know they will make the right decisions. We just need to trust them. In the meantime, the best thing we can do is keep doing good work.” The room went silent again. Chris thought, “This is going pretty well.”

Back in Sandy’s meeting, the conversation was heating up. “Wait a second,” someone said, “You’re admitting that we’ve been kept in the dark most of the time?” “It’s true, I haven’t done a good job telling you what I know and helping you understand what’s going on in the business,” Sandy said. “Starting today, I intend to change that and tell you what I know when I know it. Let me start with the effect this current credit market is having on the business, and its effect on sales…”

For the next 45 minutes, Sandy gave her team a detailed account of the “state of the business” and the effect of the lousy economy. She relayed that company managers had called for a hiring freeze and were considering shortening hours, sharing jobs, freezing pay, generally doing with less, and, possibly, layoffs. People were fearful, anxious and angry. They told Sandy they felt betrayed and peppered her with questions:

“So we’re supposed to hang in here and try to fix something management screwed up?” “How are we supposed to make plans with things being so iffy?” “What assurances can you offer that things will be OK when the economy turns around?” Sandy patiently answered every question, extending goodwill and fully understanding their concerns and experience.

“Look, things are bleak. We’re all worried. It sounds like you’re angry and want to throw in the towel. I feel that way sometimes, too, and could give a list of reasons why. But here’s what I see: I have choices about the future and how I want to participate at work. Even in the face of all this difficulty, I’m choosing to remain optimistic and committed to making a difference here.

“You’re all adults. You have your own choices to make. You can see yourselves as victims, or get cynical about the company and tune out. Or you could choose commitment. The future will continue to be difficult for at least the next year. It’s certain the business will demand more from everybody. How you respond is up to you. Now, let’s talk about ways we can open up the flow of information so everyone knows as much as possible about what’s going on.”

Down the hall in the meeting with Chris, someone finally spoke. “So you’re saying that management is figuring it out, and we should trust them and just pay attention to our work?” “Exactly,” Chris replied. “Just stay focused on your jobs and this will work out. We’ll try to keep you posted.”

Deconstructing the conversations
Most of us have been in Chris’s meeting, and maybe a few have been in one like Sandy’s. Both managers were trying to do something they viewed as helpful with their teams. However, the conversations in the meetings were significantly different because each had a totally different view of the meetings’ purpose.

Chris intended to address the bad news, reassure the team and get people focused on doing their work. He interpreted people’s silence as agreement. The people in the room weren’t given a chance to express what they were experiencing, nor participate in a conversation that would help them understand they had choices to make about their own futures.
Sandy intended to focus on the difficult situation, engage team members in a conversation about the future, and begin dealing with it. She made clear her commitment to remaining optimistic and working hard. Then she invited them to choose, acknowledging a reality that many leaders don’t want to see: people always choose whether they will be accountable and committed.

Intention and introspection
Because Sandy made it clear that her intention was to have an authentic conversation with the adults who worked in her department, she could stay focused and calm. She didn’t have to worry about keeping secrets, “spinning” information, managing other people’s emotional welfare or taking responsibility for how they engage at work.

She admitted early in the meeting she had not done a good job sharing information with the team and stated her intention to change that. Sandy knew people would be upset and would need to express that openly. She admitted she had doubts and concerns, too.

Sandy stated her choice for optimism, engagement and commitment, and acknowledged the choices people in the room could make as they faced the future. She understood that if people chose to see themselves as victims or got cynical about what was happening, the business would suffer even more. Sandy didn’t treat her colleagues like children by cajoling them or insisting they make the same choice — a futile endeavor.

By directly confronting the difficult issues, with goodwill, and framing choices people could make, Sandy started a new conversation about a shared future. She helped people recognize that they are accountable for the choices they make at work.

Reframing old conversations
When creating authentic conversations for engagement, it’s essential to spend time reflecting on how we see people at work, and what we want to create in the workplace. We suggest reflecting on three important things:

1. The myth of holding others accountable. You might be able to mandate compliance (though we would argue that point), but accountability, commitment and motivation are choices individuals make. Letting go of the idea that you can hold someone else accountable returns the focus where it belongs—on you. The essential question is, “How will I hold myself accountable for the success of this business?” Only then can you engage others with goodwill about choices they might make.
   
   
2. Recognize that “caretaking” others is futile and crippling. Assuring people that things will be all right when you don’t know is living a parent-child dynamic. The adults you work with see through it. Telling people not to worry is an attempt to manage another’s emotional response to a tough situation—and that’s impossible. Would you rather have people express fears openly and honestly, or in hushed and furtive conversations in the restrooms, cafeteria and parking lot? Caretaking also is an expression of a dominant relationship. The message is, one class of people has the responsibility to “fix everything” and others are off the hook. Caretaking sets the table for future disappointment and betrayal by everyone.
   
   
3. Determine how you are colluding with helplessness and lack of optimism. You can make a different choice, every day. Tough times are just that. We feel disappointed in others and ourselves, vulnerable to outside forces we can’t control, and we see how interdependent our futures are. How do you express your fear, anxiety and anger without getting stuck in it? How do you make a different choice and tell others about it with goodwill? How will you maintain optimism and commitment in the face of inevitable disappointments?

Getting started
Clarifying your intentions is the essential first step. The second is to start new conversations that make visible your intentions and your choices for living them out. Four elements are key to this new conversation, especially in tough times:

• Acknowledge the difficult issues and name the harsh realities. Sandy stopped the silence and the sugarcoating. She talked openly and clearly about the difficulties in the marketplace, how they were impacting the business, and how it might affect the department. She chose goodwill in connecting with her team. Goodwill is not a feeling, but a choice about how we engage others. She did not overstate the gravity of the situation, and neither did she try to minimize or soften the difficult realities.
  
