Why? Military Family Leave . . . . Part 1.

More why employees can take a leave.  Let’s go back to the why just to refresh our recollection.  If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

So we have covered 1, 2, 3, and 4.  Now let’s talk about the so called Military Family Leave.  As you can see, an employee can also take leave for certain military issues for their family. An employee under these sections can take FMLA leave for 2 main reasons:  A qualifying exigency; and to care for a “covered servicemember”.  OK what does that all mean?  Let’s start with some definitions.

(a) Covered servicemember means: (1) A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or

(2)  A covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. Covered veteran means an individual who was a member of the Armed Forces (including a member of the National Guard or Reserves), and was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. See §825.127(b)(2).

29 CFR §825.122(a)(1 & 2).

Simple enough, a covered service member is a person who is in the Armed Forces (including the National Guard or Reserves) who is undergoing treatment for a serious injury or illness or if you are a veteran who was discharged 5 years ago or less and is undergoing treatment for a serious health condition.

That’s one down, now about a spouse.  This was way more complicated before the Supreme Court recognized same sex marriage as a right.  Now, it is just somebody you are legally married to.  29 CFR §825.122(b).  Parent is equally simple it is a parent, step-parent, adoptive parent, foster patent or any individual who stood in loco parentis to the employee.  Loco parentis for those of you that don’t know means somebody who stood in the place of your parent, like grandma, if grandma raised you.  29 CFR §825.122(c).  Son or Daughter is the same, son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.  29 CFR §825.122(d).  Incapable of self-care and physical or mental disability mean that the individual requires active assistance to provide daily self-care and that the individual has a physical or mental impairment that substantially limits on or more major life activities as defined in the ADA.  29 CFR §825.122(d)(1-3).

Why? Leave for Adoption or Foster Care.

More why employees can take a leave.  Let’s go back to the why just to refresh our recollection.  If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

We have covered the serious health condition leave, we have covered the birth of a child.  Now let’s talk about placement for adoption or foster care.  You are not going to be surprised to learn that leave for adoption and foster care is very similar to leave for birth of a child.  For example:

(a) General rules. Eligible employees are entitled to FMLA leave for placement with the employee of a son or daughter for adoption or foster care as follows:

(1) Employees may take FMLA leave before the actual placement or adoption of a child if an absence from work is required for the placement for adoption or foster care to proceed. For example, the employee may be required to attend counseling sessions, appear in court, consult with his or her attorney or the doctor(s) representing the birth parent, submit to a physical examination, or travel to another country to complete an adoption. The source of an adopted child (e.g., whether from a licensed placement agency or otherwise) is not a factor in determining eligibility for leave for this purpose.

 29 CFR §825.121(a)(1).

See, like for a birth, you can take leave for the placement of the child.  You can also take leave before the placement for court dates or counseling sessions or doctors’ appointments or appointments with a lawyer.  And you can also take time off to travel to pick up your new child.

The leave for birth or adoption has to be taken within 12 months of the date of the placement. And as is the case with the birth of a child, parents who work for the same employer get a combined total of 12 weeks to be with a healthy placed child.  But the parents still get up to 12 weeks each for a child with a serious health condition.  Finally, leave for a healthy placed child can only be taken intermittently or on a reduced schedule if the employer agrees to let the employee it take it that way.  If the leave is for a serious health condition for the placed child, on the other hand, the employee gets to take the leave intermittently or on a reduced schedule if it is medically necessary, even if the employer objects.

29 CFR §825.121(a)(2-4) and (b

Why? Leave for Pregnancy or Birth . . . . Part 2.

OK, so last time we talked about leave for birth and care of a healthy baby with a healthy mother.  Now let’s talk about some of those other circumstances.  What if mom is incapacitated either before or after the birth?  Of course she gets leave for that:

(4) The expectant mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. An expectant mother may take FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work. The mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days. The expectant mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days.

29 CFR §825.120(a)(4).

That makes sense, but why do we need this additional regulations, why isn’t that just covered by the definition of a serious health condition?  Because some of the requirements for a serious health condition don’t apply when the mother is incapacitated due to pregnancy.  For example. The mother does not necessarily need to see a doctor for every incident of incapacity nor does she need to be out for 3 consecutive days.  So when a women is pregnant, she gets a bit more slack cut for FMLA leave and a bit more freedom to take that leave without jumping through hoops go get it approved.

Now a spouse gets time off to take care of a pregnant spouse too:

(5) A spouse is entitled to FMLA leave if needed to care for a pregnant spouse who is incapacitated or if needed to care for her during her prenatal care, or if needed to care for her following the birth of a child if she has a serious health condition. See §825.124.

