‘Tis the season to be…sick. I can attest to this, having just endured a particularly pernicious disease: the dreaded and debilitating man-cold.
Over the next several months, employees throughout the country will be missing more work due to sickness. Many of them already have a less than perfect attendance records. Others will injure themselves at work or home or succumb to chronic and sometimes disabling diseases.
- Deciding when to discipline or terminate sick or disabled employees that cannot come to work or cannot do so with adequate frequency and reliability.
- Avoiding Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA), and other claims when dealing with sick and/or potentially disabled employees.
HILL V. CITY OF PHOENIX: WHEN GOOD IS NOT GOOD ENOUGH
Stacia Hill worked for the City of Phoenix police department. Upon returning to work in February 2012 after a lengthy medical leave, Hill advised the City she had ankle problems and a sleep disorder. The City tried to accommodate these disabilities by assigning Hill to the Front Desk Sergeant position, which it characterized as a sedentary desk job, and by giving Hill an 8:00 a.m. to 4:00 p.m. shift, consistent with the recommendations of her sleep doctor.
Hill began arriving late and missing some days of work and her attendance worsened in April and May. Hill’s supervisor then held a “coaching session” with Hill. He told Hill that he would be removing her from one of her positions in order to lighten her workload. Hill stated that she viewed this decision as “punishment” for her previous use of approved leave.
Following this meeting, Hill stopped reporting to work entirely on May 22. On May 23, 2012, Hill’s psychologist drafted a two-sentence letter recommending that Hill “be placed on stress leave beginning on May 22, 2012 for an indeterminable amount of time.” On May 31, the City sent a letter to Hill explaining that the doctor’s letter was insufficient to authorize Hill’s absence because it “failed to identify a medical condition or provide any information as to the nature of the condition, prognosis, course of treatment, symptoms, duration of the condition, or an anticipated date of return to work.” The letter requested additional information explaining why Hill was unable to work.
Around the same, the City sent Hill a letter advising her that her position required her to maintain regular and reliable attendance. Then, Hill’s doctor gave the City a letter explaining that Hill was experiencing “considerable anxiety” which had exacerbated her sleeping difficulties and depression. He recommended that Hill not drive a vehicle, and indicated that it was “difficult [to] pinpoint when she will be able to return to duty, if ever.” Hill’s doctor then provided another letter stating that it was “difficult to say when exactly Ms. Hill can return to work,” but that it would likely be possible once her stress levels improved.
On June 26, 2012, the City sent Hill a letter requesting that she have her doctors complete a “reasonable accommodation medical questionnaire” to “clarify [her] medical conditions.” The letter also informed Hill that she had exhausted her leave time and would need to request a leave of absence if she wished to remain employed. Failure to obtain such leave, the letter warned, would constitute job abandonment.
Hill returned to work on June 28, 2012. However, she began using unscheduled leave again on July 10th, leaving two hours early on that day, and failing to report on the 11th or 12th. On July 13, Hill came to work but left two hours early, complaining about her ankle. She never returned to work again.
On July 17, 2015, Hill’s doctor produced a two-sentence letter virtually identical to the one supplied on May 23rd, again recommending Hill be placed on “stress leave” for an “indeterminable amount of time.” The City responded with a letter advising Hill that her doctor’s letter was not sufficient to authorize her absence, and requesting that she provide acceptable documentation of her medical condition and contact her supervisor immediately regarding her intentions to return to work. The letter further informed Hill that failure to report to work by July 27, 2012 would be classified as job abandonment.
On July 30, 2012, the City sent Hill a letter stating that because she had not reported to work or provided acceptable medical documentation, the Department would classify her as having abandoned her job. The letter further informed Hill that the City would consider reinstating her if she could establish that her absence was due to circumstances beyond her control.
On August 7, Hill sent a letter to the Department’s Chief which stated:
“I wish to inform you that I was absent from my job only because I was instructed not to work by my doctors. If I were able to perform my job, I would be there and I’m certain the City does not want me at work if I’m unable to perform my duties….I request you reinstate me and allow me to remain on unpaid leave until I can complete the LTD application process.”
This request was denied, Hill was fired, and her EEOC claim and lawsuit soon followed.
THE COURT’S DECISION: HILL WINS A HUGE VICTORY
Initially, things look good for the City: the court ruled that Hill was not able to perform the essential functions of her job in or after July 2012, and that no reasonable accommodation would have changed this fact. For this reason, it granted summary judgment and dismissed Hill’s unlawful termination claim.
However, in a big win for Hill, the court also ruled as follows, setting the stage for an expensive and risky (for the City) trial:
“It is not possible to determine … whether Hill’s condition might have stabilized, allowing her to perform the essential functions of her job going forward, had the City engaged fully in the interactive process in May and June 2012—a process that might have led to helpful accommodations. It is similarly impossible to determine as a matter of undisputed fact whether the City engaged in the interactive process in good faith during this time.”
FOLLOW THESE FOUR STEPS AND AVOID THE CITY OF PHOENIX’ FATE
Employers who fail to engage in the interactive process in good faith face ADA liability if a reasonable accommodation would have been possible. The interactive process is an informal undertaking in which the employee and the employer attempt to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. There are four critical steps in the process:
An employer must participate in the interactive process upon receiving notice of the employee’s disability and desire for accommodation or in circumstances in which an employee is unable to make such a request, if the company knows of the existence of the employee’s disability. An employer’s duty to engage in the process continues as long as the employer is aware that the initial accommodation is failing and further accommodation is needed.
