In my prior post, I wondered aloud whether there were some rough waters ahead for employers.  Apple recently announced that it would not meet it’s earnings estimates in the first quarter of 2019, in part because of soft demand from China. Other companies are expected to announce some similar issues.

Honestly, I’ve had enough conversations in the last few years with HR professionals who just haven’t lived through a major downturn.

Think about this way: For anyone who joined the workforce since 2010 or so, the era of massive layoffs in the financial and automobile sectors had just passed.

But fortunately, there are still a few of us around who remember.

So here are four things to think about:

  • Performance Reviews.   Why? Because when a downturn hits, your company will need to start a selection process as to who stays and who goes.  Inevitably, you will start looking at performance reviews to see about ranking employees.  You know what you might find? They all start looking alike. Everyone is slightly above average.   While I’m not suggesting everyone convert to a forced ranking system, your performance reviews should be honest indicators of how an employee is doing. Take a look at the ones you are doing this quarter.
  • WARN.  The Workers Adjustment and Retraining Notification Act  is one of those federal laws that you might not have even heard about. But if your company has 100 or more employees, you should. It requires that 60 days notice be given in instances of a mass layoff or plant closing. Before you go down the road of layoffs, you may have obligations to notify your workers and the government of the potential for layoffs. Be sure to comply.  Here’s a brief recap.  
  • Consider a Statistical Analysis.  I know — you didn’t like math in high school. But trust me: There is an entire profession of statistical experts available to help you figure out if the proposed layoff may have a disparate impact on a protected class of workers.  How is this done? You look at the class of workers that may be impacted by the proposed reduction in force and have an analysis done to see whether your neutral criteria may not be so neutral after all. Sometimes there are explanations for the disparate impact; but sometimes, the analysis can force employers to take a second look. Regardless, this can be an important step.  Just make sure to use an attorney to help give guidance here.
  • Understand the OWBPA.  It stands for the Older Workers Benefit Protection Act and it’s part of the federal law on age discrimination.  And if you want your employees to sign separation agreements (as I think you should) when you do your layoffs, your agreements better comply with this act.  I did a recap in 2008 that still holds up today.  

Before you have a crisis on your hands, talk internally about what the reasonable expectations for 2019 are going to be. If a possible cutback to personnel is even being discussed, now is the time to get ahead of things.

If you’ve been playing close attention, this blog has been a bit quiet of late.  Indeed, it’s probably the longest stretch between posts in the 11 years I’ve been doing this.

It’s not for lack of ideas.

Rather, after many years of spouting off (which, after all, is the underlying purpose of the blog), I found myself desiring to do a lot more listening.  Listening to employers. Listening to my colleagues. Listening to other lawyers.   And the only way to do that was to really stop writing for a while.

I don’t profess to have been original in this aspect.

I’ve admired a blog from afar that preaches this exact point — Listen Like a Lawyer by Jennifer Romig.  Just a few weeks ago, she highlighted the International Day of Listening — and the theme for this year of “Listening — even when you disagree.”

Imagine that.

But it’s really so true.  In employment law, listening can help employers and employees find common ground. Or, at least a better understanding of their respective positions and avoid lawsuits.

Yes, there’s the obvious examples of the claims of sexual harassment, but there also a whole host of other issues that arise in the workplace because one party isn’t doing the listening.

Take, for example, an employee’s performance. Sometimes, an employer will ask us for advice on a termination; the employee hasn’t been performing well and we want to terminate her performance. One of my first questions to the employers is: What have you communicated to the employee and what does she understand?

A few times I’ve heard — Well, I think the employee should know we’re not happy.

That’s where some employment lawsuits get formed.  They can be forged out of misunderstandings. Or they can be forged with the employer hasn’t communicated well with the employee and hasn’t listened to what the employee has to say.

And it goes both ways too.  No one likes hearing criticisms of their work; has the employee been listening to what you have been telling her?

It’s easy for all of us — in the mad scramble that we deal with on a day-to-day basis — to just try to plow forward. To think we know what’s best. Or to shut ourselves off from learning.

But listening provides one way for all of us to break through the background noise that seems ever present with smartphones, social media, and e-mail.

What strategies for listening have worked well in the workplace? And do they help you as an employer address employee-related issues?