  
• State your contribution to the situation and its harmful effect. Sandy knew she hadn’t been good about sharing information. She also recognized this inhibited her team’s ability to participate in their own future, and created even higher levels of anxiousness and fear. She admitted this, and made a commitment to new behavior.
  
  
• State the risks, including the possibility things might not work out. The future is uncertain and risky, and hiding from that wasn’t going to serve the business or the individuals who worked there. Nobody can “know” what the future holds.
  
  
• Frame choices about how you and others might face the future. Sandy recognized that she worked with people who were just like her: competent, capable adults who made complex decisions about their lives every day. She clearly stated her choice for optimism and commitment, and framed possible choices for the others. She acknowledged the fear and anxiety created by the difficulties, and articulated choices everyone could make in service of the business.

Bottom line
Engaging employees is a business strategy, not an HR intervention. Enormous amounts of data support that informed, engaged employees achieve far better business results, and find greater meaning and purpose in the workplace.

In these tough economic times, authentic conversations are more essential than ever. Creating action by recognizing the power of choice holds far greater promise than fearing, or trying to manage, others’ emotional responses to uncertainty and bad news. This shift could be the most important to the future survival, prosperity and success of the organization.

The Same-Sex Marriage Debate
What are employers’ responsibilities?

With the passage on November 4, 2008, of Proposition 8, designed to overturn the California Supreme Court’s decision in In Re Marriage Cases, 43 Cal.4th 757 (2008), employers confront the latest development in one of our nation’s most contentious public policy debates. What, if anything, does the enactment of Proposition 8 mean for employers? In many ways, the answer is “not much.”

In 1999 California adopted a “domestic partner” civil union statute, Family Code § 297-299.6, which permits same-sex couples to enter into a civil union. A subsequent statute, Family Code § 297.5, provides that a registered domestic partnership is legally and for all purposes the equivalent of marriage. California also prohibits sexual orientation discrimination in employment, Government Code § 12940(a). These laws grant registered domestic partners all of the rights and privileges spouses possess, including the right to take California Family Rights Act leave for various qualifying events (including the serious health condition of a registered domestic partner), Government Code § 12945.2(c)(3)(B).

Advocates of same-sex marriage do not believe that the domestic partner/civil union laws, even though legally the equivalent of marriage, are satisfactory. After the Supreme Court’s May 15, 2008, ruling in the In Re Marriage Cases, thousands of same-sex couples were married—until state officials suspended the practice immediately after the passage of Proposition 8. Do those couples still enjoy the legal status of married couples? California Attorney General Jerry Brown believes the answer is “yes,” but the courts will have to resolve that issue.

Some of the more significant employment issues surrounding the same-sex marriage debate actually involve the application of federal law, and specifically the status of health insurance benefits.

Employers should be aware of at least the following issues:

1. Registered domestic partners enjoy the same privileges and rights as married couples.
Since 1999, California has recognized civil unions between registered domestic partners. Family Code § 297.5, enacted in 2003, ensures that registered domestic partners have all of the same legal rights and privileges as married couples. The California Fair Employment and Housing Act also prohibits “marital status discrimination,” Government Code § 12940(a)(3). With limited exceptions, such as where one spouse or domestic partner directly supervises the other, or where there is an issue of safety, security, supervision or morale, an employer may not discriminate against an employee because of his or her marital status (i.e., single, married, widowed or divorced).

If two employees marry, or become registered domestic partners, in most cases the employer is prohibited from terminating either employee. Any action taken against either employee (such as a job reassignment) requires a showing by the employer of an issue of safety, security, supervision or morale. These basic marital status discrimination principles, which apply to registered domestic partners, are unaffected by the passage of Proposition 8.

In addition to California Family Rights Act leave, registered domestic partners are entitled to other mandated leaves on the same basis as married couples. Examples include “kin care” leave under Labor Code § 233, and leave under Labor Code § 230.2(b) to attend legal proceedings with a domestic partner who is a victim of a crime.

Some same-sex couples were married but were not previously registered domestic partners. Indeed, a person entering into a registered domestic partnership cannot be married, Family Code § 297(b). Although the ultimate status of the same-sex marriages entered into between May and early November of this year is still unsettled, the prudent employer will treat same-sex couples married during that time frame as married for purposes of any employment decisions or benefits.

2. What about same-sex couples who are not registered domestic partners?
The relevant statutes create parity only between married couples and registered domestic partners. They do not require parity between married couples and same-sex partners who are not registered domestic partners; nor do they require parity between married couples and opposite-sex unmarried couples.

However, many employers, not wishing to distinguish between formally registered domestic partners and other committed couples, do not require evidence of actual domestic partner registration. These employers simply require that, in order to be eligible for domestic partner employment benefits, the employee sign a statement confirming that he or she is in a committed relationship with a same-sex (or even opposite-sex) domestic partner. If the employer does require proof of registered domestic partner status, the prudent approach is also to require proof of marital status for married couples. Otherwise, a claim could be made that the employer is treating married couples differently from registered domestic partners (by requiring proof of domestic partnership on the one hand but not requiring proof of actual marriage status on the other).

Proposition 8 does not affect the status of registered domestic partners nor does it affect the statutes that create the domestic partnership protections or establish equality between domestic partnership and married status. In general, therefore, an employer should do nothing different, as a result of the passage of Proposition 8, with respect to its employees who may be registered domestic partners. If the employer does not require evidence of actual registered domestic partner status, there is no reason to change that practice now.

