Archive for January, 2015

Giving Employees a Second Chance

Better to give underperforming employees a second chance than to show them the door immediately, says Robin Paggi, our resident HR columnist. Learn why.

Giving Employees a Second Chance

In his article “Hire Slow, Fire Fast” on, Patrick Hull tells readers that, “If a person that you hire is not working out, don’t hesitate to move on quickly…I know many businesses that took time to try and change someone. I haven’t seen it be successful. People don’t change.”

I disagree. As an HR consultant, I have coached a number of clients’ employees who needed to change their behavior in order to remain employed. Some were able to do it and some weren’t, but giving people an opportunity to improve is important for a couple of reasons.

The first reason is that people usually are oblivious that their behavior is a problem. Why? Mostly because we don’t see ourselves as other people see us. For example, we might think that we’re confident and assertive while others think that we’re a blow-hard. We might think that we’re fun and charismatic while others think that we’re inappropriate. People are also oblivious that their behavior is a problem because others don’t tell them that it is. Employees need to have honest feedback about how their behavior affects the workplace in order to improve. It’s amazing what can happen when someone is told specifically what he or she is doing (or not doing) that is problematic.

For example, many years ago a manager told me that he refused to promote an employee into a supervisory position because the employee acted strangely. Despite the fact that the employee had applied for a promotion numerous times, the manager never told him why he wasn’t being promoted. I encouraged the manager to tell the employee about the specific behavior that he was exhibiting that was holding him back. A couple of months later, the manager told me that he wanted to promote the employee. With specific feedback and guidance, the employee was able to change the problematic behavior. The employee benefitted because he got the promotion he desired and the manager benefitted because the employee now behaved in an appropriate manner.

The second reason to give employees an opportunity and the tools to improve is, frankly, because it makes employers look better if they have to defend a termination. Firing employees too fast is one of the top ten things employers do to get sued, according to the article “Hostile Work Environment – 10 Things Bully Bosses do to Cause Lawsuits” on The author, a defense attorney, says that, “employers who take a long time to try to improve a negative situation with an employee, and who can show gradually increasing discipline over that time period are the ones who will look better in court. Juries like it when it looks like the employer went well beyond the minimum legal requirements and tried everything possible to ‘save’ the employer-employee relationship, but despite the boss’s training and coaching the employee just refused to do the work.”

Obviously, I’m in favor of giving employees a chance to learn new behaviors to improve their performance. However, I’m not in favor of giving employees too many chances. Doing so doesn’t inspire employees to be accountable and it can backfire on employers.

An excellent example of such backfiring is an unemployment hearing that was documented in the article “Should Employees Be Given Second Chances?” on Author Tashwanda Pinchback says that, despite committing numerous infractions (stealing time, excessive tardiness, and being rude during a counseling session), an employee was offered a different work shift instead of being fired. The employee declined and was subsequently terminated. At the unemployment hearing, the employee said he was fired for not accepting the position. In the employer’s defense, the manager presented the list of the numerous infractions the employee had committed, to which the hearing officer asked:

• If you have documented evidence that he was stealing time, why didn’t you terminate him then?
• If arriving to work on time is an essential function of his position, why did you wait until he was tardy 42 times before terminating him?
• If he was unprofessional during a counseling session, had already stolen time, and demonstrated a pattern of excessive tardiness, why didn’t you terminate him at that point?
• And why after all of the aforementioned issues with his job performance did you offer him another position within the company?

The employee did not get unemployment benefits; however, this example demonstrates that courts could become suspect of an employer’s motive to terminate when the employer allows an employee to repeatedly behave inappropriately without consequences.

Something else that causes suspicion is a lack of documentation. If you are giving employees more chances, be very diligent about documenting the performance issues or the delay in termination will generally backfire too.

My advice to employers is to give wayward employees the opportunity and tools to improve. If they can’t turn their behavior around in a reasonable time period, then guide them toward the door.

Robin Paggi is the Training Coordinator at Worklogic HR.

Robin last wrote for us about making sure the applicant is a good fit for the job and before that about  cure for inappropriate behavior at work. Before that she wrote about cyberloafing, on business lessons from a Christmas story and before that about cell phone policies at work. She has also written for us on rules for holiday parties at work and before that about preventing workplace bullying.

Joint Employer Doctrine Now Law in 6th Circuit, EEOC Says in Settling Case Against Contractor

For the first time, the U.S. Court of Appeals in the Sixth Circuit applied the joint employer theory to a Title VII case, and that means that a general contractor could be held liable for racial harassment against its black employees by white employees of its subcontractor, the Equal Employment Opportunity Commission said.

