Archive for August, 2009


Or does your leave policy violate the ADA?

Most employers that even have leave policies have some limit to those policies.  Sometimes its 6 months and often it is 12 months.  But generally, once an employee has exceed whatever your maximum is, they’re fired.  Well, the EEOC, it seems, does not like this one little bit.  In fact, they have filed suit against UPS in Federal Court in Illinois for this very thing.  (See EEOC v. United Parcel Serv. Inc., N.D. Ill., No. 09 C 5291).  Seems an employee with MS took a 12 month leave of absence.  She returned to work, according to UPS, without restrictions for 18 days and then, went out on leave again.  Not surprisingly, UPS terminated her employment for exceeding its 12 month leave policy.

Well, the EEOC thinks that violates the ADA.  According to the EEOC a flat 12 month leave program like this one “negates” the interactive process contemplated under the ADA. 

UPS says it is going to fight this one out.  We’ll keep an eye on this case, it should be interesting.


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  Some of the data is a bit out of date, but I think the point remains valid.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.


Over the last month or so I have done several interviews on the advisability of “furloughs” in the private sector, which inevitably leads to a discussion of the Fair Labor Standards Act.  As a general rule it is easy to deal with time off when we are talking about hourly employees.  If they don’t work, they don’t get paid.  Of course we have developed a bunch of programs over time to help hourly employees who have to miss time for good reasons like sickness, or funeral leave or jury duty.  But the general rule still applies, if you are an hourly employee you don’t get paid unless you are working. 

Now, some employers have taken this “you don’t get paid unless you are working” thing to another level and suggested that hourly employees don’t get paid unless the employer makes them or asks them to work.  You know what I’m talking about right?  Some manager saying “I’m not paying him for that overtime, I didn’t authorize that!”  Or “Sure, you can come in early and get that done, but you are not getting paid for it.”  Wait, wait, wait.  Is that right?  We all know it isn’t. (We all know you can’t do that don’t we?)  Under the FLSA an employee has to be paid for any time that the employer “suffers or permits” him to work.  The Department of Labor says: 

The FLSA defines the term “employ” to include the words “suffer or permit to work”. Suffer or permit to work means that if an employer requires or allows employees to work, the time spent is generally hours worked. Thus, time spent doing work not requested by the employer, but still allowed, is generally hours worked, since the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done. (The underlining is mine).


In the old days, this was not really that hard to police.  “Mary is at her desk after hours, Mary must be working extra, did I authorize that overtime?” 


Not so much anymore.  “Mary is at home, Mary’s laptop is not on her desk, I wonder if Mary is working?”  Or how about getting a response at midnight to an email you sent about the “SMITH FILE” (I put that all in caps so it would sound IMPORTANT when you read it) from Bill’s iPhone.  Well, if you “know or have reason to know” that Mary, or Bill or any other hourly person is say, oh, I don’t know?  Answering work emails at home “off the clock” you have to pay them for that time spent working. 


But wait, you say, the budget is tight and I can’t afford that.  Sorry, too bad.  So what do you do?  Well, if you want Mary to stop working when she is not supposed to, you pay Mary and discipline her.  That’s right, you get to discipline an employee who is so conscientious that she is working at night to keep up in these hard economic times.  Does that make any sense?  Of course not, but don’t forget we are working with a law that was written in the 30s.  Until it is changed, sorry, that is your only recourse. 

Of course you could take away Mary’s Blackberry and iPhone and laptop?  Oh my!


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?


Shell, Intuit, Ormet, Harley Davidson, even the city of Akron Ohio.  These are just the names that came up on page 1 when I did a simple Google news search of the term layoff.  A recent front page article in USA Today explained how this recession is hitting older white males harder than the last recession.  All the news is about the economy, and that should not surprise us.  As was famously said in a recent political race, “It’s the economy stupid?” And on and on it seems to go.  So, where are all the WARN notices?  You guys all know what WARN is:  It’s the Workers Adjustment and Retaining Notification Act, a federal statute and it requires that notice be given to employees and certain government agencies when certain job actions are about to occur.  Under WARN an employer must give 60 calendar days notice of an employment loss to covered employees at a single site of employment in connection with a plant closing or mass layoff. Seems simple right?  Well, for those of you who have ever had to deal with WARN, you know that it is not at all simple.  For example, you have to know what an “employment loss” is and what a “mass layoff” is and what a “plant closing” is.  Now before you say it, it is not as simple as it seems.  Each of those terms is defined in the statute and they don’t have the meanings that simple English gives them.  On top of all this complicated stuff, you also know that some employers will do anything they can to find ways around the reporting requirements.  Well Congress knows that too, and some members of Congress seem to be asking the same question I asked myself recently:  With all the layoffs and plant closings we are hearing about, where are all the WARN notices?


Congress must have been asking this question a little more seriously than I have (well that and they have a lot more power than I do), because in both the House of Representatives and in the Senate bills have been introduced to amend WARN.  H.R. 3042 and S. 1374.  The bills do a couple of important things to WARN.  First, they change the definition of employer from someone who employs 100 employees to someone who employs “75 employees.”  Second, they change the definition of plant closing and mass layoff to mean employment loss for 25 employees.  In addition the 60 day notice requirement is extended to 90 days.


