While you will probably feel frustrated by a poor performing employee, it’s important that you deal with the situation in an unbiased, fair and consistent manner as possible.  Always investigate the underlying factors for the problem or behavior.  Good managers constantly assess risk and identify and address potential failures early.

Ask yourself if you have:

• established clearly achievable and definable goals for your employee?
• kept the lines of communication open and set short term-milestones to monitor their progress?
• Scheduled regular reviews and encouraged employees to monitor their own performance and asked for feedback on their progress?

Finally, in some situations, poor performance may be a perceived rather than a real problem.  Investigating the situation thoroughly and providing direction which may not have existed before, allows you to make informed and impartial decisions as to the future of that under-achieving employee.

Another common mistake is for employers to deduct for meal breaks. Sure, you can deduct for a 30-min or 60-min meal break, but can you prove each and every time that the employee took that meal break away from their desk and weren’t working through their lunch break? Are they punching the clock each and every time they take that lunch break? Hope you can prove it because the Department of Labor squarely puts the burden of your hourly employees’ actual hours worked on you, the employer.

Do you have a rule that employees must have overtime approved in advance or you won’t pay? The FLSA does not draw a distinction between approved and non-approved overtime. If the employee works the overtime, you are required to pay time and one-half the regular rate for that overtime. Of course, you do have recourse if your employee violates your policy which is either writing them up or terminating them, but you are still going to have to pay.

These are just two of the many common mistakes employers make in dealing with the FSLA. As stated, these types of mistakes can cost you. The FLSA penalty provision permits plaintiffs in some circumstances to recover twice their actual back wages, and because it automatically entitles winning plaintiffs to their attorneys’ fees, even a minor violation can quickly become very expensive.

For more information on the FLSA and to confirm if your company is in compliance, check out the U.S. Department of Labor website at http://www.dol.gov/esa/whd/flsa/.

Summary of case: The plaintiff had worked for the defendant as an over-the-road truck driver. The plaintiff claimed that the defendant unlawfully terminated her when she became pregnant because she could not perform the heavy duty lifting aspects of her job. The defendant claimed her termination was a result of a pregnancy-blind policy denying light-duty work to employees who could not perform heavy lifting and also were not injured on the job. The plaintiff claimed the defendant’s light-duty policy was just a pretext. Reeves v. Swift Transp. Co., Inc. (05/16/06 – No. 05-5271)

The Court of Appeals affirmed the district court ruling which stated the light-duty policy was not a pretext because it did not take account of pregnancy and the defendant-employer did not make exceptions for nonpregnant employees while enforcing the policy against pregnant employees.

The district court noted that “to hold otherwise [i.e., to hold for Reeves] would result in the Court affording pregnant women more benefits and better treatment than other employees, instead of equal benefits and the same treatment as intended by the” Act. “For instance,” the district court continued, “if the Court determined that Plaintiff was entitled to light-duty work . . . the effect would be to provide greater protection and benefits to pregnant women than to other employees who suffered from a non-work related injury or illness, such as a heart-attack or cancer.”

The moral of the story for employers: make sure your company policy treats all employees the same..no special treatment, but equal. Additionally, apply it equally in all circumstances. One of the major reasons this employer prevailed was because the only “light-duty work” they ever provided was for employees injured on the job and qualifying under workers’ compensation guideliness. If they had made an exception in any other circumstance, the employee would have had a better supported argument for discrimination.

For example, if the employer and employee somehow reached an agreement that employment was not at will. What’s that mean? You formed either some type of expressed (written contract) or implied (verbal promise) agreement either knowingly or through misunderstanding. It’s important to keep in mind that your employee handbook speaks for you when you are not there. Therefore, it is imperative that if you plan not to limit your employees’ employment-at-will status that your employee handbooks and manuals aren’t drafted in such a manner as to run counter to what you intend. Review applicable state law for more information on compliance.

The other way in which employment at will is no longer applicable is as it applies to illegal termination procedures, such as firing someone based on discrimination or revenge. While you may feel confident that you are not discriminating, take a moment to review traits courts in one or more jurisdictions have ruled are protected:

Age, Race, Color, Religion, National origin, Veteran status, Union activity, Disability, Pension rights, Polygraph, Plant closing, Family and medical leave, Public policy, retaliation, sexual orientation, marital status, height, Weight, Political affiliation, Genetic trait or test, Tobacco use, Recreational activity, and Lawful consumable product.

