Month: June 2013
So The Supreme Court delivered another ill-conceived ruling yesterday.
In a 5-4 decision, they determined that a black employee of Ball State University who was relegated to menial tasks, subject to racist comments and even slapped by her supervisor could not file suit against the University for discrimination. While this supervisor managed the day-to-day work of the employee, the supervisor could not take “tangible actions” against the employee and so was not legally a supervisor, only a coworker. In other words, organizations are only liable for the actions of those who have the authority to hire or fire employees.
Oh yeah, and corporations are people, my friend.
This is what happens when you have people making an employment law decision who have their jobs for life.
While the supervisor in question could not take “tangible actions” against the employee, she could make the employee’s life a living hell. The supervisor could give her the worst jobs and the worst schedules. She could make her look bad in front of other employees. The supervisor undoubtedly had influence and input over pay, promotion and termination decisions.
The law makes employers liable for its supervisors so that they take responsibility to ensure that those they put in charge comply with the law. Without this liability in place, employers have no legal reason to hire or train supervisors who are discriminating, and no incentive to discipline them when they do. Of course, many will anyway, because they are decent people working for decent organizations who understand that a workplace where everyone is treated with respect increases productivity. But there are also those who won’t give a damn unless there is a threat of losing a chunk of change in a lawsuit.
In organizations I’ve worked for, no one has the absolute power to fire or demote someone. Pay changes go through a strict authorization process. Decisions are generally made between the direct supervisor, senior management and human resources. Yes, we rely heavily on a direct supervisor’s input, but if they summarily fired someone, they would be soon to follow. These processes are prudent to ensure good business decisions. It could also protect a company from liability. It could argue that since the person does not have sole decision-making ability, that person is not a supervisor, no matter how high up the rung that person is. A stretch, I know, but still, a question left unanswered.
All, in all, most organizations won’t change based on this ruling. Good employers will continue to be good employers. The jerks will always be jerks.
Between the time you start your first full-time job until the day you retire, you are not allowed to get sick, not once, not ever.
That’s the message from Florida Governor Rick Scott, who just signed a bill banning local governments in that state from passing legislation requiring employers to provide employee’s sick leave.
My question is – What took you so long? The illustrious governor of my state of Wisconsin, Scott Walker, signed a similar bill into law over a month ago. At this rate it will take forever to turn the clock back to the Dickensian nightmare of the Industrial Revolution. The so-called Gilded Age, when workers lived in overcrowded tenements and died under unsafe working conditions so that a wealthy few (the “Job Creators”) could live lives of luxury.
I was especially glad Governor Walker signed this bill when I was in a chain fast food restaurant the other day and heard one of the food preparers coughing up a dead cat. Who cares if I get influenza, as long as my food comes quick and cheap.
Then again, if I do get sick, I have paid sick time, and an employer whose response to me calling in is, “Okay, take it easy. Hope you’re feeling better soon,” and not, “If you don’t come in today, don’t come back at all.”
Employers argue that sick leave is too costly, and that in order to recoup those costs, they would have to cut jobs. That makes no sense: We don’t have enough employees working because they are calling in sick, so the answer is to hire fewer people and have an even smaller staff.
The cost argument doesn’t hold up to facts. According to researches at Cornell University, sick employees at work cost actually more than sick employees who stay home. Sick workers aren’t as productive, more prone to error and spread illness to coworkers.
In San Fransisco, the local government mandated that employers provide sick leave back in 2006. Guess what? The streetcars didn’t run off their tracks, the Golden Gate didn’t collapse into San Francisco Bay, the Transamerica Pyramid didn’t topple into a heap of rubble. Employees have seen a benefit. Direct cost to employers have been much lower than expected, and indirect costs have decreased due to higher morale, healthier employees and lower turnover. San Francisco’s unemployment rate is about 2 percentage points lower than the national average, and about 1.5 percentage points lower than Wisconsin and Florida.
So if paid sick leave is such a benefit, why do we need to have laws mandating it? Why don’t employers simply provide it because it makes sense?
Many employers do. However, there are still a fair number who do not. Only half of US workers earn paid sick leave, and only one-third can use it for sick children. The statistics are even lower for the lowest paid workers – those who arguably need it most. A lack of sick leave also tends to hurt women more than men, since women are usually the caregivers for sick children and elderly parents.
The employers who resist such laws do it, not because it’s bad business, but because they don’t want the government telling them how to run their organizations. They are like the individuals who see seat belt laws as an intrusion on personal liberties, even though wearing a seat belt is only a minor inconvenience and has saved countless lives.
As a manager for over twenty years, I know first hand that unexpected absences can sometimes be problematic. I’ve worked half staff because several people called in sick on the same day. I’ve had an employee call in because he was having an “Angry Day”. I’ve had to fire someone because they were repeatedly too hungover to come into to work. I get it. It can cause staffing headaches and there are those who abuse the benefit. But these problems can be mitigated with a positive, team-oriented work environment and clear performance expectations. Engaged, dedicated and motivated employees don’t call in sick unless its necessary (Usually, they come in sick and you have to send them home). Show me a workplace where unexcused absences run rampant, and I’ll show you a lousy place to work.
