Archive for the 'Management' Category


There are some interesting things going on over in Detroit.  According to the Detroit Free Press, former Detroit Corporation Counsel Kathleen Leavey is suing the City of Detroit claiming “she was demoted when she described the court as “ghetto court,” during a conversation in January. Leavey says she was forced to resign her post as interim corporation counsel after [Chief Judge Marylin] Atkins contended in a letter that the ghetto remarks were racist.”  The lawsuit claims reverse race discrimination among other things.  Ms. Leavey is white.  During discovery in the case, Deputy Mayor Saul Green was asked by Ms. Leavey’s lawyer if the use of the “N” word was more offensive when it was used by a white person than when it was used by a black person.  Mr. Green was instructed by a city lawyer not to answer the question and he did not.  Now Ms. Leavey’s lawyer wants to take Mr. Green’s deposition again and get an answer to his question.  You can see the Free Press article here:–ghetto-court–lawsuit

So, while the City claims this question has nothing to do with Leavey’s suit, this is an interesting question right?  After all, that particular word is hate filled and inappropriate, and yet we hear it come out of the mouths of rap singers and comedians all the time.

Now I have what some of you may consider a radical thought, it’s a bit off point and probably has nothing to do with the Leavey case, but then again this is an employment law blog not a news blog and I’m trying to make a point here.  Here it is: the work place is not a rap song or a comedy stage and the “N” word, along with a bunch of other words that have nothing at all to do with race are just not appropriate for the workplace.  And I frankly don’t care who says them, whether it is someone who happens to be white, or black or a little green person from Mars.  If you are a polite adult you do not use words that you know may offend someone else, especially someone you have to work with all day.  What happened to manners?  Anybody with any common sense at all should know that some words just might offend some people.  Don’t say them at work.  Don’t say them to your coworkers when you are not at work.  Get some manners and don’t say them at all.  But if you just can’t stop yourself from saying things that probably will offend a coworker, then don’t be surprised when you get disciplined for it.


I was sitting in one of the partner’s offices today with a couple of the partners of the firm.  One of them, who shall remain nameless, was asking our opinion on a new watch he had just purchased.  It is a really very nice watch.  (Just in case he is reading this).  One of us referred to the watch as a chronograph. Frankly we were not sure if it is a chronograph because it is a single function analog watch. So we looked up chronograph and discovered that a chronograph is a watch that also has a stop watch function.  Interesting right?  A little window into the fascinating practice of law.


OK, not really, but I told you all of that so I could tell you this.  As I left the room I mentioned that today was a good day because we had all learned something.  This popped into my head because, well, I’m odd like that, and earlier in the day I had been listening to the Dan Patrick radio show.  At the end of each show, Mr. Patrick asks all of this coworkers what they “learned today.”  The people on the show then take turns telling the audience what they “learned” from the guests on the show.


Now Mr. Patrick may be doing this as a joke, or as a simple consistent way to end the show, I don’t know, but I think it’s kind of cool.  It is also something that supervisors might want to copy.  OK, not really copy, because you don’t have a radio show and I’m not really suggesting you ask all of your subordinates what they learned today.  In fact, you need to modify this little habit a bit to make it work for you as a supervisor. But what if you asked yourself every day, or week, “What did I learn about one of my employee’s today?” 


If the answer to that question is “nothing” well then it was not a very good supervisory day was it?  But if you make a habit of this and start learning something new about your employees and how they feel about their work every day or week then that means you were probably out talking to them.  And if you are out talking to your employees then they just might think that you are actually interested in them.  And if they think you are actually interested in their lives and what is going on they may just come to you when they have a problem or a concern and not go to someone else, like oh, I don’t know, a union steward. 


And that makes you a better supervisor now doesn’t it?  So what did you learn today?


So, is everyone sick of reading and hearing about H1N1 yet?  I am.  But what I’m really tired of hearing about is all the so called experts telling employers what they need to do when the flu hits the workplace.   “Drop your dr. slip requirement for people who are sick!”  “Pay everyone to stay home when they are sick!”  Come on, really?  Anyone know how you are supposed to pay for this?  I even read one article that quoted some government study that said something like “3 out of 5 businesses will suffer major disruptions in production if half of their employees are out of work for 2 weeks.”  Are you kidding me?  Listen, if you can survive 2 weeks with half of your staff out of work, I don’t know how to tell you this, but you just may be a bit overstaffed.