On October 1, the rollout of major changes to the state’s Personnel Files Act becomes official.

If I had to hazard a guess, however, I’d say that many small to mid-size companies remain unprepared for the breadth and scope of the changes.  If you haven’t focused on it yet, you’ve got a weekend to catch up.  (I’ve covered it in prior posts like this one before.)

Here are the key things you need to know now about the new law:

  • Under the new law, an employer will now have seven business days (instead of a “reasonable time”) to permit a current employee to inspect AND, if requested, a copy of his or her personnel file.
  • For former employees, an employer will now have ten business days after receiving a written request to allow that person to inspect or get a copy of his or her personnel file. Such a request must come within one year of the date of termination of that former employee. An employer can comply with this section by mailing a copy of the personnel file within the same time frame if the employer and former employee cannot agree “upon a location to conduct such inspection”.
  • A copy of any documentation of any disciplinary action must be provided to the employee within one business day after imposing such action. (If there is no such documentation to begin with, it remains unclear if anything needs to be created, but certainly if you document your “verbal warnings”, a copy of that will likely need to be provided to the employee.)
  • When an employee’s employment is terminated, the employer now has to “immediately provide an employee with a copy of any documented notice of that employee’s termination of employment.” Presumably, again, it does not require such documentation to be made (the language here isn’t as ambiguous); only that if there is such documentation, it needs to be given to the employee at the time of termination.
  • In addition, a statement in clear and conspicuous language in any documented disciplinary action, notice of termination of such employee’s employment or performance evaluation that the employee may, if he or she disagrees with it, submit a written statement explaining his or her position. That statement must be included in any personnel file.

As I’ve said before, each company may have their own take on what a “disciplinary action” means in the context of each workplace, so employers should consider consulting their preferred legal counsel for additional advice on how to comply with this law.  Of course, the law doesn’t completely override other aspects of the law too which you should familiarize yourself with. 

If you’ve been putting off this issue until you had a firm deadline, that deadline is now upon us.

Time to get to work.

At the core of every employment relationship is the expectation that the employee will perform the job satisfactorily.

But what happens to those performance expectations when an employee has a disability?

As the federal government has acknowledged, The Americans with Disabilities Act, which prohibits “employment discrimination against qualified individuals with disabilities, generally do[es] not

Updating Office Practices

impinge on the right of employers to define jobs and to evaluate their employees according to consistently applied standards governing performance and conduct.”

Simple enough, right?

Not exactly.  There are still issues that arise “such as what steps are appropriate where a disability is causing – or seems to be causing – a performance or conduct problem, when a request for accommodation should be made, and when an employer can properly raise the issue of an employee’s disability as part of a discussion about performance or conduct problems. Even when the disability is not causing the performance or conduct problem, some employers still have questions about what action they can take in light of concerns about potential ADA violations.”

Fortunately, the EEOC has some little-known guidance on this issue.  I recently came across it again and, for human resource professionals and business owners, it’s worth taking a look at.

It won’t answer all the questions out there (and employers should still seek legal guidance on these types of issues), but it addresses some common questions such as:

  • If an employer gives a lower performance rating to an employee and the employee responds by revealing she has a disability that is causing the performance problem, may the employer still give the lower rating?
  • What should an employer do if an employee requests an accommodation for the first time in response to counseling or a low performance rating?
  • May an employer require an employee to receive or change treatment for a disability to comply with a conduct standard?

Last modified this year, “The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities” is one document that is worth reading.

In my presentation last week to the HRA of Greater New Haven (which i discussed yesterday), the hottest topic that people wanted to discuss was LinkedIn Recommendations.

People had several questions:

  • Should a company bar its employees from doing such recommendations?
  • Should a HR department "police" LinkedIn to ensure compliance?
  • What is the risk of allowing employees to post recommendations or receive recommendations?
  • And, does anyone actually rely on these recommendations?

This issue may take on some renewed prominence as LinkedIn has begun an aggressive series of steps to grow and expand its business.   

I discussed the issue of LinkedIn recommendations back in July after a article suggested that management-side lawyers were advising clients about the "hidden dangers" about LinkedIn.  At the time, I indicated that there were no reported cases about the use of LinkedIn.  Six months later, that remains the case. (You can even look it up yourself on Google Scholar.)