In one of the best (or worst) cases of spin I’ve heard in a long time, one article on Wisconsin’s law stated that it would create uniformity throughout the state regarding medical and family leave standards. It didn’t mention that this uniformity was anti-worker, anti-woman and pro-greed. These are the same politicians that decry Federal mandates because local governments know what is best for their communities. Seems the only time they want uniformity is when they get to decide what that uniformity will be.
Last week marked the fiftieth anniversary of the Equal Pay Act. The Act made it illegal to pay people differently based on gender if they are doing substantially equivalent work. For instance, a female maid and a male janitor both working to clean an office building would have to earn the same pay.
When the legislation was enacted back in 1963, women earned 59 cents per every one dollar a man earned for the same job. The Equal Pay Act is credited for helping close this gap, but the gap still exists. Today, women earn 77 cents for every dollar a man earns for the same job.
The reasons for what is commonly called the pay gap run the spectrum. On one hand, there are those who believe that a bunch of white guys are sitting in a back room complete with a glass ceiling, smoking big fat cigars and colluding to keep women down by suppressing their wages. On the other hand, there are those who say that the pay gap is a myth, that it is based on the fact that men outperform women, or that women’s lower pay is simply due to the fact that they make different career choices than men (to work for a non-profit, or to stay at home to care for children).
Both of these theories are devised by people who want the causes of problems to tidily fit into their narrow world view. If there is some cigar-smoking mysoginists’ cabal, I want to know why I wasn’t asked to join. And I’ve known too many managers to make stupid comments to believe the pay gap is a myth. One once told me that we should lowball a job offer to a woman because the husband made good money as an attorney, and so she would probably take it.
As always, the true reasons for the pay gap are as complex and varied as the organizations in which it occurs. THe solution, however, is very simple: Require that everyone in an organization knows everyone else’s salary.
In most private, non-union employers, talking about pay is taboo. I’ve even had managers ask if we could have a policy forbidding it (We can’t. The National Labor Relations Act states that employers can’t keep employees from discussing work conditions, and pay is a work condition). And so no employee, and few in management, has a full picture of employee compensation. Without this knowledge, how can employees know if they are being paid fairly, and how can managers make fair pay decisions?
Look at what this same type of openness has done for used car buying. I remember purchasing my first car back in the early nineties. Back then, it was difficult, if not impossible, to find information regarding the true cost of the car, and almost no way to tell whether the car had been in an accident. Car dealers tightly controlled this information so they had the upper hand in any negotiation. Today, thanks to any number of Web sites, information on used vehicles is readily available to the buyer. Now, when I sit down to negotiate the price of a car, I’m doing so from a position of strength.
This same logic can work for pay. Let’s say Jane and Joe are both doing the same job for the same period of time. Jane looks at the published salary list and sees that Joe is earning 10 percent more than she is. She can then go to her manager and ask why. The manager is now in the position of explaining the discrepancy on the basis of sound business reasons, or remedying it. If the manager doesn’t, Jane can file suit against her company. Better yet, she can quit and go to work for someone who will pay her fairly. And if Jane is uncomfortable asking her manager about her pay? Well, then she has no one to blame but herself for the inequity. At best, her manager thinks about her pay once a year at raise time. At worst, her manager doesn’t think about it at all. She needs to speak up if she wants to see changes.
Employers have two reasons not to make pay information public. First, they keep it private for the same reason the car salesmen would keep car price information from you if they could. Their goal is to pay employees as little as possible while still getting the same amount of productivity. It would be harder to underpay someone if that person knew that his/her coworkers were earning a higher wage. In most cases, overall wages would rise.
Second, most employers don’t want to explain to employees why they are paid a certain wage because they have pay practices that are arbitrary. They base pay decisions on unreliable market data and subjective performance ratings. They don’t conduct the internal analysis necessary to determine whether pay is equitable among their own employees. Fixing these systems is hard work and requires constant maintenance. I know. I’ve done it. I’m still doing it. Why go to all the effort if they can simply pick a random number out of thin air?
I consider my pay a personal matter. No one knows what I earn except for my wife. It comes from that Midwestern work ethic. The job is what’s important and talking about money is somehow vulgar. I know that many others feel the same way. One of the main reasons we don’t publish employee pay at my current organization is out of respect for employees’ privacy.
But I am not talking about bragging about salary at parties, or even bringing it up in the company break room. Under this system, employees wouldn’t have to say a thing. The company would do all the disclosing.
Even though we do not have this system at my current workplace, I challenge managers to think as though we did. When determining pay increases or salary offers, I often ask, if an employee came to you to ask why he/she wasn’t making as much as someone else, could you explain it? If you can’t, it’s the wrong decision.
The one obstacle in opening up salary information is that many managers hate conflict. Rather than have uncomfortable discussions about pay, they would simply pay all similarly positioned employees the same regardless of performance. Productivity and morale could suffer if high performers see others being paid the same as them for poorer performance. Managers need to be willing to have those tough conversations about compensation. After all, that’s why they earn the big bucks.
I am the Grim Reaper.