So how about some practical, lets not panic, what can I really do now advise?  Ok, let me give it a try. 


First of all, bone up on your FMLA knowledge.  The recent amendments to the FMLA make it very clear that the flu, as long as the employee is incapacitated for 3 full calendar days and gets treatment once within 7 days of first becoming incapacitated and again within 30 days or gets a prescription, is covered by the FMLA (how’s that for a run on sentence).  This is good for a couple of reasons:  First, it gives the employee some comfort that their mean old employer can’t fire them while they are out sick.  Second, it gives the mean old employer the medical information he needs so the employee can’t play games with sick time.


Next, go to the CDC website at  Copy this part and post it in the break room where everyone can see it:


Take these everyday steps to protect your health:

  • Cover your nose and mouth with a tissue when you cough or sneeze. Throw the tissue in the trash after you use it.
  • Wash your hands often with soap and water, especially after you cough or sneeze. Alcohol-based hand cleaners* are also effective.
  • Avoid touching your eyes, nose or mouth. Germs spread this way.
  • Try to avoid close contact with sick people.
  • If you are sick with flu-like illness, CDC recommends that you stay home for at least 24 hours after your fever is gone except to get medical care or for other necessities. (Your fever should be gone without the use of a fever-reducing medicine.) Keep away from others as much as possible to keep from making others sick.


And then, here are a couple of other things I thought of on my very own, that don’t require you to break the bank and start a whole new benefit program:


Go out with petty cash and by a bunch of tissues and alcohol based hand cleaner.  Spread them around the office.


Cancel unnecessary meetings and tell your employees to do the same.  Why get people together in a small room and let them all get sick if you don’t really need to get together at all.  Plus, when the panic is over you might find out you didn’t really need that meeting to begin with.


Let people know that where you can, and where it is necessary, you will push off deadlines.  This might take some of the pressure off and indirectly encourage sick people to stay home.


Think about letting people work from home when they are sick or they have a sick family member and they want work.  That way they still have some cash coming in and you still have work being done.  And you don’t have sick people walking around the office spreading their germs. 


These are just a couple of things I thought of off the top of my head.  They might not work for you and then again they may.  Bet if you thought about it you could come up with some other ways to prepare without writing a new benefit plan.  If you do, send a comment.


So imagine that you are in an employee meeting.  Every high ranking employee of the company is at the meeting. The CEO of the company, is addressing the crowd.  “We are in bad shape” he says and “we need to fix it.”  Then imagine in the middle of the speech ONE OF YOUR EMPLOYEES, SOMEONE WHO WORKS FOR YOU DIRECTLY, yells out that the CEO is a liar.  How would you feel?  How about mortified?  OK, OK, not my most subtle example.  But the incredible incivility we all witnessed in the House of Representatives chamber Wednesday evening is unfortunately just one more example of incredible lack of manners that seems to be all to common today.  When did it become acceptable or even admirable in some people’s minds for someone to behave this way?


So, you  might ask,  how does this relate to employment law?  Like this . . . . When an employee breaks the rules, sometimes an apology just isn’t good enough.  Sometimes you need to fire them.  When, you might ask?  Well, I am not in the business of telling you when to fire someone and when not to.  But I can give you a list of some things I think can reasonably take an employee to the head of the line:  How about stealing?  Or an egregious violation of your harassment or EEO policy?  And how about insubordination?  Hold, it, now, insubordination is a bit different isn’t it?  The definition seems a bit fuzzier.  You see, if an employee steals or violates the harassment policy the context in which they did that doesn’t seem to matter as much.  But call the CEO of the company a liar and the content DOES matter doesn’t it?  Do it behind closed doors and sometimes the CEO needs to have thick skin and simply take it.  Do it in public for all the world to hear and it seems to me that action should get you a map to the door and an escort out.  That’s why your progressive disciplinary policy needs to allow you the freedom to impose whatever penalty you deem appropriate. 


Now I know what you are thinking.  That congressman who showed such inconsiderate behavior does not work for the President, and you are right.  He works for the people of his district.  Well let me tell you this, if I were his boss, he would be well advised to start looking for a new job.


This is a reprint of something I did for our newsletter sometime back. I thought that since more of you have access to this blog than to our newsletter I would reprint it.  (Plus I don’t have to come up with something original today).  Some of the data is a bit out of date, but I think the point remains valid.  Here you go:

So, you are a frontline plant supervisor at the ACME Widget Company. What on earth is your job?