That does not mean that LinkedIn is without any risk.  Of course there is a possibility of a supervisor giving a recommendation to an employee that is inconsistent with a formal performance evaluation.   But that risk existed before the advent of social networks as well.

Each business will have to evaluate the risk as well but one suggestion that we discussed is that companies could prohibit current supervisors of existing employees from posting any recommendations on LinkedIn. That prevents the risk of inconsistency. Once that supervisor/employee relationship is ended (perhaps a new job for either of them), it seems that the restrictions could be lessened. 

But here’s the other truth that we discussed: People aren’t paying close attention to these recommendations because there are no controls in place. Nothing prevents friends from writing recommendations for other friends. And the "quid pro quo" recommendation — I’ll recommend you if you recommend me — are all too common. (This point was raised by the World of Work blog in a great post several months back.) 

In addition, are supervisors of bad employees going to be giving recommendations anyways? Probably not, says Molly DiBianca of the Delaware Employment Law Blog.

So what’s the right course of action? 

Well, for specific industries that have restrictions on the use of recommendations (such as financial advisors) the answer will be clear.  For many others though, this issue will remain murky.

But right now, employers frankly have much larger issues that they should be focusing on than regulating LinkedIn recommendations.  So, as an employer, discuss it if you must — but don’t treat it as a major concern for liability exposure because so far, that hasn’t been the case.  

 

Earlier this month, a National Law Journal article suggested that LinkedIn recommendations are a potential "legal land mine" for employers. 

Indeed, the article suggests that "management-side lawyers are warning employers about the hidden dangers of LinkedIn, the popular business networking site that posts recommendations for job candidates. Specifically, attorneys are advising employers to be wary of giving glowing remarks about employees on the site because the employers risk having the recommendations used against them in a discrimination or harassment suit."

In the abstract, that seems like fine advice. But what’s missing from the article is some common-sense and perspective about that risk.

In fact, I did a quick search of recent cases to see how many involved "LinkedIn" recommendations being a factor in discrimination cases. 

For such a prominent article, any guesses on how many cases turned up? None.

Quite simply this risk is being overblown. How? Because it assumes that managers and supervisors routinely give recommendations to their lowest performing employees. That just doesn’t happen with any frequency — even before the advent of technology.

(Molly DiBianca, of the Delaware Employment Law Blog, agrees with me in a post that came out after this post was scheduled.  Indeed, she suggests that "The real reason employers should be nervous about managers who write recommendations about employees is that those things take time to create and employers would be wise to make sure the recommendation-writing isn’t consuming an inordinate amount of time better spent supervising." ) 

Technology may have changed the medium in which the recommendations are (or are not) given, but the article assumes that managers and supervisors will throw caution into the wind and start making recommendations of people that, for the most part, they probably don’t like working with.  Frankly, I don’t see that happening very much.

Employers have lots to worry about this year: new ADA rules, new FMLA regulations and lots of new laws either just passed or on the way.

Worrying about LinkedIn recommendations shouldn’t even be close to your company’s top 10 things to concern yourself about.

With the holiday weekend now firmly behind us (and hopefully the wet weather and storms behind us too), it seems like a good time to recap some items you might have missed over the last few weeks in employment law. 

  • First, a gentle reminder that our free webinar on the Supreme Court’s decision on Ricci v. DeStefano and the implications for private employers is just 48 houcourtesy morgue filers away.  Details and registration are available here
     
  • There was a excellent pair of articles last week on writing effective performance reviews posted at the HR Daily Advisor here and here.  The key takeaway: Be specific both in what you expect as an employer and what needs to be done (with a timeframe). 
     
  • A recent Law.com article asks (and answers) the question for in-house counsel and human resources representatives: Can you access and read your employee’s web-based e-mail systems when the employee has accessed it through their workplace computer? The conclusion: It’s not worth the risk. 
     
  • The National Labor Relations Board has, for the last year or so, been issuing decisions from its two appointed members (out of 5).  Are these decisions "legal" because they are not a majority of the board? If the decisions are not legal, what happens? Do they get thrown out? That is the subject of many different appellate court decisions of late. The Second Circuit (the federal appeals court covering Connecticut) recently issued a decision that gave the thumbs up to the practice, furthering a split among the circuits. 
     