29 CFR §825.120(a)(5).

And both parents get time off to take care of a newborn that has a serious health condition:

(6) Both parents are entitled to FMLA leave if needed to care for a child with a serious health condition if the requirements of §§825.113 through 825.115 and 825.122(d) are met. Thus, spouses may each take 12 weeks of FMLA leave if needed to care for their newborn child with a serious health condition, even if both are employed by the same employer, provided they have not exhausted their entitlements during the applicable 12-month FMLA leave period.

29 CFR §825.120(a)(6).

So what kind of leave we have when a child is born is important because it determines not only the amount of leave that can be taken by parents who work for the same employer like we discussed last time, but it also determines if the leave can be taken intermittently or on a reduced schedule.

(b) Intermittent and reduced schedule leave. An eligible employee may use intermittent or reduced schedule leave after the birth to be with a healthy newborn child only if the employer agrees. For example, an employer and employee may agree to a part-time work schedule after the birth. If the employer agrees to permit intermittent or reduced schedule leave for the birth of a child, the employer may require the employee to transfer temporarily, during the period the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position. Transfer to an alternative position may require compliance with any applicable collective bargaining agreement, Federal law (such as the Americans with Disabilities Act), and State law. Transfer to an alternative position may include altering an existing job to better accommodate the employee’s need for intermittent or reduced leave. The employer’s agreement is not required for intermittent leave required by the serious health condition of the expectant mother or newborn child. See §§825.202—825.205 for general rules governing the use of intermittent and reduced schedule leave. . . .

29 CFR §825.120(b).

What all that says is leave for a healthy newborn can only be taken intermittently or on a reduced schedule if the employer agrees to let the employee it take it that way.  If the leave is for a serious health condition for the mother, taken either by the mother or by a spouse to care for the mother, or for a serious health condition for the newborn, on the other hand, the employee gets to take the leave intermittently or on a reduced schedule if it is medically necessary even if the employer objects.

Why? Leave for Pregnancy or Birth . . . . Part 1.

OK we are all done with serious health conditions . . . yea . . . for now.  So why else can you take an FMLA leave?   Let’s look.  If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

We talked extensively about what a serious health condition is, so let’s look at a couple of other reasons why an eligible employer can take a leave.  And today, we will start with “(1) For birth of a son or daughter, and to care for the newborn child.”  We don’t really have to define “birth of a son or daughter” do we?  So let’s just get into the specifics of when we have to give that leave.   First, you have to give an employee time off to actually have the baby, Duh!

(a) General rules. Eligible employees are entitled to FMLA leave for pregnancy or birth of a child as follows:

(1) Both parents are entitled to FMLA leave for the birth of their child.

29 CFR §825.120(a).  That makes sense right?  But remember it is not just mom who gets the time off when the baby is born, it is dad too.  And also remember that provision of the regulations says both “parents” get time off for the birth, not “spouses.”

Both parents are also entitled to time off after the birth to bond with an otherwise healthy baby. That time has to be taken within 12 months of the birthday of the newborn and it can be taken even if the baby does not have a serious health condition.  One of the things you need to remember is that some states (most notably California) allow for additional bonding time with occasionally different eligibility rules.  If that is true, any leave that is taken under these state laws that does not qualify for FMLA leave can’t be counted as FMLA leave.  Specifically, the regulation states:

(2) Both parents are entitled to FMLA leave to be with the healthy newborn child (i.e., bonding time) during the 12-month period beginning on the date of birth. An employee’s entitlement to FMLA leave for a birth expires at the end of the 12-month period beginning on the date of the birth. If state law allows, or the employer permits, bonding leave to be taken beyond this period, such leave will not qualify as FMLA leave. See §825.701 regarding non-FMLA leave which may be available under applicable State laws. Under this section, both parents are entitled to FMLA leave even if the newborn does not have a serious health condition.

29 CFR §825.120(a)(2).

OK, that all makes sense.  Parents get time off for the actual birth of the child and then they get additional time off for bonding with the child after the child is born and even if the child is not suffering from a serious health condition.  How much time?  A total of 12 weeks right?  Right, but what if both spouses work for the same employer.  Not all that rare is it?  Well, there is a regulation for that too.

(3) Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken for birth of the employee’s son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement, or to care for the employee’s parent with a serious health condition. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as the spouses are employed by the same employer. It would apply, for example, even though the spouses are employed at two different worksites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 12 weeks of FMLA leave. Where spouses both use a portion of the total 12-week FMLA leave entitlement for either the birth of a child, for placement for adoption or foster care, or to care for a parent, the spouses would each be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes. For example, if each spouse took six weeks of leave to care for a healthy, newborn child, each could use an additional six weeks due to his or her own serious health condition or to care for a child with a serious health condition. Note, too, that many state pregnancy disability laws specify a period of disability either before or after the birth of a child; such periods would also be considered FMLA leave for a serious health condition of the birth mother, and would not be subject to the combined limit.