Is it to make more widgets in a more cost-effective manner to contribute to the bottom line? That might be exactly what your job description says, and if it does not say this exactly in the same way it probably says something eerily similar, written by some more senior member of management who is even farther away from the actual production process than you are.

So is your job really to make more widgets more cost-effectively? If so, I wonder, when is the last time you picked up a wrench or operated a machine? I’ll bet it has been a while, because as a supervisor your job isn’t really to make the widgets. It is to motivate the people who are actually making the widgets to make “more widgets in a more cost-effective manner,” isn’t it?

When I became a production supervisor more years ago than I care to remember, my Uncle Angelo, who was a production supervisor at the same plant, told me, “Well, that’s the last time you’ll actually do any productive work.”

Turns out he was more right than he knew . . . I went to law school. But really, what wise Uncle Angelo was saying was I was no longer actually making the bread. (We worked in a bakery.) Instead, I was watching over others who actually made the bread.

So, I’m a supervisor; what exactly do I do for a living?

The answer should be that I motivate and inspire people to do a better job. In short, I make sure I have happy people who are satisfied with their work so that they in turn can be more productive and make better widgets in a more cost-effective manner to contribute to the bottom line.

I wonder how I am doing?

So I looked. According to Lisa Takeuchi Cullen, a staff writer for Time magazine who writes a great blog called “Work in Progress,” I’m not doing very well. Ms. Takeuchi Cullen, in an Aug. 21, 2007, post entitled “Three Signs of a Miserable Job,” points to a recent Gallup Poll that found that about 77 percent of Americans hate their jobs. That’s right, HATE! (See

Not satisfied with the raw numbers, Ms. Takeuchi Cullen went in search of the “why” and found author Pat Lencioni, whose new book is entitled, oddly enough, “Three Signs of a Miserable Job.” Now I have not read Lencioni’s book, but according to Ms. Takeuchi Cullen, Lencioni claims there are three signs of a miserable job:

The first is anonymity, which is the feeling that employees get when they realize that their manager has little interest in them as a human being and that they know little about their lives, their aspirations and their interests.

The second sign is irrelevance, which takes root when employees cannot see how their job makes a difference in the lives of others. Every employee needs to know that the work they do impacts someone’s life—a customer, a coworker, even a supervisor—in one way or another.

The third sign is something I call “immeasurement,” which I realize isn’t actually a word. It’s the inability of employees to assess for themselves their contribution or success. Employees who have no means of measuring how well they are doing on a given day or in a given week must rely on the subjective opinions of others, usually their managers, to gauge their progress or contribution. (See

This struck me as odd. After all, where are the complaints about the lousy pay and the crappy benefits? Why aren’t these people complaining about that and how can this be right?

So I looked. According to an AFL-CIO survey when dignity is a key issue at a plant, unions win elections at a rate of about 55 percent. Conversely, when wages are the key issue, the union win rate is only about 33 percent. Maybe Lencioni is on to something here?

I have to tell you, thinking back to my seven years as a first-line supervisor, I just don’t like this at all. I can’t blame lousy pay for turnover? I can’t blame substandard benefits for employee dissatisfaction? You mean the key to happy, satisfied employees is right in my own hands?

You bet it is.

And if you are not a first-line supervisor, if you are a member of upper management or work in HR, it is in your hands too.

Take an interest in what your employees are doing in their lives; it is not that hard. Talk to them. More importantly, listen to them. Walk around and see what they are doing. Make sure your employees know how their jobs contribute to the overall success of the enterprise and how they fit into the success of the company. You don’t have to be doing some noble thing to be contributing. Show employees that every job matters to the success of the business and the satisfaction of the customers. Show them how they fit. Sit with them and work out a system of measuring their individual success and how that success impacts the team and organization.

If you are a member of upper level management or HR, promote people who have the ability to do these things, not just people who are good at making widgets. Take an interest in making sure that your supervisors take an interest and reward them when they do it well.

Before you know it, you might like your job better too.


Can’t open the paper, can’t turn on the TV, and can’t click the ON button on your computer without being blasted with news of the ongoing economic downturn.  At business all over this country, the exit is getting a lot more use than the entrance.  Seems like all companies are doing today is laying people off.  With all of this attention on getting people out of the door, we are not paying a lot of attention to the right way to get people in the door.  Frankly, it’s starting to show.  For example, take a look at Johnson v. Proline Concrete Tools, No. 08-909, ED CA, 2009.  You see, Lindsey Johnson applied for a position at Proline.  During the interview she was asked about her plans to have more children and told that it would be tough to do the job with a newborn at home.  Ms. Johnson got the job.  She must have assured the interviewer that she didn’t plan on having any more children. 