The crux of the court’s decision is that the City essentially gave up too soon on trying to accommodate Hill:
“In determining whether a reasonable accommodation would have been possible, the Court considers the accommodations that were possible at the time the interactive process broke down. Thus, it is not dispositive that Hill was not a qualified individual with a disability—i.e., an individual able to perform the essential functions of her job with or without reasonable accommodation—when her employment relationship with the City ended in late July 2012. The relevant question is whether she was such an individual at the time of the City’s alleged failure to participate in May and June 2012. A reasonable jury could find that she was qualified at that time. While it is true that Hill was having trouble maintaining regular and reliable attendance in May and June, a reasonable jury could conclude that she was not fully accommodated at that time, and that she could have maintained adequate attendance if she had been granted additional accommodations (e.g., a transfer to a fully sedentary position, a 4/10 schedule) to assist with the management of her disabilities.”
THE NEXT TIME YOU HAVE A SICK OR INJURED EMPLOYEE…
Expect your conduct in accommodating — or failing to accommodate — a sick or disabled employee to be heavily scrutinized if that employee is subsequently terminated. Months of patience and discipline can be ruined by failing to explore and document all potential accommodations to allow an employee to return to work or have additional time to recover.
Fortunately, Hill-type situations do not occur frequently. But when they do, (1) understand the law and (2) contact experienced employment law counsel to develop and implement a plan that ensures compliance with the law, a fair shake for your employee, and that your business stays out of court.
When not battling man-colds, Art Bourque of Bourque Law Firm can be found here tackling HR, employment, and other business issues for both companies and individuals.
TEN TIPS FOR WRITING EFFECTIVE WORKPLACE EMAILS
“With great power comes great responsibility.”
Uncle Ben, Spiderman
I missed the class on writing workplace emails. You did too? Probably because the class does not exist.
Most of us are left to our own devices, so to speak, when composing emails and hitting the send button — forever losing control of our words. This can lead to many problems down the road. How many of us have read, or sent, regrettable emails?
Perhaps worse are the emails that nobody reads because they are long, winding, and unorganized. Want to be irrelevant? Be a boring, rambling, windbag in your emails.
This article gives business owners, HR professionals, and others simple tools to convey effective messages that will stand the test of time — and scrutiny.
WRITING TO WIN
Steven Stark’s Writing to Win is my go-to book for simple, effective writing tips. As Mr. Stark observes, the average person now gets so much email that the tendency is to read a few lines and then lose interest, especially because email is often read while the recipient is doing something else at the same time. If you want people to read your electronic communications you have to take steps to make them readable.
Here are what I believe are the ten best tips to ensure your emails have the best chance of getting read, understood, and acted upon:
- Lead with conclusions: tell your reader why you are writing them and what you want them to do in response.
- Keep it short — 150 words or less: write anything longer than five sentences and you risk that the email will go unread or be forgotten.
- Write in simple English: that’s right, KISS (keep it simple, stupid) applies to emails.
- Assume unknown readers: your email is a “forward” away from being read by many others; anticipate this.
- Pause and think before you send: the heat of the moment is not the time to send an email; put a timer on yourself when you are mad or fired-up and want to hit send.
- Don’t pick a fight: escalating tensions is rarely effective; can you convey a message or viewpoint without using inflammatory or abusive language? Of course you can.
- If you’re writing anything confidential, inflammatory or contentious, enter the recipient’s name in the “to” box after composing the email: this way you do not risk inadvertently hitting “send” and losing control of an incomplete or unintended email.
- Beware the “reply all” button: need I say more?
- Avoid questionable phrases or sentences: Don’t make comments like “I don’t know if this is legal but…” or “I really shouldn’t put this in writing.”
- Don’t overuse email: excessive emails are a nuisance at least and, much worse, risk making you irrelevant.
GO FORTH AND SPREAD THE WORD(S)
Consider putting the bullet point tips in this article directly into your Employee Handbook or a separate email policy. Too many handbooks and policies tell employees what not to put in emails, but omit any mention of how to write an effective email. For help in updating your employee handbook for 2017, or in developing workplace policies and handling business law issues, contact Art Bourque at Bourque Law Firm.
Otherwise, while you ponder your next email, enjoy this brilliant — and really funny — use of rhetoric in response to an attorney’s nasty demand letter (don’t try this at home):
DOL APPEALS RULING STRIKING DOWN OVERTIME LAW
According the Wall Street Journal, and as anticipated, the US Department of Labor (DOL) is appealing the injunction that halted the December 1 implementation of a sweeping overtime-pay regulation, advancing a federal court battle over a rule that could face an eventual challenge from President-elect Donald Trump.
Labor Secretary Thomas Perez and other department officials filed a notice of appeal on Thursday with the Fifth U.S. Circuit Court of Appeals in New Orleans to defend an Obama administration rule requiring employers to start paying overtime to workers earning salaries of less than $47,476 a year. Ironically, the rule was struck down by Obama appointee, Judge Amos Mazzant of Texas.