3. Employee benefits issue.
The most widely discussed issue involving same-sex partnerships (whether formal marriages or registered domestic partnerships) is the tax treatment of employer-provided domestic partner health benefits. Under California law, insurance companies who offer spousal coverage in their health insurance policies must also offer domestic partner coverage. Yet, as a result of the federal Defense of Marriage Act (“DOMA”), enacted in 1996, federal law recognizes only opposite-sex marriages. Under current law, employer-provided health insurance is not taxed to a married person receiving spousal coverage. However, a registered domestic partner receiving domestic partner coverage must pay federal income tax on the value of the domestic partner coverage (California law does not require such tax payments). Similarly, same-sex domestic partners are not eligible to receive each other’s federal Social Security death benefits.

There is a significant loophole in California’s requirement that domestic partner insurance coverage must be offered where spousal coverage is offered: For example, if the employer has a self-insured health plan that is covered by the Employee Retirement Income Security Act of 1974, the employer is not required to offer domestic partner coverage (even though spousal coverage is offered). This is because no insurance actually backstops the plan, and under ERISA the state law requirement is preempted.

The federal DOMA also means that same-sex spouses or domestic partners may not make pre-tax contributions to a § 125 Cafeteria plan on behalf of the same-sex spouse (although some plans do permit contributions to be made after tax), and may not receive reimbursement for expenses of the same-sex spouse or domestic partner under a flexible spending account or a health savings account.

President-elect Obama has indicated he hopes to legislatively change the federal tax treatment of same-sex health benefits. It is unknown at this time whether or when Congress will act on this issue.

4. What about same-sex marriages from other states?
If an employee advises the employer that he or she has just married his or her same-sex partner in another state, what should the employer do? Presently, Massachusetts and Connecticut allow same-sex couples to marry (the Connecticut Supreme Court ruled on this issue in a 4 to 3 vote on October 10, 2008). In this situation, after Proposition 8, the employer likely need not treat the out-of-state marriage as a “marriage” for purposes of California law. Proposition 8 states that marriage in California is recognized only as a union between a man and a woman. There is as yet no court authority on this issue, but the argument seems persuasive that a California resident cannot legally become “married” simply by going to a different state and obtaining a status not available in California under California law.

5. Sexual orientation discrimination.
Some employment attorneys confuse the concept of sexual orientation discrimination with marital status discrimination. For example, would it constitute unlawful sexual orientation discrimination to deny an employee benefit to a gay employee who is involved in a non-registered domestic partnership? The answer is “no,” so long as the employer fully recognizes parity between married couples and registered domestic partners. The distinction in this case is not based on sexual orientation but on the fact that the gay employee is not in a registered domestic partnership. If he or she were, a different result would occur (he or she would receive the otherwise-denied benefit).

6. What should employers do?
Apart from monitoring the legal challenges to Proposition 8, employers should do the following:

1. Review personnel policies to make sure that the policies treat registered domestic partner status equally with married status.
   
   
2. Make sure that managerial and supervisory employees understand that registered domestic partners have the same rights as married couples, and that discrimination based on marital status and sexual orientation is prohibited.
   
   
3. Decide whether to require proof of marriage and domestic partner registration for employee benefits purposes.
   
   
4. Review employee benefit plans to make sure that they are written and administered properly.

The Potential for Sexual Harassment
- the holidays can spur an incident

The company holiday party is an event to look forward to, but at the same time, it could become a human resources nightmare. When people are in a jolly mood and alcohol is involved, inappropriate behaviors may come into play. With this in mind, I will review the laws governing sexual harassment.

California’s sexual harassment training law AB1825 made national headlines when it passed in late 2004, mandating sexual harassment training for California supervisors. It is the first law of its kind to actually detail the requirements for effective compliance training, setting the standard not only for California, but the likely standard for the rest of the country as well. It is mandated that all California supervisors be trained every two years and 2009 is our renewal year. But since the holidays are here, it would be wise to reiterate the sexual harassment policy with your employees prior to the celebrations.

What does California AB1825 mean, and who does it apply to?

• AB1825 applies only to organizations that regularly employ 50 or more employees or regularly “receive the services of” 50 or more persons. (Independent contractors and temps are included in the 50+ number.)
  
  
• Employers must provide two hours of sexual harassment training to each supervisory employee, every two years.
  
  
• New supervisory employees must be trained within six months of their assumption of a supervisory position, and thereafter, every two years.
  
  
• The training mandated by California’s AB1825 must be of high quality, conducted via classroom or other effective interactive training. The training must include “information and practical guidance” regarding federal and state laws that prohibit sexual harassment, including prevention and correction of harassment, and remedies available to victims. The statute specifically requires employers to use “practical examples” aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation.

Selecting a trainer
Trainers must have experience in the field. Using attorneys is one way to go. The attorneys who can deliver the training must be admitted for two or more years to the bar of any state in the United States, and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964.

The second group of people who can deliver the training are human resources professionals with two or more year’s practical experience in one or more of the following: 1) designing or conducting discrimination, retaliation and sexual harassment prevention training; 2) responsible in handling sexual harassment complaints or other discrimination complaints and investigating them, or 3) advising employers or employees regarding discrimination, retaliation and sexual harassment prevention.

And lastly, it can also be professors and instructors in law schools, colleges or universities who have a post graduate degree or California teaching credential, along with either 20 instruction hours or two or more years of experience in a law school, college or university teaching about employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964.

If you wish to develop your own program, or get materials from outside vendors, you must be able to clearly demonstrate the active, hands-on participation of a true sexual harassment-prevention expert. This relates not only to the current program being used, but also any ongoing prevention. If in doubt about your own program, utilize a vendor who has expertise. Ask the vendor to provide you with references and a snapshot of their program. They should be able to answer any of your questions regarding the program.