Well, guess what?  That’s right, Ms. Johnson got pregnant.  Seems her supervisor was not happy, at least that’s the way she told it to the court.  Shortly after Ms. Johnson announced her pregnancy the company announced a downsizing and guess who got let go.  Ms. Johnson, that’s who.  Now aren’t we all shocked?  Oh, the company let a guy go too.  Some lawyer probably told them to do that so it would look better.  Thing is some months later the company hired men to do jobs strikingly similar to what Ms. Johnson was doing.  Anyone want to guess what Ms. Johnson did next?  That’s right she sued. 


Now the company defended by saying it had a legitimate business reason for letting Ms. Johnson go, the downsizing, and so the case should be dismissed.  The Court, in what I am sure was a statement dripping with sarcasm said something like Nice try, but I don’t think so.  The court held that Ms. Johnson had plenty of evidence to prove that her pregnancy was a motivating factor in the decision to terminate her. 


So, how do you avoid this?  Just to be sure, make everyone who conducts interviews in your organization review the Michigan Pre-Employment Inquiry Guide.  You can find it at,1607,7-138-4954_4997—,00.html  With things as tight as they are it’s a safe bet you have someone doing interviews that does not have a bunch of experience doing interviews.  Having an understanding of what you can ask and not ask can go a long way to making sure that some stray remark does not end up as the cornerstone of a discrimination suit.  Now I’m not suggesting that what happened to Ms. Johnson was a stray remark.  I don’t know, I wasn’t in the interview.  But, reviewing the Guide might also help get some dialogue going at work and help you educate the people who just might need to be educated. That way you can avoid intentional remarks too. Better safe than sorry.


I just got back from a nice 5 day vacation with my family in Boston.  My kids are growing up and the days of family vacations are rapidly coming to an end.  Then it is just the wife and me (assuming she doesn’t wise up and kick me to the curb).  But I digress.  Boston is one of my favorite cities.  Probably because it is so very different from Grand Rapids.  We stayed at a really nice hotel in Cambridge with a view of the Charles River and downtown Boston.

I’m always struck when I stay at a really fine hotel with the incredible level of guest service you get at these places.  Always a smile from the staff.  Always a warm greeting.  Always a willingness to help.  And yet usually they manage to do all this stuff without being overpowering. 

I don’t know why this surprises me.   I happen to have the privilege of representing three of the finest hotel properties in the state of Michigan.  Hotels that frankly I think are some of the finest in the world.  And even though I feel like I am part of the family at these fine hotels, I still get that same first class guest treatment.  I think we can all learn a thing or two from this guest service mentality.  So, how do they do it?  Well, they start by taking guest service really seriously.  The hotels I work with have pages and pages of guest service guidelines in their employee handbooks.  Guest service is practiced from the top of the organization on down.  And each manager that I have worked with has that same guest service attitude when it comes to their employees.   I’ve also been told that you have to understand that the guest is the reason you are employed not a distraction in your day.

So, if you are an HR pro or a member of management, who are your “guests?”  It has to be your employees right?  Not the boss, not the stockholders and not the customers.  These are people that you may rarely or even never see.  It has to bee the good old rank and file employee that is your “guest.”  Do you greet these people with a smile every time you see them?  Do you ask them how things are?   Do you offer to help?  And when they have a concern, do you listen?  I mean really listen?

Ask yourself this:  Are your employees what makes your job a pain, or are they what makes your job great?  Remember, without them, the company doesn’t really need you, now does it.


A couple of days ago we were talking about no fault or zero tolerance workplace polices and then I ran across this article on,2933,536361,00.html.  Seems a bank teller decided he did not want to be robbed.  When a guy came into the bank and demanded money, the teller, a 30 year old man, instead tossed the bag of money on the floor, grabbed at the guy and when the attempted robber ran chased him down, tackled him and waited for the police to arrive.


Two days later he was fired.


Why?  Because he violated company policy.  Everyone knows that banks have policies that when you get robbed just give the guy what he wants and don’t resist.  The police will tell you the same thing.  Life, after all, is not a weekly crime drama and no amount of money is worth getting yourself or a coworker killed over.  According to the article that is exactly what the bank said.  You read about it all the time, people resist and get killed.