The general contractor settled the lawsuit for $95,000, but the important legal takeaway is that the general contractor couldn’t absolve itself by arguing that it didn’t hire the black employees and thus wasn’t responsible for how they were treated.

Under the joint employer theory, two separate entities are considered to be joint employers if they share or co-determine essential terms and conditions of employment. The Sixth Circuit adopted the joint employer theory in the Title VII context and held that there was sufficient evidence to hold Skanska liable as a joint employer because Skanska supervised and controlled the day-to-day activities of the buck hoist operators.

So if you’re an employer in the states that are under the Sixth Circuit’s rule (Tennessee, Ohio, Michigan, and Kentucky), you now are on notice that you could be held jointly for an employment law violation if you meet that criteria.

The case that settled was EEOC v. Skanska USA Building, Inc., Civil Action No. 2:10-cv-02717) in U.S. District Court for the Western District of Tennessee. You can read more about it here.

Employers Settle Two More ADA Cases

The EEOC announced settlements yesterday in two more Americans With Disabilities Act, each involving different issues under the law but with the same outcome–the employer paying money to the alleged victim.

In one case, the EEOC said that Mont Brook, Inc., doing business as The Cleaning Authority of Plainfield, an Illinois-based house cleaning service, will pay $15,000 to a former employee who was the alleged victim of harassment because he walked with an abnormal gait due to a stroke. According to the agency’s complaint, one of the company’s officers referred to the employee as “a cripple,” mockingly imitated the way she walks, and told her that she was being a “hysterical basket case” when she objected. The officer also reportedly asked the employee, “Are you crippled?”

This conduct amounted to disability-based harassment, and throw in an illegal disability-related question for good measure.  No wonder the employer settled the case!

More on that settlement is here. I wrote about a court’s ruling allowing the case to go forward over the summer.

In the second case, the EEOC had sued KMart Corp. for an alleged ADA violation in its handling of pre-employment drug testing. According to the complaint, after Kmart offered Lorenzo Cook a job at its Hyattsville, Md., store, Cook advised the hiring manager that he could not provide a urine sample for the company’s drug screening due to his kidney disease and dialysis. Cook requested a reason­able accommodation such as a blood test, hair test, or other drug test that did not require a urine sample, the EEOC charged. But Kmart refused to provide that alternative test and denied Cook employ­ment because of his disability, the EEOC charge.

For that alleged infraction, KMart agreed to pay $102.048, the announcement said.

The cases involved very different fact patterns, but the same bottom line. The need to settle could have been avoided by doing what the ADA requires.

Paid Parental Leave Bill Introduced in U.S. House; Would Give Fed Workers Six Weeks Off

Maybe, just maybe, if Congress can see fit to provide paid family leave for federal employees the private sector will be inspired to do the same for their workers. At least one can hope that’s the case as a group of House Democrats on Monday introduced a federal workers paid leave bill.

The legislation would eligible federal workers six weeks of paid leave for purposes related to the birth or adoption of a child. The bill’s lead sponsor is Rep. Carolyn Maloney (D-NY). She’s hoping to get some Republicans on board also.

Under current regulations, federal workers are eligible for 12 weeks of unpaid parental leave and can substitute paid sick and annual leave for part or all of that unpaid time.

Maybe this small step on the federal level will lead to changes downstream in the workplace. U.S. Labor Secretary Tom Perez, for one, has criticized the country’s lack of paid leave laws.

Employer to Pay $20K to Victim of Sexual Harassment, Retaliation, EEOC Announces

Workplace harassment makes up about 30 percent of all charges filed with the Equal Employment Opportunity Commission, EEOC commission Chair Jenny Yang said last week in a public meeting on finding ways to prevent harassment from occurring.

Meanwhile, the work of eradicating harassment proceeds case by case. The latest example occurred today, when the EEOC announced that a Detroit-based automotive wheel and accessory store chain has agreed to pay $20,000 to settle charges of sexual harassment and retaliation against a female employee.

Specifically, the EEOC said that Hot Wheel City had subjected the female employee to a sexually hostile environment by a male co-worker. The EEOC also charged that the employee reported the sexual harassment and was thereafter fired in retaliation for complaining.