Valid defense
Just implementing sexual harassment training for your supervisors every two years does not provide a defense to a sexual harassment claim and, conversely, a supervisor’s failure to receive training is not grounds for establishing liability for harassment under the Fair Employment and Housing Act. The FEHA makes it an unlawful practice for an employer to fail to take “all reasonable steps” necessary to prevent harassment from occurring.

Providing the required training is one step, but only one step, in meeting this requirement. Also, if you wish to make trainings longer than two hours or more frequently, AB 1825 doesn’t discourage you from doing so “in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.” The U.S. Supreme Court, as well as state and federal agencies, have made it clear that employers that train employees about sexual harassment, and who have an anti-harassment policy and a complaint procedure that has been communicated to employees, minimize their liability exposure.

Here is a checklist to keep you compliant:

• Hire a professional expert who can deliver interactive training, or purchase a program that provides the interactive process.
  
  
• Schedule and administer training for all current supervisors every two years. Remember 2009 is a renewal year and training is not an option. Costs associated with this training should be included in the budget.
  
  
• Develop a system to monitor and ensure new supervisors are trained within six months of hire/promotion and every two years thereafter.
  
  
• Implement and maintain a system for recordkeeping that demonstrates compliance.
  
  
• Update policies and procedures to include reference to, and documentation of, adequate training.

When it comes to the holidays, we want to make sure our employees have a good time, but, at the same time, we also want to provide an environment free of sexual harassment. Remind them that the sexual harassment policy not only applies on company premises, but also applies at any company-sponsored event that may be held off premises.

Documenting Discipline

Now more than ever, managers and supervisors need to sharpen their skills to protect themselves and their companies from costly lawsuits. Good documentation not only provides you protection, but if done properly, can be a great tool for motivating and improving your workforce.

As you already know, there are various methods of employee discipline. Whatever method you decide to use, documentation remains essential to discipline. There is no “right” way to do it, but here are some guidelines that will get you back to doing what you do best: managing and supervising! Just remember, the road to a good termination is paved with good documentation.

The “five Ws”
These are the basics: who, what, when, where and why. The concept is simple enough, yet many often forget to document the answers to these essential questions. Who was involved? What rule or policy was violated? When did the incident occur? Where did it occur? Why and what discipline is appropriate?

ABCs of writing
When drafting your disciplinary documentation, paint a picture of the incident or violation using adjectives. A good method is to use words that describe your five senses, i.e., I saw, I heard, I touched, I smelled, or I tasted. Another good tip is to rephrase subjective observations into objective facts. See this example:

Get in, get out
Keep your documentation short and simple. Be as concise as possible. Good documentation is based on facts. Keep opinions and speculations out. Verify facts through interviews and evidence. Time is also of the essence. As time passes, so does value of employees’ memories of facts and details. Untimely investigation is as bad as no investigation. While it is important to start your investigation immediately, your final documentation does not need to be completed in such a short time that a thorough investigation cannot be complete. Be timely and thorough. Indicate who prepared the documentation and when the documentation was prepared.

Identify the rule or policy violated
If a specific rule or policy was violated, be sure to cite the rule or policy and where it can be found. Avoid legal jargon and stick to plain English. Employees need to know what the problem is before they can fix it. If a specific rule or policy cannot be identified, be sure to state the standards to which your company expects your employees to adhere. Follow up with specifics as to how your employee’s behavior failed to reach this standard.

Plan for improvement
It is imperative that you document the expectations your company has of your employees. Your employee needs to know exactly what he or she needs to do to fix the problem. Whether it is behavioral changes or skill improvement, good documentation includes what needs to be done, how it is going to be done and when it should be done. Offer solutions for the problem. If you can show that you offered the employee help to improve their behavior, you reduce the suspicion that the company was out to get them. Remember, failure to document any of these things can be detrimental to your enforcing future discipline, including termination.

Discipline employees?
Clearly state whether any actions are going to be taken now to discipline the employee, i.e., “I am giving you a written warning that will be placed in your file.” “You will be suspended for three days without pay, beginning on Tuesday, November 11, 2008. This suspension notice will be placed in your personnel file.”

Future violations or incidents
Good documentation will also inform employees of the consequences of any future misconduct or violations. You can be specific about the discipline or leave it open with a catch-all phrase that states, “Failure to demonstrate immediate and sustained improvement will lead to further disciplinary action up to and including termination.” Termination should never be surprise. With good documentation, an employee should never claim lack of notice.

Warning! Verbal warning should be documented
“If it isn’t in writing, it didn’t happen.” Even verbal warnings should be documented. The same information above applies: who, what, when, where and why. While discipline may not be applied, be sure you discuss the disciplinary actions that will occur if behavior does not improve and document your discussion. A copy of the recorded verbal warning should be placed in your employee’s file.

Employee’s signature and review
If possible, provide a copy of your disciplinary memo to the employee. Make sure to have the employee sign and date it, acknowledging receipt of the document. More often than not, many employees will refuse to sign. If this happens, indicate on the document “employee refused to sign.” This will show, if requested at a later time, that the document was presented to your employee.

We Get (E-)Mail
- EG’s Helpline responds to member questions

The following is the first in a series of answers in response to questions posed to the Employers Group Helpline. The Helpline received these recent questions by email. Our Helpline Consultants will provide an occasional article like this one with a selection of the most commonly asked questions.

Q: Business has slowed down drastically, and some employees will be placed on California’s EDD Work Sharing Program (partial unemployment) as an alternative to layoffs. Since an employee’s workweek must be reduced by 10% in order to qualify, we want to know if Exempt/Salaried employees can be placed on the program without breaking the law or jeopardizing their exempt status. In other words, can we reduce an exempt employee’s salary due to a reduced workweek?

