The Advantage, April 1996

Over Qualified Job Applicants

The Insurance Company of North America (INA) placed a newspaper ad for a "loss control representative." In the ad, INA said the ideal candidate would have a college degree and two years of property/casualty loss control experience, among other qualifiers.

One of the applicants for that job was Richard Pugh, a man with more than 30 years of experience in loss control and engineering. He was rejected based on his resume alone. He was never interviewed or talked to about the job. Instead, the company hired a 28-year-old woman with no background in loss control. Mr. Pugh filed a complaint with the EEOC, saying he had been discriminated against because of his age. The EEOC sued INA.

The manager at INA who had reviewed Pugh's resume said that he was rejected because he had too much training and experience. The company believed Mr. Pugh would waste time probing too deeply into customer's accounts. The company also said it had always favored applicants with limited experience for this position in the past.

The court agreed that the company had rejected Mr. Pugh for an objective reason unrelated to age. Too much experience would result in wasted time. There was no discrimination

Employment Contracts and Discipline Procedures

• The Court allowed the implied contract claim in this case despite the fact that PG&E had a written policy permitting demotions.
• The Court's decision is not limited to demotions. It apparently can apply to any term (or implied term) of employment. That may include employee claims of implied contracts for promotions, pay increases, benefits, or not to be terminated, suspended or demoted.
• Despite an extensive PG&E investigation, the Court found the company did not have good cause for demotion of these employees. The company claimed the engineering employee's personal engineering consulting business represented a conflict of interest.
• The Court stated that is is "implausible" that employees will bring their employers to court over "minor" matters such as changes in work rules.

For more information, contact George Chaffey, attorney at LMFT&M's Walnut Creek office on 510-932-2468.

Weapons in the Workplace

When I inquired about their policies dealing with the subject of weapons in the workplace, they said they didn't have any.

Any employer, in any state, regardless of state laws permitting such behavior, should have written policies banning weapons in the workplace. Don't wait. Do it now! Perhaps you can avoid a tragedy by acting quickly.

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Dignified Terminations

As the story was reported, the man entered through a guarded security gate, without company identification, proceeded to the product assembly area and began firing his automatic pistol into the air, putting many holes in the building's ceiling.

Then, he proceeded toward a walled-in supervisor's office at one side of the assembly area. He leveled his weapon at the window in the room and pulled the trigger. The window absorbed several dozen bullet penetrations. The supervisor inside was unhurt, but was taken hostage. It was while the gunman attempted to leave the building with the supervisor that he was shot by security officers.

The most remarkable part of this story comes after the fact. Television newscasters aired interviews they conducted with several former employees of the facility. It turns out that all of them had recently been laid off in a general downsizing effort. Their one common complaint? They were treated shabbily by their supervisors during the termination process.

They universally recalled the upset they felt at the demeaning process used by the company. It was described as abrupt, curt, uncaring, insensitive, and hurtful. Several of those interviewed said they could understand how that kind of treatment could cause someone to react violently.

While we don't agree that violent reaction should be "normal" expectation, there are some very important lessons in this example, if we are willing to learn from them. In today's world, we suggest employers pay close attention.

Anytime you end someone's employment, you must allow them to leave with their dignity intact. It is when they are deprived of dignity and made to feel worthless that people react strongly.

Here then, are some suggestions for all managers and supervisors. Use them for any type of termination you must perform: layoff, firing, downsizing.