29 CFR §825.120(a)(3).

That’s right, when we are talking about the birth of a child and bonding time with a healthy baby, if both spouses work for the same employer you can limit them to a total of 12 weeks of leave.  Now remember this limit only applies to time off for birth and care of a heath baby.  If the baby has a serious health condition both spouses can take a full 12 weeks to care for the baby and the other combinations are way too complicated to get into here.  The thing to remember is the 12 week limit can be different for each different set of circumstances.  Next time we will talk about some of those situations.

Why? A Serious Health Condition under the FMLA – Part 9.

OK honestly, really, this is the last post on a serious Health Condition and what it means.  No kidding, I’m serious.  So let’s go back to the definition:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

But this time, we are talking about a very specific need for leave.  That is for treatment of substance abuse.  Yes, there is a regulation just for that issue.  And I am sure that is because it comes up . . . a lot.    So, is time off for treatment for substance abuse considered time off for a serious health condition under the FMLA?  It can be.

(a) Substance abuse may be a serious health condition if the conditions of §§825.113 through 825.115 are met. However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.

29 CFR §825.119(a).

The answer you can see is yes, it can be if it meets the definition of serious health condition that we have been talking about over the last 8 posts.  But there are some caveats here.  First, you have to actually be in treatment.  You can’t just take a leave to recover from the effects of the substance abuse, and that treatment has to be by or under the direction of a health care provider as that term is defined in the FMLA. Second, and again, an absence because of use is not covered by the FMLA.  “I can’t come to work because I’m high” is not an FMLA covered reason for taking time off.  “I need to be out for 3 weeks to be in inpatient treatment for my opioid addiction” is.

OK, so I am in treatment for my opioid addition, can I be disciplined or because I am now covered by the FMLA, does that mean my employer can’t discipline me?  In this case, an employee being on an FMLA leave does not get them off the hook.

(b) Treatment for substance abuse does not prevent an employer from taking employment action against an employee. The employer may not take action against the employee because the employee has exercised his or her right to take FMLA leave for treatment. However, if the employer has an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, pursuant to that policy the employee may be terminated whether or not the employee is presently taking FMLA leave. An employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse. The employer may not take action against an employee who is providing care for a covered family member receiving treatment for substance abuse.

29 CFR §825.119(b).

Here is what you can’t do: you can’t discipline an employee for taking a legitimate FMLA covered leave, no matter why they take the leave.  If it is FMLA covered they are off the hook.  But you CAN discipline an employee that otherwise violates your substance abuse policy, and being on an FMLA leave does not get them off the hook for that policy violation.  Now, you have to be a bit careful here.  You have to have an “established policy;” you have to apply it in a “non-discriminatory manner;” and you have to “communicate it to all employees.”

Oh, and one more thing, don’t forget that an employee can take time off to care for a family member with a serious health condition, and that includes a family member that has is in substance abuse treatment where necessary.  That employee you cannot discipline.

Angelo Palazzolo was a supervisor, here is what he did for a living

My Uncle Angelo Palazzolo passed away yesterday.  My Uncle Angelo was my first real supervisor when I went to work at Butternut Bakery.  I did this post years ago and I mention my Uncle Angelo in it.  He told me something then that I have not forgotten to this day.  So I thought I would reprint this in his honor.  Rest in Peace Uncle Angleo:

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 http://time-blog.com/work_in_progress/2007/08/three_signs_of_a_miserable_job.html?xid=rss-wip.)

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 http://time-blog.com/work_in_progress/2007/08/three_signs_of_a_miserable_job.html?xid=rss-wip.)

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.

This is serious . . . do you want an armed workforce?

Those of you that read this thing on a regular basis know that I tend to be a little flippant in how I look at the issues of the day for employers.  I try to have a little fun with what I write.  Not this time and not with this topic.  This one is way too serious.  So I might sound way more like a lawyer than I normally do.  That is on purpose, because I want you to know the score before you change your policy.  As we usually do, we are going to focus on the law in Michigan.

So let’s start with the assumption that your organization has a written employment policy that prohibits any employee from carrying any type of weapon in the workplace, which necessarily includes any firearm that is owned and carried based on a valid Michigan-issued concealed carry license (“CCL”).  That would not be unusual.  In fact, I would say it would be unusual if your organization does not have such a policy.  And let’s say you are considering changing your policy to permit certain employees, say managers, to carry firearms on company property if they hold a valid CCL and comply with provisions that would be set forth in a new yet-to-be-drafted employment policy on this issue.  So far so good, right?

Before you do that, you might want to consider the implications.  Under Michigan law, any individual that holds a valid Michigan CCL may carry a concealed weapon on private property.  However, the law expressly permits an employer to prohibit an employee from carrying a concealed weapon in the course of his or her employment with that employer.  MCL 28.425n(2)(b).