Take these words to heart if you should find yourself staring at a sexual harassment charge or lawsuit:

“Hot Wheel City has committed to making significant changes that should be beneficial to current and future employees as well as the company,” said EEOC attorney Nedra Campbell. “The company should be commended for resolving this case at this juncture-well before trial.”
To read more, go here.

Ensure Job and Applicant Are a Good Match

A match between job and applicant might look good on paper but turns out to be a disaster in reality. Our resident guest blogger Robin Paggi offers some tips to employers on what they can do to make sure the person they are hiring is a good fit for the job.

Ensure Job and Applicant Are A Good Match

By Robin Paggi

Once upon a time, I was a secretary. I was really good at answering the phone and interacting with customers, but I was really bad at filing and just about everything else a secretary is supposed to do. As a result of being inept, I became burned out.

According to the article “Conquering Burnout” published in the January/February issue of Scientific American Mind, the term “burnout” became popular in the 1970s and was used to describe the discouragement young health care professionals and social workers were experiencing because of having insufficient resources to do their jobs well. Today the term can be applied to any employee in any industry who is experiencing exhaustion, cynicism, and/or feelings of inefficacy (lack of power or ability to produce a desired result). Burnout can be caused by any number of things; however, the authors say, “the true culprit is a mismatch between a person and a job.”

A mismatch can be caused by things such as your boss expecting you to do something that clashes with your principles, according to the authors. I agree; however, they do not discuss what I consider to be the most basic causes of a mismatch: not having the right skill set for the job (like when a person who is lousy at filing is responsible for filing) and not working in the right environment.

For example, in my secretarial job, I usually sat at a desk for eight hours a day in a quiet office completing the same tasks over and over. I now know that I work best when I’m moving from place to place, when I have some music playing in the background, and when I’m completing a variety of tasks.

Because burned out employees don’t perform well, it’s imperative that employers screen job applicants carefully to try to ensure there is a match between the person and the job.

First, find out if their skill set is a match by asking questions about their experience in performing the tasks that they will be required to do for you. For example, secretarial applicants could be asked questions like, “What filing management techniques do you use?” If the applicant gets a gleam in his eye talking about color-coded files, it’s probably a good match. If the applicant has been a secretary for a while and doesn’t know what you mean by “filing management techniques,” it probably isn’t.

In addition to asking questions about the applicant’s knowledge, skills, and experience, I suggest trying to determine their preferred work environment by having them tell you what they liked about their previous jobs, work environments, and supervisors. It’s probably a mismatch when:

• The applicant tells you that she liked working with lots of different people, and your job will require her to work alone in an isolated office somewhere.

• The applicant tells you that he liked the variety and fast pace at his last job, and your job is slow and monotonous.

• The applicant tells you that her favorite supervisor was very supportive and nurturing, and you’re not.

Finding the right match doesn’t mean that burnout will never happen. However, it does mean that employees have a fighting chance to be good at their jobs, which can help prevent it.

Even though I wasn’t a competent secretary, I’m very grateful for the experience for many reasons. At the top of the list is that I got to learn what I’m not good at doing, which eventually led me to the profession that is the right match for me.

Robin Paggi is the Training Coordinator at Worklogic HR.

Robin last wrote for us about the cure for inappropriate behavior at work. Before that she wrote about cyberloafing, on business lessons from a Christmas story and before that about cell phone policies at work. She has also written for us on rules for holiday parties at work and before that about preventing workplace bullying.

Bad Lab: John Hopkins Pays $359K to Settle DOL Charges It Discriminated Against Black Women

The U.S. Department of Labor put the employment practices of the John Hopkins University’s Applied Physics Laboratory under the microscope and found them wanting. DOL announced yesterday that the laboratory–which does over $3.6 billion in business with the federal government–has agreed to pay $359,253 to settle allegations of discrimination made by two African American women who were employed at its Laurel, Md. facility. An investigation by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs determined that the lab violated Executive Order 11246, which prohibits federal contractors from discriminating in employment on the basis of race or sex.

DOL said OFCCP compliance officers had determined that the lab discriminated against two African American women who worked there in 2010 and complained separately about a hostile work environment. The second woman also alleged she’s been subjected to pay discrimination. When the women complained through the labor’s EEO process, they were further harassed and retaliated against, resulting in one woman being fired and the other resigning.

OFCCP compliance officers found that the lab had discriminated against the two former employees because of their race and because they complained about the discrimination. The investigators also confirmed that the second employee was paid less than her similarly-situated male colleagues.

The settlement also imposes other conditions on APL, including educating its supervisors on EEO requirements, posting rights notices in English and Spanish.