The WSJ notes that even barring court action that could permanently block the rule, the regulation could face a challenge from President-Elect Donald Trump, who has said he would be rolling back business regulations he thinks do economic harm. While Mr. Trump hasn’t commented specifically about the overtime-pay regulation, Republicans have criticized the rule as excessive.
What can businesses expect and how can they plan given the legal wrangling?: businesses that did not implement the proposed, but now banned, rule, can continue to operate lawfully under the “old,” existing rule. That rule requires exempt, salaried workers be paid at least $23,660.
The appeals process will likely extend into 2017, be decided by the court of appeals, and then reach a crescendo and conclusion at the US Supreme Court. Separately, expect the Trump administration, after he is inaugurated on January 20, to try and bury the proposed new rule through an administrative and/or executive action.
HR Law Insider will immediately inform businesses if there is any change in the law and what they need to do.
For further information on these or other employment, business, and HR matters, contact Art Bourque at Bourque Law Firm.
NEWS ALERT: JUDGE STRIKES DOWN NEW OVERTIME RULE AS UNLAWFUL
Yesterday, in a shocking decision, and a stern rebuke to the Obama administration, a United States federal court judge in Texas struck down the Department of Labor’s (DOL) new overtime rule that was set to go into effect on December 1.
This brief HR Law Insider article explains all you need to know about the judge’s decision and its huge impact on businesses throughout the nation.
OVER 20 STATES SUED THE DOL TO KILL THE NEW OVERTIME RULE
The DOL’s much ballyhooed regulation that was to raise the salary limit below which workers automatically qualified for overtime pay to $47,476 from $23,660 was set to go into full force and effect on December 1.
However, months ago over 20 states sued the DOL arguing, among other things, that the DOL exceeded its authority in enacting the new regulations. The states contended that Congress’ law — the Fair Labor Standards Act (FLSA) — could not be changed by a fiat of the DOL. In other words, the states contended that the Obama administration’s DOL exceeded its authority.
THE NEW OVERTIME LAW IS DEAD — FOR NOW
Judge Amos L. Mazzant III of the Eastern District of Texas ruled that the DOL has indeed exceeded its authority by raising the overtime salary limit. The judge promptly enjoined (i.e. stopped) the DOL rule from going forward not only in Texas, but nationwide.
Understand, the court’s injunction is a temporary ruling that stops the regulation until the judge can issue a final ruling on the merits. However, the handwriting is on the wall: the judge is highly likely to strike down the regulation when he issues his final ruling.
ELECTION 2016: ARIZONA ADOPTS NEW WORKPLACE LAWS AND PRESIDENT TRUMP IS COMING TO YOUR WORKPLACE
President Elect Donald Trump won in a shocker last night. So too did Arizona employees: Proposition 206, known as the Fair Wages and Healthy Families Initiative, passed comfortably at 59% to 41%.
PROPOSITION 206
Here is an overview of the new law:
Starting on January 1, 2017, Arizona’s minimum wage will increase to $10, then $10.50 in 2018, $11 in 2019, and $12 in 2020. In 2021, the minimum wage will be adjusted each year based on the cost of living.
In dollars and cents, a current full-time minimum wage worker makes $16,744 per year. However, by 2020, such workers will make $24,960 per year.
For restaurants and similar businesses, tipping laws in Arizona will remain the same: employers may pay employees $3 less than minimum wage if they are earning as much, or more than, minimum wage with tips.
The new law also entitles certain employees to paid sick time. Employers with more than 15 employees must provide each worker with 24 hours of paid sick time per year. If a business has more than 15 employees, 40 hours is required.
Sick time is available to employees who have a physical or mental illness, must care for a family member, experience a public-health emergency, or take a leave of absence because of domestic or sexual violence and/or stalking.
DONALD TRUMP AND YOUR WORKPLACE
President Trump will likely have wide-ranging effects on workplace laws and, equally important, how those laws are enforced. From Executive Orders, to selecting Supreme Court Justices that interpret workplace laws, to appointing agency heads who apply those laws (e.g. head of the Department of Labor), a President can greatly impact employers and their workers.
In the coming weeks and months, as President-Elect Trump’s cabinet selections and other appointees come into focus, HR Law Insider and attorney Art Bourque will be right there to help businesses understand the real world climate in which they are operating.
Today, however, is for many a day for celebration or mourning. To assist on that joyful or seemingly perilous journey, here are two songs about change, the first for the “winners” and the second for those wondering what happened.
ARE YOU PROPERLY INSURED?
For two years, Lesley Wilks had car insurance from State Farm, which she obtained through the Manobianco Insurance Agency. Her policy included liability and both uninsured motorist and underinsured motorist coverage.
Wilks later replaced the State Farm policy with a policy from another insurance company. A year later, she decided to switch back to State Farm. When doing so, Wilks asked Manobianco to obtain “the exact same coverage that [she] had previously, full coverage.” Manobianco did not look up Wilks’s prior coverage and procured insurance that did not include underinsured motorist coverage. In the course of signing several insurance forms, Wilks signed a form document which had been filled out by Manobianco to reject underinsured motorist coverage.