Now the worst happens and an employee that you permitted to carry a firearm to work shoots somebody.  There is no Michigan state or federal case law that addresses the situation of an employer expressly permitting an employee to carry a firearm with a valid CCL, who subsequently shoots another individual in the scope of the employee’s employment with justification for doing so, e.g., in self-defense or in defense of others.  Under Michigan law, however, both of these defenses would be available in the civil context for the employee to rely on in defense of any tort claim against them.  To prevail based on self-defense, the employee responsible for shooting the decedent/injured individual would need to prove by a preponderance of the evidence that he or she reasonably believed his or her life was in imminent danger or that there was a threat of serious bodily harm.  See, e.g., Wright v. Shore Crest Lanes & Lounge, Inc., 2000 WL 3353866, at *1 (Mich. App. Ct. Jan. 11, 2000).  Similarly, to prevail based on defense of others, an employee would need to prove that he or she reasonably believed another person was in imminent danger of death or serious bodily harm.  Both defenses present inherently fact intensive inquiries, with the amount of force, what a reasonable person would believe, and other facts informing the inquiry.  If the employee prevailed on such a defense, the company would not be liable, given that the employee was justified under general tort principles (simply stated, acted reasonably).  However, given the factual nature of this inquiry, it is likely that a plaintiff that was injured (or his or her estate if killed) would file suit and litigate the issue, with summary disposition potentially difficult to achieve in the employee’s and the company’s favor without a trial on the facts.

If the employee was unsuccessful in prevailing on any such defense, or if the employee was justified in his actions but inadvertently hit another employee or non-employee bystander, the company could be held liable.  In the event an employee permitted to carry a gun at work shot another person without justification, or shot at a person with justification but hit another person that was a bystander, the injured individual would likely sue the company under a theory of respondeat superior, negligent hiring, negligent supervision, or combination thereof, with the respondeat superior theory the most likely legal theory.  Under respondeat superior, an employer is generally liable for the torts of its employees committed within the scope of their employment.  If the company adopts a policy allowing certain employees to carry concealed weapons during their employment, the company could be liable for its employee’s conduct because its policy permitted the employee to carry the firearm, and any shooting would likely be construed as intended to advance or at least protect the company’s business interests, e.g., protecting its employees and providing a safe work environment.  Of course, this inquiry would be fact-dependent as in any other tort case, but the company would have potential exposure.  Compare Martin v. Jones, 302 Mich. 355, 357 (1942) (concluding defendant-employer was not liable to plaintiff for injuries he sustained when shot by the defendant-employee while the defendant-employee was working as a service station manager because defendant-employee did not shoot plaintiff in furtherance of the defendant-employer’s business) with Cook v. Michigan Central Railroad Co., 189 Mich. 456 (1915) (holding a question of fact of whether night watchman employed to guard his master’s property who shot plaintiff was acting within scope of employment).

What if the person shot is another employee?  If that is the case, then under the Michigan worker’s compensation law, the company may be able to successfully argue that the Worker’s Disability Compensation Act (“WDCA”) is its employees’ exclusive remedy for any injury sustained as a result of an employee shooting, although again, there is no Michigan case directly on point.  The WDCA “is an employee’s exclusive remedy against an employer, unless the employee suffers an injury as a result of an intentional tort.”  LaDuke v. Ziebart Corp., 211 Mich. App. 169, 170 (1995).  Accordingly, for the WDCA not to apply, an injured employee (or their estate) would need to prove that the intentional tort exception applies to recover under general tort principles rather than the WDCA.  But the intentional tort exception is exceedingly narrow, requiring “a plaintiff to show that the defendant had actual knowledge that the plaintiff would suffer a specific injury and that the defendant disregarded that knowledge.”  Id. at 172 (citations omitted).  “It is not enough to show that a risk of injury existed or that someone, but not necessarily the plaintiff, was certain to suffer an injury.”  Id.  In LaDuke, the Michigan Court of Appeals applied these principles to a workplace shooting, where the decedent-plaintiff was a branch operations manager for the defendant-employer and was killed when he was shot by an employee he was in the process of terminating (who was subsequently convicted of murder).  Id.  The decedent argued the intentional tort exception applied to exempt his claims from the WDCA, but the Court of Appeals disagreed.  In reaching this conclusion, the Court held that decedent was unable to carry his burden “of showing that [his employer] intentionally instructed plaintiff to fire [the employee] with the actual knowledge that [the employee] would injure [plaintiff].”  Id.  The Court concluded there was no evidence that the defendant-employer had the requisite knowledge for the intentional tort exception to apply, because it had no knowledge that the employee posed a physical threat or had a criminal record when it asked plaintiff to terminate him.  To the contrary, the record evidence showed that the employee was quiet, not aggressive, and hard working.  Id.; see also Devlin v. Kaplanis, 43 Mich. App. 519, 521 (1972).