A: In this situation, you should adjust their compensation to a new “fixed salary,” the new, lower salary must be paid regardless of hours worked in the workweek. Be careful not to “flip flop;” that is, don’t keep adjusting the fixed salary every week. Going “back and forth” looks like you are equating the salary with actual hours worked. If your company returns to a 40-hour workweek, you can adjust the fixed salary up. If an exempt employee works part of the workweek, their salary cannot be correlated with quantity or quality of work. (29 CFR, Part 541). However, there are exceptions for whole or partial days missed because of personal reasons or illness.

Q: What are the required forms and notices for administering leaves under the Family Medical Leave Act (FMLA), the California Family Rights Act (CFRA), and California’s Pregnancy Disability Leave (PDL)?

A: The following forms are used:

1. Leave of Absence request form
   
   
2. “Employer Response to Employee Request For Family and Medical Leave” (Form WH-381)
   
   
3. Notice regarding the designation of leave as FMLA and/or CFRA where appropriate (Notice 2 above, as written, designates the leave as only FMLA)
   
   
4. Information describing the company’s leave of absence policy
   
   
5. EDD pamphlet, “State Disability Insurance: (DE 2515 Rev.44)—for pregnancy disability leaves and other non- workers’ compensation leave
   
   
6. EDD pamphlet “For Your Benefit—California’s Programs For the Unemployed” (DE 2320 Rev. 41)
   
   
7. If leave is for pregnancy disability, California’s Notice A or Notice B, depending on the employee’s eligibility for CFRA leave. This is issued by the Fair Employment and Housing Commission (FEHC).

Q: Can we set up an attendance policy that allows employees to clock in 6 minutes early with a round up to start of their shift, with no overtime?

A: “Rounding off” time is allowed. California follows the U.S. Department of Labor's allowance (29 C.F.R. Section 785.48 (b)). Employers can round to the nearest 5, 6, or 15 minutes. “Nearest” means that sometimes the recorded time goes back, and sometimes it goes forward. Here’s how to apply rounding:

• 5 minutes: up to 2 minutes, go back; 3 or more minutes, go forward
  
  
• 6 minutes: up to 3 minutes, go back; 4 or more minutes, go forward
  
  
• 15 minutes: up to 7 minutes, go back; up to 15 minutes, go forward

Rounding must be applied on both sides of the clock and it cannot result in always advantaging only the employer; the employee must also, at times, get the benefit of rounding. For example, at times, employees should get the advantage when calculating overtime worked. Most importantly, over a period of time the practice of rounding cannot result in failure to pay employees for all hours actually worked.

Q: I need advice about responding to a Labor Board claim. Employee is claiming unpaid vacation earned 1/1/07 to 12/16/07. All Employees are granted vacation eligibility on January 1. Employee took the time off and was paid for 2007. Is there a certain format I need to follow when I send my response to the Commissioner?

A: You need to be able to prove through your records that the employee was paid all monies owed at termination. To be able to this convincingly, you are going to need a handbook or vacation policy. This is how you are to show what the employee earned as an employee. You also need the start date and termination date. Using the policy and the total months of service, you can figure out the total number of days earned. Next, you need the process you use for recording the days employees took vacation. You also need the records for taking vacation, vacation requests and payroll records. These records are going to be your proof that he or she requested the days and that he/she was paid those days.
Having the records is very important; the employer is considered the recordkeeper. If you do not have them, you have already lost your case. You want to be able to show the employee got paid for their vacation days. After you have all the information, it is advisable to put together a spreadsheet. This way you can show that the days earned equals the amount paid. Here is an example of a spreadsheet.

Absence Notice and CFRA Leave

Many times, employers are uncertain as to when to designate an absence as a CFRA/FMLA leave. Recently, a California Court of Appeal determined that an employer was required to grant a California Family Rights Act (CFRA) leave of absence when the employer arguably received a medical excuse which would qualify the employee for CFRA leave, see Avila v. Continental Airlines, Inc. (2008).

Henry Avila worked for Chelsea, (a division of Continental Airlines) an airline food catering company at LAX, from 1998 through January 2005. Chelsea’s attendance policy provided for employee termination if seven or more “recordable” absences were accrued in any rolling 12-month period.

A “recordable” absence was any absence other than specified nonrecordable incidents. Approved short-term disability and approved family medical leave both were nonrecordable incidents if prearranged. An absence was recorded for each day of missed work unless the employee provided a doctor’s note justifying the absence for medical reasons. If a doctor certified the employee’s illness, only one absence would be recorded, even if the employee was absent for multiple days. Avila had previously been warned about his poor attendance by the company.

In December 2004, he missed four days of work when he was reportedly hospitalized for acute pancreatitis. He claimed that when he returned to work he provided two medical forms from Kaiser Permanente, one showing that he had been hospitalized three days (December 15, 16, 17), and one for an additional day to recuperate (December 20). He said he gave the Kaiser forms to the manager on duty at Chelsea when he returned to work, although he could not recall to whom he gave the forms. He also said he might have left the forms on the manager’s desk rather than personally handing them to someone. The company claimed they did not receive the forms, and Avila was subsequently charged two recordable absences, bringing his total number of recordable absences to six for the relevant 12-month period.

In 2005, Avila incurred another recordable absence. The company determined that he had been absent from work seven times in the preceding 12 months, and therefore, he should be terminated in accordance with the company’s attendance policy. He was terminated on January 25, 2005. The next day he delivered a letter to the company explaining his illness, and providing the medical records concerning his hospitalization. He asked that he be reinstated. He appealed the termination decision to a company appeal board, which upheld the termination.

Avila filed suit with several claims against the company. Most of the claims were dismissed. One surviving issue, however, was whether or not the company should have granted a CFRA leave to Avila?