News of this settlement should filter down to the rest of the state. Johns Hopkins University and its associated hospital constitute the largest employer in Maryland, DOL pointed out.

Read more about the settlement.

EEOC Sues Ruby Tuesday, Alleging It Intentionally Denied Resort Jobs to Men

It is quite audacious in this day and age for an employer to intentionally advertise that it won’t accept job applications from a certain gender. Yet that is what a nationally known restaurant chain stands accused of doing by the nation’s lead civil rights enforcement agency.

Ruby Tuesday violated Title VII of the 1964 Civil Rights Act by refusing to hire any men to fill temporary summer jobs at a resort in Park City, Utah, the Equal Employment Opportunity Commission charged in a lawsuit.

According to the EEOC, the restaurant posted an internal advertisement in the spring of 2013, seeking persons to fill temporary jobs in Park City, Utah. The announcement, posted within a 10-state region, promised company-provided housing for those selected. It expressly said that only would be considered.

Ruby Tuesday’s gender-specific internal posting excluded Andrew Herrera and at least one other male employee from consideration for the temporary assignment. As justification for hiring only men, the restaurant cited fears about housing employees of both genders together.

“It’s rare to see an explicit example of sex discrimination like Ruby Tuesday’s internal job announcement,” noted EEOC San Francisco Regional Attorney William R. Tamayo. “This suit is a cautionary tale to employers that sex-based employment decisions are rarely justified, and are not consistent with good business judgment.”

Here’s more about the lawsuit.

Beer Distributor Pays $50K to Settle Religious Bias Case Against Rastafarian Truck Driver

True beer lovers will gladly take their next 6-pack from whoever delivers it to them–whether or not the person has a beard.

But that message apparently flew right by Mims Distribution Company, a beer distributor in Raleigh, North Carolina, which according to the Equal Employment Opportunity Commission refused to hire a practicing Rastafarian because he refused to cut his beard to comply with company policy. The company made no effort to reasonably accommodate the applicant, the EEOC said.

The company will pay $50,000 to settle the EEOC’s Title VII lawsuit against it, the commission announced.

“Employers are required by federal law to make exceptions to their dress and grooming policies in order to accommodate a job applicant’s sincerely held religious beliefs – unless doing so would pose an undue hardship,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office.  “This case demonstrates the EEOC’s continued commitment to fighting religious discrimination in the workplace.”

The settlement comes on the heel of a lawsuit that the EEOC filed last week against a Raleigh, North Carolina, accusing it of discrimination against a Rastafarian by firing him because he wouldn’t remove his head covering, which would have violated his religious beliefs.

Perhaps the local chamber of commerce in North Carolina should sent out reminders to companies that they have to let employees wear a beard if it doesn’t interfere with their job duties or cause the company an undue hardship.

Here’s EEOC’s announcement of the settlement.

Jury: Trucking Company Liable under ADA for Firing Driver Who Self-Reported Alcohol Abuse

Again, an employer’s policy allowing for no exceptions to its employment policy, without any possibility of a reasonable accommodation of an employee’s disability, has backfired.

The employer this time was Old Dominion Freight Line Inc., which according to the Equal Employment Opportunity Commission, terminated a trucker who had self-reported his alcohol abuse. A federal jury last week awarded the driver $119,612 in back pay for this violation of the Americans With Disabilities Act, the EEOC announced last Friday.

According to the EEOC’s suit, the former driver self-reported an alcohol problem under the company’s “Open Door Policy” seeking assistance from Old Dominion.  The driver and local management were unaware that the company maintained an unwritten policy of not allowing drivers who self-report alcohol abuse to return to driving.  Although Old Dominion would never return the driver to a driving position, the company asserted that it accommodated the driver by offering him a part-time dock position at half the pay and no health benefits.  Old Dominion later charged the driver with job abandonment and terminated him in June 2009.

“The EEOC has always maintained that Old Dominion had a right to ensure that its drivers comply with DOT Regulations so as not to endanger the public,” said General Counsel David Lopez.  “At the same time, the ADA requires that Old Dominion make an individualized determination as to whether the driver could return to driving and provide a reasonable accommodation of leave to its drivers for them to obtain treatment.  To maintain a blanket policy that any driver who self-reports alcohol abuse could never return to driving — with no individualized assessment to determine if the driver could safely be returned to driving — violates the ADA.”

Here’s my prior writeup on the litigation when first filed by the EEOC.

Here’s more from the EEOC’ announcement of the liability finding.