Several years later, Wilks was rear-ended by an underinsured driver. State Farm denied the underinsured motorist claim she made under her policy. Wilks then sued Manobianco for malpractice for failing to procure the insurance coverage she had requested.
HOW TO AVOID LESLEY WILKS’ FATE
Wilks v. Manobianco raises an all too common problem: one of the first questions I ask personal injury and business clients when they have been in a crash or suffered a loss or claim is whether they have insurance. However, oftentimes the answer is “I don’t know” or “Yes, but I don’t know how much or what my insurance really covers.”
Many individuals and businesses do not pay attention to insurance until an unforeseen event occurs. Then, they rush through their drawers, files, and closets to search — and hope — for an insurance policy which covers their loss.
This article is a call for individuals and businesses to understand the importance of insurance and conduct an immediate self-audit to ensure that they have adequate coverage. A small amount of effort and thought can reap large dividends.
A LITTLE KNOWLEDGE GOES A LONG WAY
It is not uncommon for car crash victims to be hit by a driver who is either underinsured or has no insurance whatsoever. Typically, such drivers do not have enough assets to satisfy injury claims. It would seem that such a client is out of luck — with no means of collecting damages from the person that hit them. Such is not the case if the person bought uninsured or underinsured motorist insurance coverage.
Uninsured motorist coverage protects you if you’re in an accident with an at-fault driver who doesn’t carry liability insurance. Underinsured motorist coverage, on the other hand, steps in when you’re in an accident with an at-fault driver whose liability limits are too low to cover the damage or medical expenses.
Over the last several weeks alone I have encountered no less than three situations where underinsured motorist coverage, or the lack thereof, was a client’s sole means of being made whole as a result of being hit by an underinsured driver.
To understand the importance of underinsured coverage, here is an example: assume that your case is worth $200,000, but the negligent driver only has $100,000 of coverage. In that case, you can make an underinsured driver claim against your own insurer as long as you have more than $100,000 in underinsured driver coverage. If you had $150,000 in underinsured driver coverage, you would settle with the negligent driver for $100,000, and would settle with your insurer for $50,000. You cannot take the negligent driver’s $100,000 policy and another $100,000 from your policy. You can only take from your policy that amount that exceeds the negligent driver’s coverage.
DEALING WITH YOUR INSURANCE AGENT
Arizona law requires insurers to offer uninsured motorist and underinsured motorist coverage to their insureds. Insurers may prove compliance with the statute by having their insureds sign an Arizona Department of Insurance approved form selecting or rejecting such coverage.
It is therefore critical to carefully review all forms you are asked to sign when obtaining new insurance or update an existing policy.
Avoid a Wilks v. Manobianco scenario: understand the importance of every form you sign and obtain an adequate amount of uninsured and underinsured motorist coverage.
TYPES OF BUSINESS INSURANCE TO CONSIDER
Here are types of insurance that businesses should consider obtaining:
- General Liability Insurance: The type of policy provides both defense and damages if you, your employees or your products or services cause or are alleged to have caused bodily injury or property damage to a third party.
- Property Insurance: This kind of policy typically covers office equipment, computers, inventory or tools due to fire, vandalism, theft, smoke damage etc.
- Business owner’s policy (BOP): A business owner policy packages all required coverage a business owner would need. Often, BOP’s will include business interruption insurance, property insurance, vehicle coverage, liability insurance, and crime insurance . Based on your company’s specific needs, you can alter what is included in a BOP. Typically, a business owner will save money by choosing a BOP because the bundle of services often costs less than the total cost of all the individual coverages.
- Commercial Auto Insurance: This policy protects a company’s vehicles. You can protect vehicles that carry employees, products or equipment. With commercial auto insurance you can insure your work cars, SUVs, vans and trucks from damage and collisions. If you do not have company vehicles, but employees drive their own cars on company business you should have non-owned auto liability to protect the company in case the employee does not have insurance or has inadequate coverage. Many times the non-owned can be added to the BOP policy.
- Directors and Officers Insurance: This type of insurance protects directors and officers of a company against their actions that affect the profitability or operations of the company. If a director or officer of your company, as a direct result of their actions on the job, finds him or herself in a legal situation, this type of insurance can cover costs or damages lost as a result of a lawsuit.
- Data Breach: If the business stores sensitive or non-public information about employees or clients on their computers, servers or in paper files they are responsible for protecting that information. If a breach occurs either electronically or from a paper file a data breach policy will provide protection against the loss.
- Professional Liability Insurance: This type of insurance is also known as errors and omissions insurance. The policy provides defense and damages for failing to or improperly rendering professional services. Professional liability insurance is applicable for any professional firm including lawyers, accountants, consultants, notaries, real estate agents, insurance agents, hair salons and technology providers, among others.
CONCLUSION
The Southwest leads the nation in uninsured motorists, with New Mexico at a staggering 29% and Arizona not far down the list at 18% (see the graphic below).
Given these depressing numbers, be sure to have a plan when you walk into your agent’s office to buy insurance. Understand what you sign. Your financial future may depend on your preparation and diligence.
For further information on personal injury claims, obtaining insurance or making insurance claims, and general tort and commercial matters, contact Art Bourque at Bourque Law Firm.