• Always tell the employee in person. Never send a note or a letter telling someone they are fired or laid off. Telephone calls are also inappropriate. Letters are appropriate only when an employee abandons their job and stops coming to work.
• Wait until the end of the work shift. Someone who leaves the work area at any other time will stand out to co-workers. At the end of the shift, this departure blends in with those who are going home.
• Don't give advance notice. While coaching and progressive discipline are still important, announcement of the actual decision to terminate someone's employment should be saved for the face- to-face meeting. Potentially violent employees will have less time to "simmer" before they leave the workplace.
• Listen. Be firm. Listen. Don't change the decision. Listen. Are you listening? As uncomfortable as the supervisor is during these times, the employee is even more uncomfortable. Americans self identification is closely linked to their employment (jobs, careers, professions). When we take that away, we take away some of their self worth. Most everyone will have something to say about that. Some of it will be angry. LISTEN. LISTEN. Give them their say. That won't change the decision, and they need to know that before the conversation is finished, but they also need to know that you think enough of them as a person to listen to their anger and frustrations.
• Allow enough time and secure a private place for your discussion. Some of these discussions will take longer than others. The manager must not feel rushed. It's OK to feel uncomfortable. Just don't rush through it to get more comfortable. The employee will not be more comfortable if you do. And, always remember this type of news must be given in private.
• Make advance arrangements for another manager to step in if it becomes necessary. Nine times out of ten you won't need anyone else, but the one time you do, it's nice to have them standing by. Sometimes just the introduction of a third person into the room can turn down the emotions of a conversation. Work out signals ahead of time so you won't be interrupted if it is not necessary.
• Give the employee a list of resources for a new job search. Being "cut loose" is bad enough. Having it happen without a clue as to how one find a another job makes the situation seem hopeless. A little care and advance thought can solve the problem by offering solid contacts for the job search which must now begin. It says you care about the employee's future.
• Explain that the termination doesn't make the employee a "bad person." Sometimes the employee has brought the dismissal on themselves by their behavior. Other times, they find themselves out of a job through no fault of their own. Either way, supervisors can emphasize that they still believe the individual has value. A better match can likely be found with another employer.

Leaving people with their dignity in tact after being terminated from their job is easy to do. It requires caring and thoughtfulness.

Remember, the best advice any manager or supervisor can be given is to treat the departing employee like they themselves would like to be treated. The "Golden Rule" never applied in a better circumstance. Wise supervisors will take it to heart.

Policy Considerations

Most of us are used to opening our own mail, taking phone calls when we are in the office and holding sensitive conversations behind closed doors. We generally think of these interactions as private.

As we increase the use of technology in our communication processes we lessen the private nature of those transactions. Since others can listen in, we need to be careful about how we use these technologies. It's like talking on a radio broadcast in many ways.

• Cellular Telephones Anyone with a radio scanner tuned to the telephone frequencies can listen in on your cellular telephone conversations. And they do. It is a hobby for some folks. Others have larceny in their hearts. Establish a policy about cellular telephone use which addresses issues such as business vs. personal use, discussion of confidential information on a cellular call, and a proclamation that employees should not expect their cellular calls to be private.
• Office Voice Mail Systems Many office voice mail systems come with a pre-recorded message that invites callers to "leave a private message for..." If you are an employer with that message on your system, you should not be expecting the right to monitor voice mail usage. On the other hand, if you wish the right to manage how your voice mail system is used, you should explain in a policy to employees that their voice mail messages should not be considered private. Also explain that you reserve the right to monitor them to assure compliance with your policies.
• Electronic Mail E-Mail, as it is called, is a technology which can easily be abused by uncaring employees. Your policy should contain statements that the system is company property and the employer reserves the right to monitor its use from time to time to assure everyone is complying with your policy. Explain whether or not e-mail may be used for personal messages. Explain that offensive or harassing statements are unacceptable and forbidden. Explain that employees should not think of their e-mail messages as private. And, anyone using e-mail to send messages should consider that people other than the addressee will see them.
• Internet - World Wide Web Explain to employees that they leave a trail everywhere they go on the internet. So, when they are surfing along, there is in effect, a string trailing along behind them leading to their terminal's address. Your policy should also explain what type and amount of internet usage is acceptable. Employees can spend countless hours searching, looking, and exploring. This can easily drain productivity. One company, J.M. Huber, uses the following policy which can be found on the internet at http://show-white.oil.huber.com/