How a business will respond to situations where their employment at will or other policies are challenged will vary. They are largely dependent upon each company’s individual circumstances. However, regardless if you have one employee or five hundred employees, one important “to do” item should be high on your list. Be sure that you have a policy in place as to how you will handle employee issues and remain consistent and methodical in its application. Furthermore, it’s in your best interest to treat every employee with dignity, respect and fairness. You’d be surprised at how far those basic principles will take you in your current and future employer/employee relations.

Managers can also have a positive influence on an employee’s mood which can then encourage productivity and creativity. They can:

■ Support people emotionally.

■ Monitor behavior in a positive way, such as giving positive feedback and provide information needed to do better work.

■ Recognize good performance, particularly in a public setting.

■ Consult with team members.

■ Help in a collaborative way.

The Americans with Disabilities Act (ADA) requires an employer with 15 or more employees to provide reasonable accommodation for individuals with disabilities, unless it would cause undue hardship. The U.S. Equal Employment Opportunities Commission defines a reasonable accommodation as any change in the work environment or in the way a job is performed that enables a person with a disability to enjoy equal employment opportunities. There are three categories of “reasonable accommodations”:

• Changes to the hiring application process
• Changes to the work environment (or way a job is usually done)
• Changes that enable employees with a disabilities to enjoy equal benefits and privileges of employment (i.e. access to job training)

Workplace barriers may be physical obstacles (such as inaccessible facilities or equipment), or procedures or rules (such as rules concerning when work is performed, when breaks are taken, or how job tasks are performed). Reasonable accommodation removes workplace barriers for individuals with disabilities.

A free guide from the EEOC called Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA can assist small business owners with ensuring that they are in compliance with the ADA. Its a great resource to have on hand.

Examples of what you cannot ask:

· How old are you?

· Where were you born?

· Have you ever been arrested?

· What are the dates you attended and/or graduated college?

· What type of child care arrangements do you have in place?

· Do you own or rent?

Examples of what you can ask:

· Are you over/under the age of 18?

· Have you ever been convicted of any crime?

· Describe the scope of your academic and/or professional education.

· Are there any activities, responsibilities or commitments that may limit your ability to meet our work attendance requirement?

If you are a manager, or business owner, and you are hearing stories about morale being low, then you know its time to take swift action to correct the problem. With morale directly related to productivity, can you really afford to let the problem go unaddressed?

Here are a few tips for dealing with low morale:

• Treat your employees as trustworthy, dedicated, well-intentioned and capable employees. In short, as equals.
• Be honest – regardless of how negative or positive the message. Honesty and trust are always highly valued.
• Celebrate success – even celebrating the seemingly small accomplishments lets employees see meaning in what they do each day and acknowledge their accomplishments.
• Recognize your employees publicly – if you have employees doing a great job, don’t let it go unnoticed. Be supportive and let others know how much you appreciate their efforts.

Choose an appropriate setting – make sure that the setting is free of distractions and interruptions. This includes turning off the cell phone and having your assistant take a message.

Set the stage – this means being prepared. Copying any relevant documents you need and setting aside adequate time to discuss. It also refers to confirming that the other party is ready and open to receiving the feedback. If you think they are going to be defensive and not open to receiving the feedback, address the problem head on. Let them know you feel they are uneasy and find out if there is anything you can do to make them more comfortable with the process. Ensure them that whatever is said will remain confidential.

Remain positive – Start with a positive piece of feedback to show that you’ve noticed and valued that particular behavior. The feedback should be descriptive rather than evaluative. Focus only on behavior that can be changed rather than on the individual’s personality.

Walk the Walk – if you expect a certain type of behavior, be prepared to practice that behavior as well. Additionally, if you make promises in the meeting such as additional training, greater involvement or more resources, follow through and deliver.

Ask for Feedback – even if the meeting went badly, ask for feedback on how you handled the meeting. Use the meeting as an opportunity to build bridges and show your willingness to personally improve.

Thought of the Day

“Criticism may not be agreeable, but it is necessary. It fulfils the same function as pain in the human body. It calls attention to an unhealthy state of things.” Winston Churchill

A nurse at a hospital was up for a promotion and was asked if she was willing to dispense emergency contraception, i.e., the “morning-after pill.” Her response was that she was opposed to emergency contraception because she believed it was a form of abortion, and it violated her religious beliefs. The hospital passed her up for the promotion and went with another employee who did not object to dispensing the contraception. The nurse sued and won on this claim. Nead v. Bd. of Trustees of E. Ill. Univ., CD Ill., No. 05-2137 (6/6/06).

The impact on employers: When possible, an employer is required to provide reasonable accommodation for an employees’ sincerely held religious beliefs.