“LOCKER ROOM TALK” STARTED THE SEXUAL HARASSMENT LAWSUIT REVOLUTION
Donald Trump has re-popularized the term “locker room talk.” The euphemism, which Trump used to explain away his comments about women on a videotape that emerged last week, has different meanings to different people.
Trump downplayed his comments as harmless. Many others, however, viewed Trump’s words as harassing, threatening, and demeaning. Whatever your belief, so-called locker room talk was the main catalyst behind the explosion of sexual harassment lawsuits some 30 years ago and clearly has not gone away.
Through the real-life story of Beth Ann Faragher, this article provides readers with a historic and revealing look at Title VII — the main law which prohibits sexual harassment and discrimination. Equally valuable, this edition of the HR Law Insider explains how and why “locker room talk” gets companies sued, and provides businesses specific tools to prevent sexual harassment.
TITLE VII: HOW A YOUNG WOMAN LIFEGUARD CHANGED THE WORLD
I had a Forrest Gump moment in 1986. As a young ocean lifeguard in Hollywood, Florida, I witnessed first-hand the male-dominated culture of the Beach Patrol — in our locker room and on the beach.
Little did I know, just up the road, working with men I knew and competed against in lifeguard competitions, Beth Ann Faragher, a lifeguard with the City of Boca Raton, was on her way to making US Supreme Court history.
Sexually harassed for the better part of five years, Faragher brought claims against Boca Raton under Title VII. After a hard-fought trial, the court found:
“From time to time over the course of Faragher’s tenure at the Marine Safety Section, between 4 and 6 of the 40 to 50 lifeguards were women. During that 5-year period, Chief of the Marine Safety Division Terry repeatedly touched the bodies of female employees without invitation, would put his arm around Faragher, with his hand on her buttocks, and once made contact with another female lifeguard in a motion of sexual simulation. He made crudely demeaning references to women generally, and once commented disparagingly on Faragher’s shape. During a job interview with a woman he hired as a lifeguard, Terry said that the female lifeguards had sex with their male counterparts and asked whether she would do the same.”
Marine Safety lieutenant David Silverman behaved in similar ways. He once tackled Faragher and remarked that, but for a physical characteristic he found unattractive, he would readily have had sexual relations with her. Another time, he pantomimed an act of oral sex. Within earshot of the female lifeguards, Silverman made frequent, vulgar references to women and sexual matters, commented on the bodies of female lifeguards and beachgoers, and at least twice told female lifeguards that he would like to engage in sex with them.”
The court of appeals, however, reversed the trial court and found in favor of Boca Raton. This led to the landmark US Supreme Court decision in favor of Faragher in 1998.
Faragher’s odyssey began in the 1980s, a decade which witnessed an explosion of sexual harassment cases under Title VII. That’s right, it took about 20 years for a cultural shift to “allow” cases to be brought under a law that was passed the year The Beatles started the British Invasion in America.
The Faragher decision is obviously important for its legal precedent in holding employers liable for sexual harassment. The historic ruling also provides businesses with a road map as to how to avoid sexual harassment claims.
HOW BUSINESSES CAN PREVENT SEXUAL HARRASSMENT
The facts in Faragher lawsuit are very typical of the sexual harassment allegations I have observed over 25 years of representing businesses and individuals: uncontrolled behavior by men in positions of power and/or an overall work culture that enables, encourages, or permits bad behavior.
Regardless of one’s beliefs about the Trump situation, allowing such talk in a work environment is a sure-fire way to be on the receiving end of an EEOC charge of discrimination. Here are specific, time-tested tools to prevent locker room talk in your workplace and avoid the fate of Boca Raton :
- Management and employees should receive sexual harassment and discrimination training from counsel once a year.
- Employee handbooks should be carefully drafted and specifically reviewed during the training.
- Sexual harassment and discrimination policies should be discussed in detail; hypotheticals should be played-out to understand how the policy will work in real time/life.
- All businesses should have a personal relationship policy, particularly regarding supervisors and managers having relationships with those that they supervise/manage.
- Managers should read the Faragher case — it takes 20 minutes; by understanding the underpinnings of the law, managers will know why their handbook says what it says, how to identify and prevent harassment, and what to do, and what not to do, when harassment is alleged.
- Leaders should constantly assess company culture; live by the credo: “There are no bad teams, only bad leaders.”
- Leaders should focus on hiring and training those people who will fit within a culture that condemns and punishes discrimination and harassment.
- Contact counsel when there is a potential complaint about harassment or discrimination; such complaints rarely occur, and, in my experience, are often addressed and resolved quickly and inexpensively with an experienced hand and laser focus.
- Once a complaint of harassment is reported, understand that any discipline or negative treatment towards the complainant will bring a high risk of a retaliation claim.
- Do not overlook inappropriate, stray comments; instead, view them as red flags to monitor or act on immediately to get ahead of a larger problem.
- Detach and observe how managers and employees treat each other at the office, in the field, and at social events. Thinking or saying “he’s just like that” or “that’s just who he is” is unacceptable when dealing with someone conducting themselves in a way that is unaligned with your company’s culture.
- Do not slide: review this bullet point list once every quarter and ask: “is our company doing these relatively simple things to prevent and/or deal with sexual harassment and discrimination”?