J.M. Huber Policy: "This policy prohibits activities on internal and external electronic mail networks such as: operating a business for personal gain; sending for jobs outside of Huber; sending chain letters or soliciting money for religious or political causes; offensive or harassing statements, including disparagement of others based on race, national origin, gender, sexual orientation, age, handicap, religious or political beliefs; sending, downloading or soliciting sexually oriented messages or images; distributing or printing copyrighted materials (including articles and software) in violation of copyright laws. Electronic correspondence and information, such as electronic mail, may be monitored to the extent permitted by law in order to assess productivity, protect corporate trade secrets and insulate the company from challenges under applicable state and federal law. The default retention period for all E-mail (including calendars, messages, folders...) will be (6) six months. It will be the individuals responsibility to retain E-mail items beyond the six (6) month period."

Employer policies should emphasize that legitimate business use of these systems might exist. When using these systems, employees should realize that they are representing their employer and be mindful of future consequences when leaving messages or visiting internet sites. If employees wish to speak their own minds, they should use their own log-ins not the employer's.

One of the largest problems employers face with internet usage is copyright violation. Employers must enforce guidelines they create about posting of information. Consider these suggestions: If you did not create it or do not own the rights, do not put it on the internet. Do not assume the person who gave it to you has distribution rights. As with all policy changes, train your employees about the new rules and have them sign an acknowledgment that they received a copy of the new policies. Be sure you indicate the effective date for each new policy you implement. Make it a future date. Avoid retroactive effective dates.

Funnies

• There are three kinds of people...those who can count and those who can't.
• Maddness takes its toll. Please have exact change.
• Why is "abbreviation" such a long word?
• A conclusion is simply the place where you got tired of thinking.

Changes in DOT Drug/Alcohol Testing

• With a gross combination weight rating of 26,000 or more pounds
• With gross vehicle weight rating of 26,000 or more pounds
• Designed to transport 16 or more passengers, including the driver
• Of any size used in transportation of hazardous materials as defined by the Hazardous Materials Transportation Act

As of January 1, 1996, DOT testing is required for every driver of a DOT-regulated vehicle, not just for employers with many drivers.

The new regulations require employers to create a policy that includes the following required tests:

• Pre-Employment Test. For every driving applicant, either before being hired or after a job offer. This test may look at drug usage only, and must be completed before the new employee actually begins driving for the business.
• Current Employees Who Transfer to Driving Job. Any current employee who moves to a driving job must be tested before driving.
• Post-Accident Test. Required whenever an accident involves a fatality and all other accidents where your driver could have contributed to the accident. (Virtually, any accident.)
• Reasonable Suspicion Test. Used when a trained supervisor or manager observes behavior or appearance in driving employee which is characteristic of alcohol influence.
• Random Test. Conducted at random before, after or during the driver's performance of a safety sensitive function.
• Follow-Up Test. Used after a driver has already violated the alcohol rules and later returns to perform safety-sensitive functions. Drivers who have violated these rules are required to submit to at least six unannounced tests in the first 12 months after return, and random testing for up to five years.

Still in the proposal stage are some changes in the DOT regulations which will address the high number of individuals who experience "shy bladders" and cannot provide a sufficient urine sample.

Current rules require a urine sample volume between 45 and 60 milliliters. Anyone who is unable to provide this volume is to drink 24 ounces of fluid and then will have up to two hours to provide a complete sample. If that doesn't work, the employee is referred for medical evaluation to determine whether the inability to provide a sample is real or constitutes a refusal to test. Any refusal to test is treated the same as a positive test.

Proposed changes would allows up to 40 ounces of fluid to be taken and up to four hours to provide a complete sample.

At the pre-employment stage, employers may consider any inability to provide a sufficient sample as a refusal to test.

Even under the proposed changes, employees will not be allowed to avoid giving their sample at the normal collection point. Some have waited until at the doctors office before providing a sample. The rules say such delay will probably be evidence that the employee was refusing to provide an adequate sample at the original collection site.

