Monthly Archives: February 2009

Time for Servant Leadership

Management

In this time of economic shrinkage, it is tempting for employers to believe that any remaining employees should consider themselves “damn lucky to have a job” (as one of my former law partners used to say). This attitude can lead to subtle exploitation of employees who will do almost anything to keep their paychecks coming each month.

My 22 years of experience in employment law lead me to believe there is a better way to treat employees, even in poor economic times, or maybe particularly in poor economic times. That management style is frequently called “servant leadership.”

The few servant leaders that I know in Texas Panhandle businesses rarely have to worry about lawsuits filed by former employees, because even job terminations are performed with grace by servant leaders.  Meanwhile, many other local companies are seeing an increase in employment litigation.

Servant leadership has been preached in the secular business world for almost 40 years, beginning with an essay by Robert K. Greenleaf which advocated teamwork, ethics, and care of one’s employees. Greenleaf and his disciples identified certain characteristics of a servant leaders, including listening, empathy, stewardship, a belief in the inherent value of employees, and a commitment to building community. Many companies, such as Southwest Airlines, have discovered that this kind of servant leadership creates fulfilled employees who will go the extra mile for the company and for its customers.

For those of us who are Christians, we know that this concept of servant leadership is much older than 40 years. It was modeled for us 2000 years ago by the greatest leader of all, Jesus Christ. Jesus demonstrated true servant leadership after the Last Supper, when he washed the feet of his disciples.

When he had finished washing their feet, he put on his clothes and returned to his place. “Do you understand what I have done for you?” he asked them. “You call me ‘Teacher’ and ‘Lord,’ and rightly so, for that is what I am. Now that I, your Lord and Teacher, have washed your feet, you also should wash one another’s feet. I have set you an example that you should do as I have done for you. I tell you the truth, no servant is greater than his master, nor is a messenger greater than the one who sent him. Now that you know these things, you will be blessed if you do them.

John 13:12-17.

As an employer, you can do so much more than hire, discipline and fire your employees. You can encourage them, inspire them, hear them, heal them and lead them by the example you set. Look up the phrase “one another” in the New Testament and you will find the best management instructions ever published:

  • Be devoted to one another.
  • Honor one another.
  • Live in harmony with one another.
  • Accept one another.
  • Serve one another in love.
  • Be completely humble and gentle; be patient, bearing with one another in love.
  • Be kind and compassionate toward one another, forgiving each other just as in Christ God forgave you.
  • Submit to one another.
  • Encourage one another and build each other up.
  • Spur one another on toward love and good deeds.
  • Offer hospitality to one another.
  • Have fellowship with one another.

What does that look like in practical terms? Ask your new employee and his family to your home for dinner. Find out about his life, his needs, his dreams and then look for ways to help him fulfill them.

Arrange for your company to build a house for Habitat or to sort canned goods at the High Plains Food Bank together, and make sure you are the first one there and the last to leave. Organize the company softball team, provide the t-shirts, and if you don’t play with them, at least be there for the games and be the loudest cheerleader in the stands. Build a healthy community and your employees will work to improve it. Employees who are led by a servant will never want to disappoint you or leave the company that has become a family to them.

Accommodating Mental Disabilities

Discrimination

One of the inevitable problems that the Americans with Disabilities Act Amendments Act (ADAAA), which went into effect January 1, 2009, will cause employers will be the difficulty figuring out how to treat every disabled employee on a case by case basis while all other discrimination laws demand that you treat every one equally. That problem is exacerbated when the employer is trying its best to reasonably accommodate an employee or applicant with a mental impairment.

Let’s look at hypothetical situation: Your newest sales person, Anne, is a 25-year-old, high energy extrovert. She is great when sent out to call on customers. But Anne’s paperwork is a mess and her lack of time management drives you crazy. During organizational meetings, she continuously bounces her left leg and clicks her pen. Everyone on the sales team can pick up on her impatience with any planning process.

Despite Anne’s sales ability, you are about to decide that she is not the right fit for your organization, when Anne drops into a casual conversation the fact that she was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when she was in middle school and has been off and on Ritalin ever since. This is not an uncommon situation, since 5.2 percent of the working adult population in the United States has ADHD, according to the World Health Organization.

Firing Anne outright for lack of organizational ability would be a mistake, now that you are aware of the disability. Continue reading Accommodating Mental Disabilities →

Cupid at Work? Bah humbug!

Discrimination, Forms and Policies, Management

Reuters published a story today about a CareerBuilders.com survey on workplace romances. Just in time for Valentine’s Day, 40% of American workers admit that they have dated a coworker. Another 10% say there is a coworker they would like to date. Interestingly only 5% of women want to date a coworker while 14% of men do. Can someone say “hostile environment”?

It gets worse: of those who dated a co-worker in the last year, a third of those relationships involved a coworker who was held a more senior position, including 42% that dated their boss. Can you say “quid pro quo sexual harassment”?

I know I should be all starry-eyed about all the wonderful sparks of romance lighting up American workplaces. But my 22 years of law practice always make me fast-forward to the part where the flames of love die and and out of the embers come the EEOC claims.

Workplace romances are fraught with sexual harassment and retaliation risks. If coworkers date and then break up, the gossip, name-calling, sexual jokes and scorn can easily be twisted into a claim that the workplace has become a hostile environment based on gender.

If a boss dates a subordinate, it gets even messier. The claim can become quid pro quo (loosely translated “this for that”), meaning that the subordinate may say that she was passed over for a raise or promotion or even fired because she wouldn’t give the boss what he used to get and still wants. Quid pro quo cases involving a tangible job detriment, such as a demotion, are the worst kinds of sexual harassment cases for an employer to try to defend.