CONCLUSION
To understand the root problem and cure for sexual harassment one should do more than adopt wooden, form policies from attorneys or websites. Instead, endeavor to understand the “culture” in which sexually harassment thrives.
Once one understands the roots of sexual harassment, it is far easier to avoid it in the first instance and, failing avoidance, to identify, combat and eradicate the ugly disease.
EPILOGUE
Here is a fascinating footnote about Title VII’s enactment: Unlike today, when congressional votes are typically cast along party lines, in 1964 Title VII’s vote occurred along geographical lines — with the North for Title VII and the South against.
The House vote:
- Southern Democrats: 7–87 (7–93%)
- Southern Republicans: 0–10 (0–100%)
- Northern Democrats: 145–9 (94–6%)
- Northern Republicans: 138–24 (85–15%)
The Senate vote:
- Southern Democrats: 1–20 (5–95%) (only Ralph Yarborough of Texas voted in favor)
- Southern Republicans: 0–1 (0–100%) (John Tower of Texas)
- Northern Democrats: 45–1 (98–2%) (only Robert Byrd of West Virginia voted against)
- Northern Republicans: 27–5 (84–16%)
LAST NIGHT’S DEBATE: DO NOT TRY THIS AT HOME OR IN THE WORKPLACE
Any momentary triumph you think gained through argument is really a Pyrrhic victory: The resentment and ill will you stir up is stronger and lasts longer than any momentary change of opinion. It is much more powerful to get others to agree with you through your actions, without saying a word. Demonstrate, do not explicate.
Robert Greene
Many will view last night’s debate as a national embarrassment. Most, of course, will take their candidate’s side: if one is a Clinton fan, the debate will confirm the position that she is the only choice; and if Trump is your pick you may well have experienced a vicarious rush and excitedness when he threatened to send Clinton to jail.
But was either candidate’s argument truly effective? Would you counsel a workplace manager, employee, or spouse to debate contentious issues this way? Of course not.
This article explores how to persuade others not with argument, but through effectively demonstrating the merits of one’s position. Such a skill is critical in the workplace and beyond.
MICHELANGELO KNEW THE POWER OF DEMONSTRATION OVER ARGUMENT
Robert Greene’s The 48 Laws of Power captures the power of demonstration over argument with the true story of one of the greatest pieces of art ever created — David by Michelangelo:
In 1502, in Florence Italy, an enormous block of marble stood in the works department of the church of Santa Maria Del Fiore. It had once been a magnificent piece of raw stone, but an unskilled sculptor had mistakenly bored a hole thru it where there should have been a figure’s legs, generally mutilating it. Piero Soderini, Florence’s mayor, had contemplated trying to save the block by commissioning Leonardo da Vinci to work on it, or some other master, but had given up because everyone agreed that the stone had been ruined. So, despite the money that had been wasted on it, it gathered dust in the dark halls of the church.
This is where things stood until some Florentine friends of the great Michelangelo decided to write the artist, then living in Rome. He alone, they said, could do something with the marble, which was still magnificent raw material. Michelangelo travelled to Florence, examined the stone, and came to the conclusion that he could in fact carve a fine figure from it, by adapting the pose to the way the rock had been mutilated. Soderini argued that this was a waste of time — nobody could salvage such a disaster — but he finally agreed to let the artist work on it. Michelangelo decided that he would depict a young David, sling in hand.
Weeks later, when Michelangelo was putting the final touches on the statue, Soderini entered the studio. Fancying himself a bit of a connoisseur, he studied the huge work, and told Michelangelo that while he thought it was magnificent, the nose, he judged, was too big. Michelangelo realized that Soderini was standing in a place right under the giant figure and he did not have the proper perspective. Without a word, he gestured for Soderini to follow him up the scaffolding. Reaching the nose, he picked up his chisel, as well as a bit of marble dust that laid on the planks. With Soderini just a few feet below him on the scaffolding, Michelangelo started to tap lightly with a chisel, letting the bits of dust he had gathered in his hand to fall little by little. He actually did nothing to change the nose, but gave every appearance of working on it. After a few minutes he stood aside: “Look at it now.” “I like it better,” replied Soderini, “you’ve made it come alive.”
Michelangelo knew that by changing the shape of the nose he might ruin the entire sculpture. Yet Soderini was a patron who prided himself on his aesthetic judgment. To offend such a man by arguing would not only gain Michelangelo nothing, it would put future commissions in jeopardy. Michelangelo was too clever to argue. His solution was to change Soderini’s perspective (literally bringing him closer to the nose) without making him realize that this was the cause of his misperception.
Fortunately for posterity, Michelangelo found a way to keep the perfection of the statue intact while at the same time making Soderini believe he had improved it. Such is the double power of winning through actions rather than argument. No one is offended, and your point is proven.
PRACTICAL APPLICATION OF THE RULE
Last night’s debate once again proved that words are a dime a dozen. People are easily offended, often resentful, and rarely change their mindset. As Robert Greene explains:
Everyone knows that in the heat of the argument, we will all say anything to support our cause. We will quote the Bible, refer to unverifiable statistics. Who can be persuaded by bags of air like that? Action and demonstration are much more powerful and meaningful. They are there, before our eyes, for us to see — “Yes, the statue’s nose does just look right.” There are no offensive words, no possibility of misinterpretation. No one can argue with a demonstrated proof. “The truth is generally seen, rarely heard.” Baltasar Gracian.