I arrive in your cubicle, cloaked in black, wielding a separation packet like a scythe. With one fell swoop, I terminate you. Your life as you know it changed in an instant.
Your work life at least.
When I started at my current organization, there had been no one to lead HR for about three months. During that time, it seemed like any disciplinary actions, including terminations, were handled with the phrase, “Let the new HR Guy take care of it when he gets here.” So a lot of these unpleasant tasks awaited me when I arrived, and kept me extremely busy my first couple of months.
We had two buildings. Because my days were so full, I only had time to come to the building in which I didn’t work when there was some serious disciplinary action to be taken. I quickly got a reputation. When staff saw me in the building, they would whisper to each other or send instant messages back and forth: What’s HR doing here? Who’s getting fired now?
I’m not stupid. I knew this was happening. Still, there wasn’t much I could do to stop it. That was several years ago. Since then, I’ve been able to come around for positive reasons as well as negative ones. Employees have gotten to know me, know I’m not the company’s Angel of Death. One year, I even came dressed as the Grim Reaper for Halloween and walked around handing out pink slips of paper. Everyone got the joke. Still, I know there are some employees for whom a lump rises in their throat and a chill goes up their spine when I knock on their office door.
What’s most surprising about this reaction to me is that I don’t actually fire anyone. The manager is assigned this unenviable task. I do have influence in the decision, however, and I am usually present. So while I am not death itself, I am the harbinger of bad news.
None of my workplaces have been ones to fire a large number of people. Still, I’ve handled a fair number of them over the years. It’s not a pleasant task. It is also not a decision that should be made lightly. Here are some tips on making that decision, and how to make it at least a little more palatable.
(Disclaimer: These tips are only intended as food for thought, and should not be taken as hard-and-fast rules. They assume an employee is at-will and non-union. Other rules may apply in your workplace. When in doubt, seek professional advice).
1) Base the Decision on Sound Business Reasons: Below are some questions to guide you.
Do I have all the facts?
Have I treated the employee fairly as compared to other employees on my team?
Are there any ulterior motives outside the workplace that influencing my decision?
Will the employee be surprised by this decision. Have the employee been told that what they are or are not doing will get he/she
Would another manager make the same decision?
Is the cost of keeping the employee (in time, energy, money, etc.) higher than the cost of letting the employee go?
Is this a situation where I should consult an attorney before termination?
2) Don’t Drag Out the Decision: Because firing someone is such an unpleasant duty, we often put it off longer than we should. In the meantime, you, your staff, your customers and clients, are all having to put up with this person.
3) Have a Script: I used to think scripts were cold and impersonal. But after some termination meetings that lasted over an hour while the employee and manager argued, the employee tried to bargain, and the manager said things that he/she probably shouldn’t have said out of discomfort in the situation, I changed my mind. A script keeps the conversation short. The decision is made, here is what we are doing and why. Good-bye and good-luck.
4) Be Respectful: These are business decisions, not personal ones. Only in rare exceptions of gross misconduct (like the person who had sexually harassed half my staff. I won’t put up with A-holes) have I had any personal animosity towards the person being let go. I want that person to move on, find a new position, be successful. Being fired is bad enough. It shouldn’t be made worse by having an armed security officer march the person out the door while coworkers watch (Unless it is necessary for safety reasons. See number 6). After the fact, don’t bad-mouth the former employee. It’s best to say as little as possible to others. Take the high road.
5) Understand the Legal Risk, But Don’t Let it Stop You: I’ve heard HR and managers alike say, we can’t fire Jane even if she is a lousy worker. She’ll sue us. Do your homework. Document everything. Seek expert advice from an employment attorney so that you know your risks and how to mitigate them. Almost any fired employee can try to sue you. But if you have your reasons documented, and the reasons are sound, the time, energy and cost of a claim will be far outweighed by the benefit of no longer having this person on your staff.
6) Take Necessary Precautions: Terminated employees becoming violent is a rare. Most termination meetings, or their aftermath, don’t require you to have an armed guard escort you to your car after work. Still, there are some unstable people out there. If you believe you are terminating someone who may become violent, you need to take steps to make sure you, and the rest of those in your organization, are safe. If you do not have security staff that can help you, seek outside resources who are experts in handling these types of situations.
Looking at how difficult it is to terminate people, and the various risks involved, the question arises, Why fire anyone at all? Why not leave them to rot in their chairs. I knew a company that never fired anyone. If someone was not working out, they simply moved that person to some job where they could do no harm. Other high performing employees would have to work even harder to pick up the slack. Some of these people left, others began to slack off themselves. Meanwhile, people who should have been forced to move on, finding new jobs where they could be happy and successful, ended up in miserable, meaningless positions. What the company thought it was doing to be nice was actually not nice at all.
In Ray Bradbury’s story, The Scythe, a man is given a farm (under strange circumstances) in which the stalks of grain represent actual people, and each time he cuts one down with his scythe, a person dies. At one point in the story, he refuses to harvest anymore. People stop dying, instead falling to sleep. They are in a sort of limbo. The man realizes the necessity of death, picks up the scythe again, and begins cutting more furiously than before.
And so it is with firing people. We may regret that the Grim Reaper exists, but what would we do without him?