Many employers are hesitant to get involved in their workers “private” lives. If it is developing in your workplace, it is hardly private. You may need a written policy to establish clear boundaries between business and personal interactions. It can include:

  • Instruction to keep interactions at work professional (no PDA, no long personal exchanges);
  • Requirement of prompt disclosure of a developing relationship, particularly if it involves a supervisor;
  • Removal of management authority from anyone over an employee involved in a personal relationship;
  • Requirement that the dating couple work with management to find an acceptable solution to any problems that arise, such as complaints of favoritism;
  • Requirement to accept transfers, changes in duties, or even voluntary termination of the more senior party if other measures don’t prevent or resolve problems.
  • Requirement that the end of any such relationship be reported to human resources so that future actions can be scrutinized for retaliation or harassment.

Sort of takes all the fun out of the romance, doesn’t it? I feel like Scrooge at Christmas, but I’ve seen too many of these relationships go bad and then the company has to pay the price. Better to nip it in the bud, red rosebud, that is, since ’tis the season for overpriced, underdeveloped blooms!

I-9 Cautionary Tale

Documentation, Hiring

If you like to rant and rave about the lack of government enforcement actions to stem the tide of illegal immigration, remember that you as an employer are primarily responsible for making illegal immigration unattractive by requiring every employee to demonstrate his eligibility to work in the United States. This is done by requiring every new hire to fill out an I-9 employment eligibility form within the first three days of employment. No documentation: no job.

What happens if your company is not diligent about filling out the I-9 forms completely and correctly or if your company just turns a blind eye towards an employee’s questionable legality? Ask Republic Services, Inc. in Houston. The waste management firm recently cooperated with Immigration and Customs Enforcement (ICE) and paid $1 million to the national treasury to avoid criminal prosecution for sloppy I-9 practices that led to hiring undocumented workers to make up 25% of its workforce. The federal government was not impressed with any excuses that Republic made.

What could you do differently to avoid such an outcome in your company? These are the changes that ICE required Republic to make and that you could be making right now:

  • Terminate any employee whom you know is undocumented.
  • Give others whose documentation is questionable a reasonable period to provide unexpired or otherwise genuine documents. If good documents aren’t provided, terminate that employee’s job.
  • Hire and train well one or two centralized human resources people to complete all I-9s and to verify that the documentation presented appears genuine.
  • Provide training for all supervisors or other employees with input into hiring to make sure they know the rules and don’t try to skirt them.
  • Implement payroll software that includes I-9 compliance measures, such as advance notification when an employee’s documentation is about to expire.
  • Keep copies of all eligibility documents presented by your employees, all letters you write about expired documents, and all of your efforts to keep employees in compliance.

Training Slashed Even As Employees File Lawsuits

Discrimination, Management, Training,

One of the ironies of recession is that businesses tend to cut back their training of their employees at the same time that layoffs are spawning the filing of higher numbers of employee lawsuits. This is happening again during the present deepening economic crisis. Unfortunately, this is one of those situations of businesses “cutting off their noses to spite their faces.” (Do people still say that or am I showing my age?).

During 2008, studies show that average training expenditures in U.S. businesses decreased 11%. The studies don’t pinpoint which types of training, i.e. safety, skills or sexual harassment prevention, are being cut, but I can guess. Few companies understand the incredible effectiveness of providing employment law training to defeating expensive and time-consuming litigation. Therefore, if they ever offered training to their supervisors on avoiding discrimination or to their staffs on recognizing and preventing harassment or violence, they probably will slash that expense this year.

At the same time that the finance department is telling their bosses that the training budget has to go, employees are being terminated in record numbers. The national unemployment rate for January, which will be released tomorrow, will probably be around 7.5%, a 17-year high.*

And what do employees do after they are fired? They look for someone to blame, which in many cases will be the company that fired them. So they file unemployment claims, discrimination complaints, and lawsuits. During the fiscal year 2008, the Equal Employment Opportunity Commission already experienced a 15.2% annual increase in charges of discrimination and retaliation filed. Just wait until FY 2009.

I can already tell from my own law practice that even in the Texas Panhandle, which has been unusually sheltered from the current economic storm, employee complaints and lawsuits are increasing. Many of my clients are starting to face the investigative powers of the EEOC or the Texas Workforce Commission’s Civil Rights Division. Many of those charges will turn into lawsuits alleging discrimination and retaliation.

If you are regular reader of this blog, you know I always advocate written policies and employee training as your first line of defense against an employee lawsuit. If you start cutting your budget for those things, you may see short-term financial relief, but in the long run you are leaving your company very vulnerable to very costly employment lawsuits.

*Note from February 6, 2009: As it turned out today, the national unemployment figure was even higher: 7.6% for January 2009. That means that almost 600,000 jobs were lost in January. That is the worst showing for number of job losses since 1974. In all, 3.6 million Americans have lost their jobs since this recession started 13 months ago.

Sexual Harassment for all Ages

Discrimination, Termination,

Texas courts have considered sexual harassment at both ends of the age spectrum lately. One case involved a teenager as a victim and the other involved a 62-year old harasser who claimed age discrimination when he was fired. Both cases have lessons to teach employers about sexual harassment, still one of the most common employment claims that companies face.

The case involving the teenager was tried in Houston last year. The EEOC filed the case on behalf of a 19-year-old who was hit upon by the owner of the dry cleaners in which she worked. The evidence showed that the owner inappropriately touched his young female employee, made many offensive comments, and held her against his will in her car while he graphically related his sexual desires and threatened her with sex against her will. The jury found that the owner had harassed the employee and awarded her $105,000.

A couple of things need to be learned from this case: Continue reading Sexual Harassment for all Ages →