The lower trial court ruled in favor of the company because Avila “... did not request leave or an accommodation under CFRA for his illness.” The court concluded that the Kaiser forms submitted by Avila were insufficient to raise a triable issue because his statements about “…to whom he gave the Kaiser form ... is at best equivocal and at worst contradictory and inconclusive.”

At the appellate level, the court focused on whether or not it was reasonable to conclude that Avila actually submitted the December 19 Kaiser form to the company, and if he did, did that submission amount to a CFRA-qualifying leave request.

The court found that Avila’s testimony was sufficient to establish that he had provided the medical notices to the company and that “…a reasonable trier of fact could interpret that testimony to relate not to whether plaintiff submitted the Kaiser forms to Continental, but specifically to whom at Continental he gave the Kaiser forms. Plaintiff’s testimony that he might have the left the forms on the manager’s desk rather than handing them personally to the manager also is not an equivocation—plaintiff testified that this was how he ‘usually’ submitted medical excuses. That plaintiff was unable to recall precisely to whom or in what manner he submitted the Kaiser forms does not render his testimony that he did so mere speculation. It is the trier of fact’s function at trial to determine whether plaintiff’s testimony is credible.”

In supporting Avila’s argument that his absence was protected by the CFRA, the court noted that the “CFRA does not define what constitutes a ‘request’ for leave. Instead, the Legislature expressly delegated to the Commission [the California Fair Employment and Housing Commission] the task of ‘adopt[ing] a regulation specifying the elements of a reasonable request’ for CFRA leave.”

The regulation adopted by the Commission regarding a request for a CFRA leave, states: “[a]n employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment.

“...Under all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying, based on information provided by the employee ..., and to give notice of the designation to the employee.” See Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(1)(A). The court reversed the trial court, and concluded that Avila submitted sufficient evidence to raise a triable issue of fact as to whether the Kaiser forms under the circumstances constituted a request for CFRA-qualifying leave.

Employers are urged to carefully analyze any discharge that may be protected by CFRA or FMLA
rights.

Circumventing the Fatigue of Harassment Prevention Training

Editor’s Note: There are two articles this month about harassment prevention training, but each provides a different slant on the topic. Check out the companion article on page 3.

For many companies, it’s back: mandated harassment prevention training, also known as AB1825. It has been the mantra for California employers every two years since 2005. While it presents an opportunity to renew the organization’s commitment to a workplace free of harassment, for many HR professionals and more supervisors, the fatigue of receiving this training repeatedly is wearing thin on everyone’s nerves.

Most recently (and notably) a supervising professor at the University of California, Irvine, refused to take this training, to his detriment. He lost his supervisory responsibility, and may even lose his job. While this may be an extreme case of harassment mutiny, it certainly elevates the issues HR professionals will face in 2009 as they – once again – try to rouse the troops into this mandatory training.

In California, supervisory harassment prevention training is mandated for all employers with 50 or more employees at least every two years. At minimum, two hours of effective and interactive training must be provided by a qualified instructor in instructor-led, online or webinar formats. All formats must provide for active participation and cover state-mandated criteria.

Repercussions when not provided
Since its adoption, the only repercussion for not providing the mandated training has been an order to comply provided by the California Fair Employment and Housing Administration (FEHA). While this has been the only recourse, the most significant other effect has been when a complaint is filed with the Fair Employment and Housing Commission (FEHC). When this happens, the initial investigation is to determine if compliant harassment prevention training was provided. If it wasn’t, the most logical question would be: What happens to the employer who has an employee with a legitimate complaint, but who did not provide the required training?

What is the best option?
As an HR professional in 2009, you are faced with many dilemmas regarding AB1825 training, including: (1) to take a calculated risk and not provide the training, (2) to provide the training as required with lackluster supervisory support, or (3) to provide the training as required with full supervisory commitment. Of course, budgetary restrictions will be a primary determining factor in your plans.

Many would agree that harassment prevention training is the noblest of training programs with the best intentions possible. The basic tenets of the training should be something that really should not need to be covered, but they do and for good reason. Thus, the only true option an astute HR professional can take is Option 3: Provide the training as required with full supervisory commitment. Now, how can you do that?

How to make the training better received
Make the training relevant. One size doesn’t fit all, so the training should be as relevant to your company as possible. It should include examples of how harassment could occur in your workplace and what to do about it. As an example, a retail company should be concerned with an employee who is harassed by a customer or vendor and what action should be taken.
Make the training interactive. While the state mandates what must be covered, who enjoys labor code recitals? I would tend to think not even many attorneys! The training should focus on case studies and “what would you do” scenarios to demonstrate and accentuate learning points. Harassment prevention cannot be learned by simply giving the definitions, but by putting it into the context of the work environment.

Make the training a rich experience. This is the part where we like to say, make learning fun; however, we have personally witnessed many companies that have made harassment prevention training too fun. It is a serious subject that deserves respect. A rich experience should be something that would make the program memorable to trainees until their next harassment “reminder” in 2011.

Recommendations
Provide the right amount of training. AB1825 stipulates that training must be provided every two years; however, for new supervisors, they must receive training within six months of being put into a supervisory position. What does this mean? Those new to supervision should receive more extensive training in not only harassment prevention, but overall supervisory law. For maximum effectiveness and understanding, we recommend that these employees receive at least three hours of harassment prevention training and at least four hours of supervisory law training. For those more seasoned supervisors who have been through several iterations of harassment prevention training, two hours of training should suffice unless, of course, there have been “issues” within your company. In that case, it certainly wouldn’t hurt to couple diversity or respect training, in addition to harassment.