CONCLUSION
Win with action and demonstration, not words. By way of example, disciplining an employee with such invectives as they are a “poor performer” or “cannot be trusted” is wholly ineffective to turn the employee’s performance around and, at the same time, will cultivate resentfulness and dissent. At best, you have not helped the situation. At worst, you have created an enemy.
Similarly, do not be deceived when you are on the receiving end of “words.” For example, as an investor, focus on facts, data, and objective metrics rather than vague promises of future success. Otherwise, you will find yourself on the losing end of an investment and without the tools to ask the right questions and obtain real answers.
Who will win the war of words this presidential cycle? I certainly do not know. However, I do know that most of us are better off turning down the volume or turning off the TV and social media. If you do, and want to be entertained by a master at the art of persuasion through demonstration, watch the movie Up in the Air [warning: language]:
RELYING ON REPUTATION: LIVE BY THE SWORD, DIE BY THE SWORD
“A good reputation is more valuable than money.”
Publilius Syrus
Those who cultivate a good reputation know its priceless value and almost magical quality. Once built, a solid reputation can open the corridors of power. Money, praise, and devotion often follow. What’s not to like about reputation?
Blind faith in another’s reputation can, however, be very dangerous. This article peeks behind reputation’s curtain — shining the light on its sinister underbelly. Indeed, many of us would be better served not to rely on reputation.
This edition of the HR Law Insider posits that instead of relying on reputation, one should develop his or own belief regarding potential business partners and employees. Then, this article provides real world guidance as to how to avoid becoming entangled with those that appear to be paragons of success and virtue.
REPUTATION’S THIN ROOTS AND SHAKY FOUNDATION
“Everyone prefers belief to the exercise of judgment.”
Seneca
Reputation is defined as “the common beliefs or opinions that are generally held about someone or something.”
Phrased in a different way, reputation is a belief one reaches not on the basis of facts, evidence, or experience, but on the beliefs of others. Should one trust such a belief?
Bernie Madoff’s reputation was impeccable, before it wasn’t. For decades Madoff was revered by the wealthiest, most sophisticated investors. Before his vast Ponzi scheme was uncovered, investors clamored to give Madoff their money. To be seen with Madoff, or to be near him, gave many the feeling that they had entered the very corridors of power.
When one currently observes a picture of Madoff, one sees the quintiseential conman. Now, it is “easy,” in hindsight, to see that Madoff was a fraud.
HOW TO AVOID THE REPUTATION TRAP: DO NOT FOLLOW THE HERD
No One Would Listen is a thrilling story of how Harry Markopolos, a little-known number cruncher from a Boston equity derivatives firm, uncovered Bernie Madoff’s scam years before it made headlines, and how he desperately tried to warn the government, the industry, and the financial press.
No One Would Listen demonstrates how Madoff used his reputation as diabolical tool to woo the world’s “smartest” investors. In the end, just before his demise, Madoff’s reputation was so good that he no longer needed to solicit investors — they came to him.
How will the next mini-Madoff you meet try and make you come to him?:
- He will have carefully grown a social and business network of name people and companies. How could someone so connected, with such a brilliant reputation, not be a winner and leader in his field?
- He will make it appear as though he is doing you a favor by working with you. Time and again a conman will tell people that his sole objective is simply to “help” people. How fortuitous that he chose you to help!
- Ironically, many unscrupulous types forge reputations by starting charitable organizations, making “giving back” a central theme, and/or appearing at high profile charity events. How could a philanthropist be bad?
- Those trading on reputation will present an appearance of wealth and success, and seem so generous as to be selfless. Selfless people are to be trusted, right?
- There may be a religious or spiritual component to reputation. Religious and spiritual people are “pure” in many peoples’ eyes — their reputation is beyond reproach.
- He will obtain the endorsement from, or membership in, seemingly well known organizations. Here’s a little known (outside the legal community) trade secret: did you know that lawyers pay money and have friends endorse them in order to get on those seemingly exclusive “Top 50 Lawyers” lists and magazines?
- Reputation can be built in as little as hours or days on internet, which has made it easier than ever to cultivate reputation.
CRACKING THE CODE
Ignoring reputation is simple, but not easy. Those who cultivate solid reputations are very skilled at their craft. The siren song of a good reputation has fooled many a smart business person and investor.
Due diligence and common sense are the keys to overcoming the instinct to rely too heavily on reputation. For example, consider a significant background check and otherwise thorough vetting when hiring a key employee or business partner.
Do not stop there, however. Always be willing to ask challenging questions of your employees, business partners, and others with whom you trust your money or livelihood. Defensive responses and ambiguous (non)-answers are obvious clues that something is amiss.
Asking good questions and evaluating the veracity of the answers is much easier when one is not left starry-eyed by another’s seemingly “impeccable” reputation. In short, do not whistle past the graveyard — always be willing to be objective and proactive about your situation.
Avoid confirmation bias. This is “the tendency to search for, interpret, favor, and recall information in a way that confirms one’s preexisting beliefs or hypotheses, while giving disproportionately less consideration to alternative possibilities.” Time and again I have seen this bias lead successful business people to ignore hard data, stay in bad deals, or continue to believe in unscrupulous business partners or employees.