Under LaDuke, the company may be able to persuasively argue the WDCA should similarly apply to any claim against it, as the company would likely be able to show it did not have the requisite knowledge that its armed employee would harm a particular employee.  However, it is unclear how an employment policy that permits company employees to carry firearms, and contemplates that the employee may have to discharge the weapon even in certain limited circumstances while on duty, may impact this analysis.  For example, it could be argued that knowingly permitting guns in the workplace, particularly in what may be known to be hostile or potentially hostile terminations, rises to the level of knowledge to trigger the intentional tort exception of the WDCA, thereby subjecting the company to general tort liability, and the accompanying greater damages available under these tort principles.  In addition, having such a policy will place an affirmative duty on the company to ensure that its armed employees do not present a known threat.  As noted above, in LaDuke, the Court emphasized that the intentional tort exception did not apply at least partially because the employer had no knowledge that the terminated employee was a threat or had a criminal record.  This, of course, means that the company must continually do background and criminal records checks on employees who will be allowed to carry guns.  The company will also have an affirmative duty to make sure that the armed employees are up to date on any required training and that the armed employees always have a current CCL.    In short, the company would have an affirmative duty, that it does not currently have, to make sure the armed employee did not pose a threat to other employees.

I, know, I know, that is a lot to digest.  But that was the point.  You see the answer is never as simple as “Let’s let our employees carry guns to work.”  That may be the answer for your workplace and it may not be, but if you are considering it, we need to talk first.

Help! I’m losing my best people and I can’t replace them! – Part 2.

Last time we talked about why people leave their jobs.

So where does this all get us?  If we know that it is the soft skills that matter and if we know that managers frequently do things that cause good people to quit, how do we fix that?  What do we do?  There are tons of articles out there on what to do to engage employees and they all have some variation of providing a good onboarding system, and a mentorship program, and fostering teamwork, and having a training program for employees.  That is always the solution, right?  It has been a long time since I got my business degree and, granted, it is a BA and not an MBA, but it seems to me business schools shovel this stuff out like . . . well, you know what they shovel it out like.  You have all heard it before and some of you, myself included when I was still managing people, have said it.  “Our performance management system isn’t working?  Let’s buy a fancy new and really expensive ‘tool’ to track performance, that will fix the problem.”  And five years later we still have the same problem with a fancy tool.  I want to go back to something Mr. Peters said was part of the problem:  “too much reliance on the apparently ‘hard’ procedures of, say, six-sigma programs and not enough attention to those underlying, apparently ‘soft’ attributes such as the respect for and engagement of the workforce.”

Now look, I am not saying that fancy new tools to track performance are not valuable – they are.  But there is an old saying, I think it started in the computer industry:  “Garbage in, garbage out.”  And in this context, what that really means is that we are putting our resources in the wrong place.  If we assume Dr. Bradberry and Ms. Branham are correct and a majority of people who leave their jobs are really leaving their managers, and if we believe that Dr. Bradberry’s and Ms. Branham’s lists are at least close to the mark, what that should tell us is we need to put our resources in our managers and supervisors.

“Now we are talking.  Finally we are into the meat of it.  1300 words for Palazzolo to finally tell us how to keep our people!”  Relax, don’t forget Mr. Peters said, “Soft is hard.”  But I’m going to try to simplify so we all have some things we can start on right away.  I’m going to focus on three main topics:  Selection, Training and Measurement.

Selection

Now it all starts with figuring out what management’s job really is.  Far too often, when we need somebody to supervise widget makers, we promote the best widget maker. That, my friends, is exactly the wrong thing to do.  Being a good widget maker does not mean that you are a good supervisor of widget makers.  I wrote about this a long time ago, too.  I want you all to stop and go read that article.  You can find it here.  I’ll wait. . .   Ok, I’m glad you’re back.  Pretty good article if I do say so myself, right?  Anyway, back to making widgets or at least supervising those who do.

So if being the best widget maker does not make you a good supervisor, what does?  Well, that may vary from organization to organization, and it may depend on who is being supervised, right?  I mean a good plant supervisor on the production floor is not necessarily going to have the same skills as a manager in the accounting department, right?  Not so fast, my friend.  There may be slight variations, but what I am saying is that being a good supervisor or manager does have a common set of skills or, as my HR friends like to say, competencies that are common to all good supervisors.    Let’s go back to Dr. Bradberry’s and Ms. Branham’s lists of why people leave their jobs.  Dr. Bradberry says one reason people leave their jobs is managers “Hire and promote the wrong people.”  Ms. Branham says, “There is a mismatch between the job and person.”  So given that, one competency we need in a good manager is the ability to assess and evaluate talent.  Then we have, “They fail to develop people skills,” or put another way, “There is too little coaching and feedback.”   Don’t we then want somebody who knows how to communicate and give constructive feedback?  Maybe somebody who can manage conflict?  And finally, bad managers do “Not recognize contributions and reward good work” or make their “Employees feel devalued and unrecognized.”  Now I could go through both lists, put them all down here and ask you the same question.  How many of you have a supervisor job description that has any of these things as a competency or job duty or even mentions these?  If you do, good for you, you are ahead of the game.  If you don’t, why not?  But that is not the end, now is it?  Remember, “Garbage in, garbage out.”  So you have a nice shiny new job description that requires your managers to be able to communicate, and assess talent and deal with conflict in a fast-paced manufacturing environment blah, blah, blah!  Are you actually hiring people that have these skills?  Not if you are just hiring the best widget makers.  And this is where our friends from HR come in – are you helping management to see and assess these competencies?  Are you getting good candidates?  And when you get good candidates, do recognize this and hire them?  Promoting from within is a great goal, one all companies should aspire to.  But you have to promote the right people, with the right skill set.