Find the right trainer
While the trainer must meet the minimum qualifications set forth by the state, the qualified trainer should also be someone who can engage your population. It may not be the wisest or most cost-effective choice to hire the most noted employment law attorney to train your front-line manufacturing supervisors. On the other extreme, to reduce expenses, many companies will have a qualified internal staff person deliver the training; however, we have found that many are juggling too many activities and are not able to commit themselves to make the program as effective as it should be. Additionally, they may not get the respect needed in the classroom, or even may be discounted.

Prepare early
If 2009 is your training year, get a fresh perspective on your harassment training plans and prepare early. With preparation, you will easily be able to find the right trainer, receive the right amount of training, make the training a rich experience, interactive and, most importantly, relevant to your supervisory employees. And maybe you’ll get a good price on it, too.

Editor’s Note: If harassment training is in your plans for 2009, contact Employers Group and enjoy significant discounts if you book your training early.

Employee Behavior during Tough Economic Times

American workers are more stressed out than ever. The bankruptcies, tumbling stock markets, foreclosures and severe financial strain are in some cases creating panic and stress levels that have not been seen since 9/11. The American Psychological Association just released its annual “2008 Stress in America” poll and the findings aren’t surprising. Half of Americans surveyed say they are increasingly stressed about their ability to provide for their family’s basic needs. Sixty percent report feelings of irritability or anger and 52% report difficulty sleeping as a result of stress. These results impacts employees’ attitudes, health, morale, and productivity.

Workplace fallout from employee stress
Emotional distress has increased in the workplace as a result of financial distress. For some employees, this shows as depression or extreme apathy on the job. Meanwhile for other employees, the stress manifests itself in significant anger issues. Short fuses dramatically increase the potential for dysfunctional behaviors that affect everyone from upper management to coworkers to customers. When employees feel powerless to control their situations, they eventually lash out. As they spend the majority of their waking hours at work, inevitably, coworkers and management bear the brunt of their unhappiness. Confrontation with supervisors and coworkers is on the rise.

Chronic stress also can lead to impaired mental capacity. Stress can decrease memory. It may feel like the onset of Alzheimer. Employers may see a severe decline in a valued employee as task after task remains half done or undone. Diminished mental capacity due to stress can throw the employee off stride; however, for the employer it can truly impact productivity.

During economic hard times, employers begin to see unprofessional and unethical behaviors. Unethical behaviors might include bending rules that, previously, employees had conscientiously obeyed. In their heightened state, they might to think normal rules do not apply to them during these times. Employers may see an increase in petty theft. Desperation can result in poor decision-making, irrational thinking or increased sense of entitlement.

The substance abuse rate tends to rise. When employees can’t cope with reality, they sometimes turn to alcohol or drugs. These behaviors may conceal their anxiety, fear and depression temporarily, but escalate an already bad situation and endanger their job, which results in a worsening financial situation.

Clearly, managing stress is vital to overall workplace and employee health. Here are some suggestions that can help employees cope better:

Signs of stress
When signs of stress are recognized, intervene early. Some intervention strategies include:

• Pull employee aside and express concern
  
  
• Encourage employees to take their breaks to relieve stress/tension
  
  
• Remind employees about your Employee Assistance Program
  
  
• Provide Stress Management Seminars
  
  
• Provide Financial Counselor on-site for Financial Education and Q & A
  
  
• Monitor radio/television in the worksite; discourage employees from obsessing over news beyond their control by encouraging relaxing music or funny themes
  
  
• Remember humor! Humor and fun are good for the workplace. Researchers from California State University, Long Beach determined that people who have fun at work are more creative, more productive, work better with others and call in sick less often. Enjoyable activities are effective stress relievers and are good for team building. Potluck breakfasts/lunches, or even an unexpected snack, can help morale.

What you can do
In the workplace, employers may need their employees to do more with fewer people during these tough times. To provide the maximum support and create a healthy environment for your employees, remind managers and supervisors of the coaching tips:

• Actively show appreciation of employee efforts
  
  
• Remember the simply courtesies of “please” and “thank you”
  
  
• Remember, one person will not be able to do the job of two or three “perfectly,” so reward jobs done to the best of their ability
  
  
• When increasing tasks, discuss current workload and provide guidance and priorities
  
  
• Discuss a realistic plan and timeframe to get the job done
  
  
• Provide constructive criticism when necessary
  
  
• Provide support/mentoring, as everyone does better when he/she does not feel he/she is doing it alone
  
  
• Contact your EAP when serious patterns of behavior arise
  

Take care of yourself!
Taking care of yourself means physically, mentally and spiritually so that you CAN provide the support employees need in the workplace. Sometimes, human resources is so busy taking care of employees that they forget about themselves. Remember, employees are watching you. They pick up on your stress and sometimes model your behavior. It is important to set an example which you wish to be followed.

These are tough times for employees and employers. Employee Assistance Programs can be a key partner. EAPs assist employees and employers in successfully making it through these turbulent waters. Remember to use one of your most effective tools, your EAP!

Jane L. Snowden Galvin, L.C.S.W., has extensive experience in a variety of clinical settings, including inpatient acute care, residential treatment, psychiatric locked-door ward and outpatient treatment. She is the Vice President of Client Services for The Holman Group, where she’s been employed for more than 22 years. Jane holds a Master's degree in social work from the University of Wisconsin. The Holman Group is Employers Groups’ Employee Assistance Provider (EAP) for its employees.

Digital Threats
- emerging predatory behaviors in the workplace

Editor’s note: Because of the tough decisions some employers must make during these uncertain economic times, it is conceivable that a disgruntled employee could emerge from within a company. Even if it doesn’t come up now, we offer this article as insight and information in case you are ever faced with a digital threat.