  • The Connecticut Supreme Court, in Garcia v. Hartford (download here) recently addressed the question of whether a retiree is an "employee" under a collective bargaining agreement. If so, the retiree would have to exhaust their remedies under the Agreement. The Supreme Court answered the question no, finding that the intent of the parties in this Agreement was that former employees had a different status than current employees. It’s yet another example how proper drafting of agreements can avoid years of litigation later on.  
     
  • And finally, the Connecticut Innovations blog has a post on how to build an engaging work environment. This is particularly important for start-up companies than may not have an established culture in place. 

 

As is typical for December, everyone is starting to wrap up for year end and the amount of substantive items to report on slows to a trickle. Thus, it’s time for some short items on a variety of employment law and HR-related topics.

I feel the same now as I did then – while I agree the performance review is an imperfect tool, you’re only credible in calling for its elimination if you’re prepared to put your money and time where your mouth is and be involved in providing the training and CONTINUOUS feedback to managers on their coaching skills.

You don’t have time? Guess what sparky? You’re part of the problem, not the solution. Please fade to the background.

The alternative to the annual performance review is coaching daily, which is another word for feedback. The bad news is that we have a lot of managers nationally who aren’t willing or capable of coaching.

Dunn’s post is worth reading for his suggestions on how HR can help with the performance review process.

Here’s a quick update on some items and topics that have been covered by the blog over the past year:

Whether individuals believe in performance reviews or not, organizations are increasingly looking to hold managers accountable for accurate, timely and unbiased appraisals which help manage performance and head off legal issues.

“A lot of people are asking questions, given the financial crisis, about what HR or human capital programs companies should be focused on and performance management would definitely make my short list,” said Laura Sejen, Watson Wyatt’s global practice director for strategic rewards in New York. “It’s more important than ever to make sure that employees and managers are clear about organizational goals and priorities.”

 

"Get Rid of Performance Reviews!" proclaims a UCLA professor in this morning’s edition of the Wall Street Journal:

To my way of thinking, a one-side-accountable, boss-administered review is little more than a dysfunctional pretense. It’s a negative to corporate performance, an obstacle to straight-talk relationships, and a prime cause of low morale at work. Even the mere knowledge that such an event will take place damages daily communications and teamwork.

The alleged primary purpose of performance reviews is to enlighten subordinates about what they should be doing better or differently. But I see the primary purpose quite differently. I see it as intimidation aimed at preserving the boss’s authority and power advantage. Such intimidation is unnecessary, though: The boss has the power with or without the performance review.

But never fear, he has a substitute: Performance previews.

The alternative to one-side-accountable, boss-administered/subordinate-received performance reviews is two-side, reciprocally accountable, performance previews.

And for those who worry that getting rid of performance reviews will make it more difficult to fire someone, he offers this response:

Some of you may also ask if the performance review goes away, how do we prepare the groundwork if we want to fire somebody? For the better, I’d argue: Take away the performance review, and people will find more direct ways of accomplishing that task.

 

It is a lengthy piece and worth reading. But at the end of the day, it strikes me as more high-minded theory than practical guidance.  I’m not dismissing the various 360 approaches to performance reviews or the need to provide continual feedback to employees on performance issues through the year, but eliminating performance reviews won’t solve all the problems in the workplace.  Instead, it’ll shift them to another source.

And for lawyers trying to defend against employment discrimination claims, getting rid of performance reviews will eliminate some of the last best hope in providing true written documentation of the employee’s performance.  Reviews, as they stand now, may not be the greatest (since reviews tend to be watered down) but at least they provide some support.  Eliminating that, and companies will be left to argue employment decisions based on bits and pieces elsewhere — if they are even written down.

I’m not sure that finding "more direct ways" of firing someone is realistic too.  Many supervisors and managers either are risk-adverse or do not like confrontation.  It is hard to see how eliminating performance reviews will make their tasks any easier when it comes time for discipline or termination.

Before companies get rid of the performance review, the question that ought to be asked is: Is the system we replace it with better?  And if so, how?  If a company can’t answer these questions, it may just be shifting its problems from one source to another.

(H/T Workplace Prof Blog)