Training

OK, we have the right people in the door and they have all the skills we are looking for.  Now what do we do?  What we do is we make sure we have a culture that values and rewards enhancing and developing those skills.  And the only way to do that is train, train, train.  And here is where you know that I am serious.  I’m not talking about having us in to train about the law.  Yes, that is important and I want you to do that too, but that is not the most important thing.  We are talking about training supervisors and managers, and I mean all supervisors and managers, all the way up to the top.

And upper level management has to live that training too. You see, the only way to create a culture of excellence, one that values the skills we are looking for in our managers, is for upper management to support the training.  They have to show up.

The second thing we need to do is make this mandatory.  Knowing your job and developing the skills that you need to do it well should never be voluntary, it is part of your job.  So no “I’m too busy on the line” or “the month end report is due” excuses.  You show up and you participate or it will cost you.  Because we are evaluating you on this stuff.  And we will talk about that in a second.

And the final thing we need to do is make sure we are training on the right things.  Now as I said above, I am not talking about compliance training or harassment training here, although as we all know that is important too.  Especially in this climate.  What I am talking about here are the soft skills that Mr. Peters called so hard.  I’m talking about communication training, I’m talking about teaching managers to give constructive feedback.  I’m talking about teaching active listening skills.  And that is hard.  And the only way to make sure it sinks in is to practice it and make it an ongoing process.

Measurement

Now we have the right people in the door and we have them trained on the right things. What do we do to wrap this all up?  We measure our progress.  And here is what I am talking about here. We evaluate our managers and supervisors on these skills.  Over the years, this has been one of the things that has confounded me the most about communicating with employees.  We have these expensive evaluation processes that I talked about – you know, the shiny new tool.  And because it is so expensive and because it is so hard to actually evaluate employees, we try to make these tools one size fits all.  You know what I mean, often there is a set of goals that we sit down and talk to employees about at the beginning of the year.  And then we have some competencies that are supposed to relate to what the employee is doing.  And not once in this whole process do we take into account the employee’s job description or even what the employee is doing.  So we end up with a review that does not take into account what the employee is really doing, that measures a set of competencies that may or may not even be important to the employee doing his/her job and that in the end spits out a bunch of data that is of limited use at its best.  Employees don’t like this process, it is demoralizing.  Supervisors don’t like this process, it is a pain.  And worst of all, we tie compensation to this farce of a process.  So why do we do it?  Great question, and if you don’t have a good answer, then stop.  Doing a performance review once a year is a pain, but it is a pain only once a year.  It is also, for the most part, a complete waste of time.  Unless you are going to do it right.  Get rid of your fancy tools and use the job description as the basis for your reviews.  Yes, that will be hard.  Remember, “Soft is hard.”

Or scrap the whole process.  Want your employees to be engaged and stick around?  Give them constant feedback.  It’s important, especially to the younger generation.  When they do something good, tell them.  When they do something not so good, tell them.  Then tell them why it was either good or bad.  And then talk with them about what they can do better or what they should keep doing well.  That’s really hard.

And finally, make sure you are giving them feedback on what matters.  How is the turnover rate?  When you do a 360, how is the supervisor rated by the people he/she supervises?  I know, no one likes these, but that is because before we did not give our supervisors the skills they needed to be successful.  Now that we have done that, we should not be afraid of the dreaded 360 review.  Now I know what you are all saying, “That’s great, but what about production goals and deadlines and all that stuff?”  Yeah, I get it, that is important too.  But if your managers are being good managers, then those numbers will follow.

Let me just wrap this up with one final thought.  It is going to seem a bit cliché, but I think it is true.  We have to give our managers and supervisors the tools they need to be good managers and supervisors.  And for the most part, we have not done that.   Because it is hard.  It is way easier to train supervisors on how to run the machine or how to do the report.  As we try to shift this, let me give you a place to start.  Let’s start to train our supervisors to treat people the way they want to be treated.  You know, the good old Golden Rule.  Hey, it’s a start.

 

 

 

 

 

Help! I’m losing my best people and I can’t replace them! – Part 1.