Human resources and risk managers have become increasingly familiar with violence in the workplace and the warning signs of a threat potential for physical violence. However, malicious digitally based threats have appeared in the workplace as a new weapon for the disgruntled employee to perpetrate malice or unwanted pursuit. There have been increasing reports of cyberstalking, e-mail/SMS-based harassment, sabotage, theft of intellectual properties and similar malicious behaviors in the workplace. These digital threats are emerging as a new variant of workplace violence.

Physically based vs. digitally based threats
Many are familiar with the warning signs of physically based threats, such as

• Intrusion of personal body space and threat posturing
  
  
• Verbalizations of hostile or malicious content
  
  
• Escalated state of agitation, e.g., glaring, flushness in face, increased respiratory rate, increased agitated body movements
  
  
• Boundary probing, preparatory behaviors or malicious rehearsal fantasies
  
  
• The bulge of a concealed firearm or a clip of a tactical knife

Physically based threats are often in close proximity to the target/victim, be it reactionary or predatory in nature. But digitally based threats differ in that they are non-proximity sensitive. Some examples are:

• Identity theft
  
  
• Data-jacking of intellectual properties or personal information
  
  
• Cyberstalking
  
  
• Unauthorized access of email and voicemail accounts
  
  
• Undetected monitoring of computer activities
  
  
• Digital trespass
  
  
• Digital harassment via emails or phone SMS messaging
  
  
• Spoofing, i.e., digital identity masking via disguises, aliases or on-line camouflaging
  
  
• Digital sabotage, e.g., deletion/removal of files, defacement of web pages, cessation or redirection of information flow
  
  
• Inappropriate or libelous information made publicly available on the Internet via websites, blogs, social networking sites
  

Close-proximity, physically threatening behaviors often occur in public settings and involve levels of commitment and accountability, desired or not. Psychological barriers to these inappropriate behaviors are often present. Digitally based threats are usually perpetrated privately, with the goal of lack of accountability and inability for discovery. The psychological barriers have diminished through the anonymity of a keyboard.

Digitally based threats often involve malware (malicious software, often thinly disguised as network administration tools) that can be readily found via an Internet search. Doing a search on google.com for “hacking” brought 46 million web pages of results. There are numerous websites with tutorials and “how-to’s” regarding digital trespassing. A disgruntled employee who is IT savvy can perpetrate unwanted pursuit or mayhem anonymously from the convenience of his home and away from public scrutiny.

Threat assessments
There are many different approaches to threat assessments contingent on circumstantial and environmental variables, although, a quick scan for a threat potential typically involves:

And with the emergence of digital threats, the above quick scan should now also include:

Psychological Risk Factors
There are many different approaches to threat assessments, contingent on circumstantial and environmental variables. A quick scan for a threat potential typically involves:

• Computer/Internet/technology competencies
• Self-absorbed, high sense of entitlement
• Control issues, needs to be powerful
• Hostile, vindictive, retaliatory or passive-aggressive behaviors
• Low accountability for own behaviors
• Observed as odd or emotionally/psychologically unstable
• History of mental illness, e.g., agitated depression, obsessions, delusions, paranoia
• Substance abuse, particularly alcohol or amphetamines
• Poor anger management upon others or upon inanimate objects, e.g., door slamming, table pounding, breaking objects, vandalism
• Low frustration tolerance and difficulties with impulse control
• Direct or intimated threats made
• Threat posturing, preparatory behaviors, rehearsal fantasies

Sociological Risk Factors

• Victimized orientation, “martyr syndrome”
• Needs to have “the last word”
• Highly socially manipulative
• Significant difficulties with communication or people skills
• Isolative, lack of a social support network
• Known as a “hacker” or “gamer”
• Interested in hacking or “black hat” resources, e.g., 2600 Magazine, “get even” books, fascination with Kevin Mitnick and other famous hackers, websites, DEFCON conventions, WAREZ
• Contextual stressors, e.g., financial, relational, employment
• Poor social boundaries, e.g., unwanted pursuit
• Insubordination, e.g., difficulties following directions, progressive disciplines, detrimental to workgroup morale, creates drama/chaos

Organizational Risk Factors

• Unauthorized access privileges, e.g., onsite, remote, intranet, network servers, email/Exchange server, unknown number of authorized Login or email accounts
• Vulnerable intellectual properties and sensitive data, e.g., databases, internal memos, Human Resources information
• Unmonitored use of USB drives, portable drives, IPODs, e.g., transferring of files, use of portable applications (zero footprint on host computer)
• Unauthorized installation/use of “big brother” monitoring software
• Vulnerable passwords and passwords management
• Coworkers complaining of harassment, stress, fear, grievances filed
• Difficulties in assessing vulnerabilities of IT department
• HR not educated/informed of IT or digital exploitation issues
• Lack of integration and communication between IT and Human Resources departments
• Employee carelessness or ignorance of leaving data crumbs that can be exploited by those with malicious intent
  

As we increase our knowledge in the development and implementation of zero tolerance workplace violence practices, it is incumbent upon us to be thought leaders, as opposed to those just following guidelines.

The arenas of workplace violence and information technologies have been converging and displaying as digital threats and emerging predatory behaviors in the workplace. With the pervasiveness of information technologies interwoven throughout our daily lives, do not underestimate a disgruntled employee’s ability to take advantage of this for malicious intent.

By Manny Tau, Psy.D., Talon Executive Services, Inc. Dr. Tau is a clinical and forensic psychologist (PSY14892) specializing in threat assessments and active threat management. He is also a Senior Consultant for Talon Executive Services, Inc. Talon Executive Services is a preferred Employers Group provider, and their services are available to EG members. For more information, contact the editor at wtaylor@employersgroup.com.