We recommend you discuss any drug testing program with your employment attorney, whether or not you are subject to DOT regulations, before implementing your program.

Paid Time Off Policies

Traditional employee benefit programs separate vacation, illness, holiday and personal time off. Each category is treated as a separate benefit account. Accruals of time and use of time is tracked individually for each type of benefit.

PTO policies combine some or all of these benefit programs into one expanded block of paid time which employees can tap regardless of their reasons for wishing to be absent. The theory is, this provides greater flexibility for the employee and simplifies time-keeping requirements for the employer. Both of those are worthy objectives.

However, if you happen to be an employer in California, you have at least one additional consideration: financial liability for payment of benefits when an employee leaves the payroll.

Since 1982, when the California Supreme Court ruled in Suastez v. the Plastic Dress-Up Company, employers have been prohibited from having a "use-it-or-lose-it" vacation policy. Paid vacation is not required by any law or regulation. Employers generally provide it because the employment market demands it. It would be difficult to attract and keep capable people without offering paid vacation as a benefit. Once offered, vacation benefits come under the regulation of the California Department of Labor. Paid vacation benefits are determined by the employer, usually based on length of service. The total 12 month benefit is then accrued (earned) on a monthly basis throughout the year. Two months into a new vacation plan year for example, an employee would have accrued (or earned) 2/12ths of the year's vacation time. Assuming no vacation time had been taken by this employee, should he or she leave the payroll, this accrued time is payable with the final paycheck. At the end of the benefit year, accrued and unused vacation time must be "cashed out" or "carried over" to the next vacation benefit year.

Employers may limit the amount of accrued vacation time employees are entitled to carry over from one year to the next. And, although vacation time which is already accrued may not be taken away from an employee, the employer may establish a policy which says no further vacation benefits will accrue after someone has accumulated "X" days until "Y" days are used by taking time off. This allows employers to avoid an unlimited payroll liability for unused but accrued vacation time.

So much for the California rules on vacation time. What about PTO?

Here's the problem. If vacation benefit time is lumped with other paid time off into a larger benefit account, how can the employer track vacation time separately?

This financial liability for accrued and unused vacation time must be "booked" at the end of each benefit year. It is literally an influence on the business' financial statement. If we have a PTO policy, the potential impact on our business financial liabilities is greater, sometimes by a wide margin.

The reason is simple. California's Commissioner of Labor takes the position that the vacation rules must apply to the entire PTO "pot" if it is not possible to identify vacation time separately.

In some businesses we have seen the liability double when they converted to a PTO policy. Do what is best for your business and your employees. Simply understand the impact such a policy change can have.

Lowering Production Standards Not Required by ADA

In Milton v. Scrivner, Inc. (53 F.3d 1118, 10th Cir. 1995), two employees sued their employer, a grocery warehouse. Both employees had been disabled by on-the-job injuries.

Each of these employees worked as selectors in the grocery warehouse. In 1992, the employer changed its production standards which meant all employees in these jobs had to do their jobs faster.

The two workers failed to meet the new standards and were terminated. The court ruled that it was the employee's responsibility to meet the new production standards set by the company. It also rejected all of the accommodations suggested by the employees as unreasonable.

The employees suggested that they be allowed to meet an altered or reduced production standard, or a smaller work load.

It turns out that these two workers were covered by a collective bargaining agreement which prohibited giving them light duty work.

Transferring to other jobs was ruled out because the company had no other jobs which would be lateral assignments, the ADA does not require job transfers that represent promotions and the workers' seniority would have prevented their transfer under the union agreement.

So, according to the 10th Circuit:

• It doesn't violate ADA to make changes in the business to increase profit, improve competitiveness in the marketplace, or increase pro-ductivity and efficiency.
• An employer is not required by ADA to change the essential functions of a job.
• The ADA does not require accommodations resulting in other employees having to worker harder or longer hours.
• Promotions are not required as job accommodations.

The Advantage is published each quarter by: The Management Advantage, Inc.

Please also take time to read the important articles in other issues.