But that is not what happened here. No one got hurt and the robber got caught.  Do we really need to fire this guy? 


Ok, ok, ok!  I don’t know if this is the first time he has done this and been told not to or if he had done it before.  And yes, that makes a difference.  And yes, I under stand that someone might have been hurt or killed.  But they weren’t.  And yes, this guy seems a little off center, he says in the article he almost looks forward to situations like this.  But the bank could not have known that when they fired him.  And I don’t know a 100 other facts I’d like to know.  What I do know is that this guy foiled a robber, caught the villain and was fired for it.


Was it right to fire the guy?  I don’t know.  It was legal.  But it just doesn’t seem . . . well, right.  So the next time someone violates one of your policies and you want to fire them, ask yourself this.  Is it right?  If it seems off to you maybe we should take a hard look at that policy.  Right?


Or “How To Lose An ADA Case Even When The Plaintiff Is Not Disabled.”


It has been my experience over the years that managers and HR people tend to love “no fault” policies.  In my experience, the concept of no fault policies really started many years ago with attendance policies.  You know what I mean.  Miss work and get a point or whatever it is that your company calls the black mark in the book.  Get so many points and you are out the door.  Does not matter why, only that you got the point.  Of course, this sort of policy created a bunch of really hard to believe results.  For example, when I was a shop floor supervisor many years ago, the company I worked for actually fired a guy who missed work because his wife was having a baby.  No kidding, that was his last point and out the door he went!  Now all of this was before the ADA and FMLA and all of the other nice new federal and state laws we have limiting our right to do this kind of thing.  With these statutes in place you would think that the concept of no fault policies would have gone the way of the DoDo, but not so.  No fault has simply moved to other policies and changed its name.  Now we call it “zero tolerance.”  For example, we have zero tolerance workplace violence policies.  Bring a weapon to work (or school) and out the door you go.  Seems like a good idea doesn’t it?  What could go wrong?  How about suspending a 17 year old A student for bringing an African tribal knife to school for a project?  Violation of the policy, out you go.  But that is school you are all saying, and school is different, that stuff does not happen at work.  Really?  Let’s ask XYZ Corp (I changed the name, but it is a real case).  You see XYZ was faced with a problem, too many on the job accidents costing lots of money.  XYZ management was convinced that drugs were the problem.  So, XYZ put a policy in place that allowed them to drug test everyone in the plant.  So far so good.  But XYZ determined that it was not just illegal drugs that were causing the problem.  Some legal drugs can cause trouble too, so XYZ added a list of specified drugs to the testing protocol.  If a prescription drug contained a warning label against operating heavy machinery, on the list it went.  Fail a screen and you are suspended, fail again and out you go.  Zero tolerance.  Simple solution for the employees on prescription drugs right, bring in a doctor’s note saying that you are OK to work.  Nope, XYZ didn’t care.  Test positive and out you go.  We don’t care why.


Well, a bunch of employees on prescription drugs that were let go under the policy did care, and they sued.  They sued for a bunch of stuff, but what is really important to us is they sued under the Americans with Disabilities Act (the old one before the amendments made this kind of case even easier).  XYZ defended by saying none of these people are disabled, have a record of a disability or are regarded as disabled; no ADA case.  The court said you are right, they are not disabled, we don’t care.  Certain portions of the ADA, including the sections at issue here protect everyone, not just the disabled.  XYZ said but the policy is justified by business necessity, we should not have to wait for someone to get hurt to drug test.   The court said you are right, maintaining safety is a business necessity, we don’t care.  So how come XYZ didn’t get summary judgment?  Because the court said you can’t have a zero tolerance policy like this that does not take into account individualized circumstances.  The court held: “While XYZ’s medical screening program is based on the sound goal of “workplace safety,” a reasonable juror could very well find that the screening is “broader [and] more intrusive than necessary” because XYZ automatically excludes all employees who take certain medications from working in any capacity at XYZ, without any regard for individualized circumstances.”


Looks like the court had zero tolerance for XYZ’s zero tolerance policy.


So what the heck is the moral of this story?  You have an HR department for a reason and it is almost always a bad idea to try to craft a policy that takes into account every situation and provides a pat answer for that problem.  That is what tends to create these ridiculous results and leads to laws we don’t want and regulations we can’t live with.  Let your managers manage and teach them how to do it right.  It is almost always a bad idea to take the “human” out of “human resources.”

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