There is a bunch of other stuff the amendments do, but in short, the so called “Forewarn Act” amends the WARN Act to make it simpler, apply to a lot more situations and close some of the more common loopholes.  We will keep an eye on the Act and see what happens.


Or don’t judge a book by its cover.


By now we have all heard about the case of Harvard Professor Henry Gates and Sgt. James Crowley.  You haven’t?  Where the heck have you been?  Well let me give you a summary.  Seems Sgt. Crowley was called to investigate a 911 call on Mr. Gates’ block.  A woman had called the police to report that she thought she had seen two men breaking into a house.  What had really happened is that Mr. Gates had just come home from a trip to China and found his door jammed.  His driver tried to help him un-jam the door.  That’s when the passer by saw them “trying to break into the house.”  Police were called. Mr. Gates was cranky (he just got off a plane from China for goodness sake, you’d be cranky too).  Words were exchanged between Mr. Gates and Sgt. Crowley.  Mr. Gates went to jail.  The President said something he shouldn’t have said and then everyone had a beer at the White House.  Even then they could not all agree on one beer, they each had something different. 


I don’t know what happened at the scene and neither does anyone else.  Except of course Sgt. Crowley and Mr. Gates and they seem to have widely divergent views of the events.  But here is what we do know.  The 911 caller made some assumptions that turned out to be wrong; no one was breaking into any house.  Sgt. Crowley made some assumptions that turned out to be wrong; Mr. Gates was not a robber, it was his own house.  Mr. Gates made some assumptions that turned out to be wrong; yelling at a police officer who thinks you are a crook is probably not that good an idea whether you are in the right or not.  So what should we learn from this?  We all make assumptions based on a bunch of stuff including our background and our job experience.  And often those assumptions can get us into trouble.


Happens at work too. In Sassaman v. Gamache, No. 07-2721-cv, slip. op. at 5 (2d Cir. 2009) the Second Circuit Court of Appeals held that relying on gender based stereotypes to resolve a sexual harassment matter amounted to discrimination under Title VII.  The defendants came up with a bunch of clever arguments for why what they said (basically “you’re a man and you probably did what she said you did”) was proper.  The court shot them all down and held “From this evidence, a jury could reasonably construe [the boss’s] statement as persuasive evidence that he pressured Sassaman to resign because of his discriminatory assumptions about the propensity of men to sexually harass their female co-workers.”   The Court also was not amused by the lack of an investigation into the allegations.  “The allegation that defendants made minimal—if any—efforts to verify [the accuser’s] accusations could be construed by a reasonable jury as further evidence that Sassaman’s forced resignation occurred under circumstances giving rise to an inference of discriminatory intent.”


We’ve talked about this sort of thing before in other contexts like, oh maybe yesterday and the ADA.  The lesson is each circumstance is different, and one size fits all does not fit anyone very well.  You can see Liz Von Eitzen’s excellent article on this case on our website at


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.”


Just when you thought all the really bad ideas were coming out of Washington D.C. these days, our friends in the State House have gone and passed the House Bill No. 4467 entitled the “Worker Freedom Act.”   The summary of the bill says it is a bill to establish the right of employees to pursue “employment free from religious and political indoctrination; . . .” Ok, that sounds all right.  Certainly one of the bedrock principles of this country is the right of every individual to believe and practice what ever religion that individual thinks is best and right for them.  So, a bill to ensure religious freedom should be OK.  Wait a second.  Don’t we already have at least 2 of those?  It seems to me that Title VII of the Civil Rights Act of 1964, a federal statute that applies to employers with 15 or more employees already prohibits discrimination based on religion.  And for those of you in Michigan who don’t have 15 employees, don’t we have the Elliott-Larsen Civil Rights Act, also a law that prohibits discrimination based on religion?  Why yes we do.  So what’s up?  Well let’s just take a nice close look at this Bill.  The bill says: “Except as necessary to comply with another law . . .  an employer or an employer’s agent, representative, or designee shall not require its employee to attend an employer-sponsored meeting or participate in any communication with the employer or its agent or representative if the primary purpose is to communicate the employer’s opinion about religious or political matters.”  Still, what is the problem?  This just means I can’t force employees to listen to me speak on religious or political matters, right?  Well, not so fast my friend.  Let’s look at the definition of “political matter.”  (d) “Political matters” includes political party affiliation or the decision to join or not join any lawful political, social or community group or activity or ANY LABOR ORGINIZATION.”   Wow, joining a labor organization is a political matter and I can’t give my opinion on that?   So, anybody still think this is not such a bad thing?  I’ll bet these are the same people who think the Employee Free Choice Act really gives employees a free choice?  Speaking of the EFCA, wonder how these two bills are going to work together?   Not only will you not get the benefit of a secret ballot election, but you won’t be able to tell your employees how you feel about them joining a union or what the union will do to them.  Nice.


This Bill passed the House on a pretty much straight party line vote with only 1 Republican voting for it.  We will keep an eye on it.

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