In conclusion, be your own Sherlock Holmes. Make it your business to know who you are dealing with. Use your cognitive tools to separate the wheat from the chaff.
As you ponder these ideas, enjoy some of my favorite — and applicable — Sherlock Holmes quotes:
- “It is a capital mistake to theorize in advance of the facts. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts.”
- “Never trust to general impressions, my boy, but concentrate yourself upon details.”
- “The world is full of obvious things which nobody by any chance ever observes.”
- “How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?”
- “My name is Sherlock Holmes. It is my business to know what other people don’t know.”
- “I shall be my own police. When I have spun the web they may take the flies, but not before.”
For further information on hiring and managing employees, business partnerships, employment and shareholder disputes, or other general commercial matters, contact Art Bourque at Bourque Law Firm.
EEOC INTENSIFIES SCRUTINY OF WORKPLACE WELLNESS PROGRAMS
As Americans become increasingly more sedentary and less fit, workplace wellness programs offer a “win-win” solution: companies reduce their healthcare costs and increase worker productivity; employees become more healthy and less prone to injury and disease. What’s not to like about that?
As wellness programs proliferate, however, so too does their scrutiny by the government, principally the EEOC. This article helps companies and wellness program administrators navigate the landmines that that may be encountered by growing government regulation and oversight.
THE EEOC IS NOT PUMPED-UP ABOUT WELLNESS PROGRAMS
This past Thursday a federal court ruled in favor of the U.S. Equal Employment Opportunity Commission (EEOC) in a disability discrimination case involving wellness programs filed against Orion Energy Systems.
In the Orion lawsuit, the EEOC argued that Orion required Wendy Schobert to submit to medical testing as part of a wellness program or pay 100 percent of the premium for the employer-provided health insurance. The EEOC contended that this violated the Americans with Disabilities Act’s (ADA) prohibition against involuntary medical exams. Orion, however, contended that its wellness plan was covered by the ADA’s so-called “insurance safe harbor,” and thereby was excused from ADA compliance except if it operated as a subterfuge. Orion also argued that the plan was lawful under the ADA because it was voluntary.
The district court rejected Orion’s safe harbor argument, and held that the plan was subject to ADA review. However, the court found that the wellness plan was lawful under the ADA because it concluded that the employee’s decision whether to participate was voluntary under that statute. Nonetheless, the court decided that there were issues of fact regarding whether Schobert was fired because of her opposition to the wellness plan, and rules that the case would be set for (an expensive) trial.
John Hendrickson, the regional attorney for EEOC’s Chicago District Office, remarked that the court’s ruling “establishes that there is no easy out for employers from ADA scrutiny.”
WHERE DO WE GO FROM HERE?
Good health is a priceless commodity. Wellness programs will continue to offer companies and employees a wealth of benefits — both to the bottom line and the bottom that sits in a chair most of the day (i.e. most of us).
As they grow, however, Companies’ wellness programs will be subject to increasing government scrutiny. Equally so, with the Orion decision, plaintiffs’ lawyers and government agencies will be on the hunt for companies that fail to comply with the law.
For example, many employers believe that a dispute or injury involving a wellness program is “separate” from a workplace dispute or injury and not subject to HR laws. Most of time this is not the case. Thus, employers should treat any employee wellness issue as a workplace issue (e.g. a wellness program injury is likely to be covered by workers compensation laws).
Is this a problem? No, not if companies and employees stay abreast of the law and work together to develop and participate in lawful wellness programs. How can this be done? Easily. By consulting professionals and reading the HR Law Insider, companies and program administrators will stay current with the law.
CONCLUSION
As we near the year end, I hope you have stuck with your health and fitness goals for 2016; if so, congratulations. But if not, consider starting now rather than waiting for another January 1 to roll around.
Start, for example, by reading motivating and informative articles and books that will provide an impetus for change. Dr. Phil Maffetone’s Big Book on Health and Fitness lays out a sensible and holistic road map that makes health and fitness an ingrained part of one’s lifestyle, and an easy-to-achieve goal for both men and women at any age (I have no affiliation with Dr. Maffetone other than as a huge fan).
As you are contemplating “getting after it,” be inspired by watching a movie or two from my personal top ten list of great sports movies (below). Hold the cheese, however, as several of these movies have enough Velveeta to fill a small cheese factory.
For wellness program questions, further information on other employment law topics, or if you want to hit some weights, go for a run, or join me on a bike ride, contact Art Bourque at Bourque Law Firm.
In any event, try and start moving now — today. Each day presents an opportunity to start anew. As Henry David Thoreau said: “Only that day dawns to which we are awake. There is more day to dawn. The sun is but a morning star.”
TOP 10 SPORTS MOVIES [OK, TOP 20!]
- Rocky
- Chariots of Fire
- The Karate Kid
- Field of Dreams
- Pumping Iron
- The Longest Yard
- Rudy
- Hoop Dreams
- Bad News Bears
- Slapshot
- When We Were Kings
- Touching the Void
- Breaking Away
- American Flyers
- The Wrestler
- Hoosiers
- The Jericho Mile
- Meru
- Remember the Titans
- Perfect