As most of you know, the lawyers at good old WNJ go to a lot of events that you all attend, and sometimes we are presenting at those events.  We do things like panel discussions and programs on everything from Terms and Conditions to protecting your Intellectual Property.  And we talk about the law and take questions.  Lately we have been hearing a common theme in these questions, something that is clearly on your minds.  Whether you work in communications or human resources or purchasing, you are telling us:  “I can’t find and keep talented people.”  From the skilled trades to engineers, talented proficient employees are in short supply.  Now WNJ can’t make more engineers for you and we can’t teach employees to be electricians or welders –  we are exceptional lawyers, but we are not magicians.  So let’s focus on what we can help you do.  What we can help you do is retain the talent you have.  And no, this is not another employment lawyer telling you to sign all of your employees to covenants not to compete, although in some cases that might be a good idea.

(And by the way, I wrote about this about two years ago.  Must be we were having a talent shortage then too.  You can read that article here.  Some of this is going to sound strangely familiar after you do, but that is only because I cut and pasted from that blog post.)

Instead, we are going to focus on other ways to retain employees.  Soft skills, if you will, that might help you keep your really good employees.  What do you do?  I know, just pay them more.  Easy enough, right?  Of course that is not easy and that is not the answer.  The answer is a whole lot harder than that.  Tom Peters, who I am sure you know is a highly respected author and leadership consultant, is known for saying:  “Soft is hard.”     What does Mr. Peters mean by that?  Well, let’s use his words:

Yet a closer look reveals that for every quality program success    there were scores of misfires—programs, often absorbing vast amounts of time and sums of money, that produced little or nothing in the way of better quality or improved financial results, and in some situations made a slumping organization even more sluggish.

Though it’s dangerous to make such an assertion, in my view there was a singular reason for the mixed bag of results; and it was predictable from our excellence research—too much reliance on the apparently ‘hard’ procedures of, say, six-sigma programs and not enough attention to those underlying, apparently ‘soft’ attributes such as the respect for and engagement of the workforce.

*  * *

In the end: Hard is soft. Soft is hard. The traditionally viewed ‘soft’ variables such as ‘institutional culture’ and ‘inspired leadership’ are the principal keys to success—or failure.

You can see Mr. Peters’ whole paper here.  It is worth a read.  So Mr. Peters, back in 2012, was talking about things like “institutional culture” and “inspired leadership” and he has built on these ideas over the years.  But he is not the only one.

In order to retain employees, seems to me the first thing we need to know is why do people leave their jobs?  Again, we can go back to “they can make more money someplace else” but that can’t be the answer.  Dr. Travis Bradberry, coauthor of the No. 1 bestselling book, Emotional Intelligence 2.0, and the cofounder of TalentSmart, in an article he originally published on LinkedIn, gives nine primary reasons why people leave their jobs, and pay is not to be found among them.  Dr. Bradberry first says that “People don’t leave jobs, they leave managers.”  Now I think that might be a bit too broad of a statement – clearly, some people do leave jobs where they have a manager they really like.  But this does raise a good point.  It is not always about the money.  In fact, it is rarely about the money.  Let’s go back to those nine things that Dr. Bradberry says are the worst things managers do that cause people to leave.  He says managers who lose good people tend to:

  1. Overwork good people.
  2. Not recognize contributions and reward good work.
  3. Don’t care about their employees.
  4. Don’t honor their commitments.
  5. Hire and promote the wrong people.
  6. Don’t let people pursue their passions.
  7. Fail to develop people skills.
  8. Fail to engage their employees’ creativity.
  9. Fail to challenge people intellectually.

You can see Dr. Bradberry’s whole article here – again, it is a good read.

In addition, in that blog post I wrote in 2015, I noted:

In her article Strategies for Retaining Employees and Minimizing Turnover, Sarah K. Yazinski, an Admissions Counselor at the University of Scranton, cites strategic planning consultant Leigh Branham, SPHR, who claims:

88% of employees leave their jobs for reasons other than pay: However, 70% of managers think employees leave mainly for pay-related reasons.  Branham says there are seven main reasons why employees leave a company:

  1. Employees feel the job or workplace is not what they expected.
  2. There is a mismatch between the job and person.
  3. There is too little coaching and feedback.
  4. There are too few growth and advancement opportunities.
  5. Employees feel devalued and unrecognized.
  6. Employees feel stress from overwork and have a work/life imbalance.
  7. There is a loss of trust and confidence in senior leaders.

Remember, it is here.

Now look at these two lists:  Quite a bit of overlap, right?  Could be we are on to something here.

Next time we will talk about what to do about all of this.

New Light on an Old Problem – Sexual Harassment!

It is all over the news and it is certainly high profile.  From Hollywood to the morning news to the halls of Congress, powerful men (and yes I said men, because so far, that is who it has been but yes I also know women can be harassers) are being brought down by allegations of sexual harassment. There has been story after story after story in the news.  On top of that, in this digital age we have the #MeToo movement and Time magazine has even named “The Silence Breakers” as the person of the year.

We could spend a lot of time talking about these headlines and the shocking behavior alleged and in some cases admitted to by these people. But I’m an employment lawyer, so I am going to stick to the law and not the headlines.  What I’m not going to do is spend any time in this particular post going through the legal definition of harassment.

Here is what I do want to do.  I want to remind you of your obligations when you learn that harassment may be occurring in your workplace.  And we are going to go to the EEOC for some help on deciding what we should be doing about this.

The very first step to making sure that you don’t have harassment in your workplace is having a culture that does not tolerate this kind of behavior.  Having a policy and doing training is not going to do you one bit of good if you don’t live the policy.  This has to come from the top.  And the top has to be committed.  You’ve all seen the billboards, “Your kids learn by watching you.”  Your employees do too, and if you say one thing and do another you are sending mixed messages.

So, where do we start?  According to the EEOC’s Guidance we start with prevention:

An effective preventive program should include an explicit policy against sexual harassment that is clearly and regularly communicated to employees and effectively implemented. The employer should affirmatively raise the subject with all supervisory and non-supervisory employees, express strong disapproval, and explain the sanctions for harassment. The employer should also have a procedure for resolving sexual harassment complaints. The procedure should be designed to ‘encourage victims of harassment to come forward’ and should not require a victim to complain first to the offending supervisor. See Vinson, 106 S. Ct. at 2408. It should ensure confidentiality as much as possible and provide effective remedies, including protection of victims and witnesses against retaliation.

See https://www.eeoc.gov/policy/docs/currentissues.html.

Now take a look at that.  First, have a policy.  Then tell people about it.  Raise the subject of harassment with your employees, all of your employees, and inform employees of their right to and how to raise the issue of harassment.  Tell people you don’t tolerate harassment and that they can report it.  And do it over and over again.  I know what you are saying, “If we raise the issue we are going to get a line of people at my door wanting to talk about this stuff.”  That’s right, you are.  And you should welcome that.  At best, it is an opportunity to find and get rid of potential liability.  At the least, it is a chance to educate all of your employees.

OK, Steve, I’m doing all that. I have a great policy, I am training, I am raising the issue, and I still got a complaint.  Now what do I do?

Well, if you look at the news without any critical analysis it would seem that you just go fire the accused, right?  WRONG!  A couple thing here:  first, by the time a big story hits the headlines you can bet a lot of investigating has been done.  You don’t fire a multi-million dollar a year employee without having done some looking into the allegations against him or her.  And what about Congress you say?  Well that is different and we are focusing on the workplace remember?  So let’s go back to the EEOC for some help on what we do once we have reason to believe we have an issue:

When an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly. The employer should take immediate and appropriate corrective action by doing whatever is necessary to end the harassment, make the victim whole by restoring lost employment benefits or opportunities, and prevent the misconduct from recurring. Disciplinary action against the offending supervisor or employee, ranging from reprimand to discharge, may be necessary. Generally, the corrective action should reflect the severity of the conduct. See Waltman v. International Paper Co., 875 F.2d at 479 (appropriateness of remedial action will depend on the severity and persistence of the harassment and the effectiveness of any initial remedial steps). Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309-10, 44 EPD ¶ 37,557 (5th Cir. 1987) (the employer’s remedy may be ‘assessed proportionately to the seriousness of the offense’). The employer should make follow-up inquiries to ensure the harassment has not resumed and the victim has not suffered retaliation.

See https://www.eeoc.gov/policy/docs/currentissues.html.

Let’s break down what the EEOC is saying here. The key is INVESTIGATE.  First thing to remember is you don’t have to have an actual complaint to have an obligation to investigate.  If you receive a complaint or “otherwise learn” of alleged harassment. Investigate.  Anonymous complaint?  Investigate.  Think there is something going on?  Investigate.  Get an actual complaint?  Investigate.  And that means investigate, it does not mean just fire the accused.  Again, that is the key:  INVESTIGATE.

Once the investigation is done, if you determine harassment occurred, you take prompt appropriate remedial action to see that the harassment stops.

And what good does all this do you?

When an employer asserts it has taken remedial action, the Commission will investigate to determine whether the action was appropriate and, more important, effective. The EEOC investigator should, of course, conduct an independent investigation of the harassment claim, and the Commission will reach its own conclusion as to whether the law has been violated. If the Commission finds that the harassment has been eliminated, all victims made whole, and preventive measures instituted, the Commission normally will administratively close the charge because of the employer’s prompt remedial action.

See https://www.eeoc.gov/policy/docs/currentissues.html.

And that is the moral of the story.  If you have the right culture, if you put the preventive measures in place, and if you investigate and take prompt appropriate remedial action when you have an issue, you can avoid liability.

Oh, and people might actually want to work for you too.

If you are a business and you need a policy or training or any other help with this, drop me a line.

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