Coaching versus Discipline

Posted on June 26, 2019 in Compliance

Balancing coaching and discipline is a challenge in the workplace. I thought about this recently during a trip to Cooperstown, New York, home of the Baseball Hall of Fame and week-long summer baseball tournaments. My son played on his team (the Oilers) of twelve boys age 12 to 13 in a tournament of 104 teams from across the U.S. Standing, and often pacing, watching boys play baseball, I was consistently impressed by how the coaches managed the team of vastly different personalities, skillsets, and tendencies to follow rules. The experience caused me to reflect on how employers should distinguish between coaching employees to improve and disciplinary action to correct misdeeds.

Distinction One: Purpose Coaching teaches improvement.

Coaching is mentoring. We coach employees on how to get something done best; manners of efficiency; how best to work through a task; when to ask for help. Coaching opportunities focus on skill development and increasing productivity. Coaching works best when an employee’s positive intentions would be graded as a low B with the thought that mentoring achieves the desired solid A. In contrast, discipline addresses a violation of a policy typically that results in harm to the Company or others. Prime examples include insubordination, bad attitude, and workplace confrontation. None of these situations are resolved by mentoring. Rather, they concern violation of rules that should have been mastered sometime during puberty… we should hope.

Distinction Two: Method of Delivery

How we communicate coaching versus discipline distinguishes our meaning. Discipline must be in writing. Level one discipline, although sometime couched as “verbal warning”, should be and most often is reduced to writing. As we all know, a reasonable person would assume that if the behavior warranted discipline the employer would utilize its recognized disciplinary forms. On that note, email cannot be used for disciplinary action. If the Company has a discipline form, which all do, than it should be used when discipline is being enforced. Coaching typically comes in the form of one-on-one conversation. The boss and employee discuss how a project could have been performed best. Coaching should, however, be reflected in annual performance reviews as a form of encouraging continued improvement and success.

Distinction Three: Tone of the Message

Disciplinary action must be taken serious and be delivered with a firm message. Little comes across worse to a jury than testimony from a supervisor that he handed an employee disciplinary action and told him not to worry about it. Imagine a sexual harassment case in which the reprimanded employee testifies my boss told me this was a “slap on the hand.” Counseling comes with a different tone of voice. The message is a sincere desire to tutor and train so that employees succeed. The meeting should be a positive experience without any feeling of rejection or dejection.

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Navigating Age Discrimination Claims

Posted on April 16, 2019 in Compliance, Consulting

Age discrimination occupied my thoughts recently since turning 50 last month. I remember one of the first cases I worked on with my mentor in the practice of law. Man in his mid-40s claimed age discrimination against his Fortune 100 employer. I still recall my boss’s words: “This can’t be age discrimination, I’m older than him.” After 25 years of practicing law – odd to think now half my life – I understand why age discrimination claims are so difficult to defend and can offer my thoughts on how to avoid these challenging situations.

1. Change comes slowly

Most age discrimination claims are filed by long-term employees, and by the nature of having worked somewhere a long time, the employee typically has little (or no) documented disciplinary action. A new manager enters the picture. He wants quick results and sees himself as a change agent. He blames prior supervisors for never challenging the alleged inadequacies of the older worker. But the failure of no prior discipline means change comes slowly. Indeed, the employer and new boss must proceed with an attitude towards helping the employee succeed and not – as we too often hear – a campaign to paper the file.

2. Never encourage retirement

I often hear employers mistakenly speak of long-term employees who they want to put on a retirement plan. Or, people comment about establishing a company retirement age. However, federal and state law prohibits any form of mandatory retirement, except in the context of certain very well-defined public-sector jobs (e.g., firefighter). Employers should never talk with employees about “how long they plan to work” or “how many years do you think you still have in you.” Simply stated, an employee’s work-life longevity should not enter businesses plans unless the employee volunteers that information. A source of confusion stems from professional service firms set up as partnerships. Partners are not “employees”, and accordingly not covered by the Age Discrimination inml Employment Act (“ADEA”). Thus, a law firm can mandate that its partners (not employees) retire from partnership at a certain age. However, even this proposition has been challenged. In 2007, the EEOC entered a consent decree with the international firm of Sidley Austin that resulted in a $27.5 million payment to 32 firm partners allegedly forced to retire. See the EEOC Press Release: https://www.eeoc.gov/eeoc/newsroom/release/10-5-07.cfm.

3. Longevity = Severance

Most severance plans are structured with a lock-step progression and frequently capped out. These plans typical require execution of a release of claims in exchange for a payment. But a lock-step methodology might spend money unwisely. Severance plans should instead provide modest payouts for short tenured employees and weigh payouts more heavily towards long tenured (often older) employees. Older workers worry more about their next job and need more severance to be enticed to accept a release of claims.

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Harassment, Taxes, and Confidentiality

Posted on March 12, 2019 in Consulting

 The Tax Cuts and Jobs Act (TCJA), what normal people recall as President Trump’s tax law, contained a little know provision inspired by the Metoo# movement. Now, an employer cannot deduct as a business expense any settlement payment related to sexual harassment or sexual abuse if the settlement is subject to a nondisclosure agreement. Senator Menendez (D. NJ) proposed the amendment stating: “Corporations should not be allowed to write-off workplace sexual misconduct as a normal cost of doing business when it is far from normal. That is why I was proud to offer an amendment to the GOP tax bill that would both protect victims of sexual misconduct while ending the practice of taxpayers subsidizing the bad behavior of corporations or executives.” Perhaps Senator Menendez had good intentions, but his attempted quick fix missed the point. (It likely did not help that Senator Menendez’s corruption trial precluded him from being present for the vote on his amendment.) Here are my thoughts on what Congress should reconsider.

1. Sexual harassment should not have special status above race harassment.

I understand Congress’ desire to take a stand against sexual harassment. However, companies remain permitted to secretly settle claims of race harassment and deduct whatever expense they incur. I cannot rationalize a tax law that distinguishes (or should I say discriminates) between race and sex based harassment. I doubt anyone in Congress gave this much thought… unfortunately.

2. Confidentiality means less these days.

Companies should reconsider whether confidentiality provisions deliver the desired result. We live in a time of very few secrets. People access information off the Internet with ease. It takes very little time with a Google search to find how much Fox News and O’Reilly (secretly) paid to his various victims. Confidentiality clauses sometimes cause unintended harm. I learned that lesson early in my career. It was in the mid-1990s and I defended a man in his early 60s against a claim of sexual harassment brought by two women. The allegations never amounted to much and we settled the case on very favorable defense terms with a confidentiality provision. The payout was a total of $17,000 made by the company to a charity of the plaintiffs’ choice. The plaintiffs took home nothing. The next calendar year the same man came back to me accused by two different women again of sexual harassment. In deposition testimony, we learned that the second-suit plaintiffs heard a rumor that the prior litigants settled “confidentially” for $1.7 million. I always wondered if the second suit would have been filed if the settlement of the first suit had not been confidential.

3. Ban confidentiality provisions.

If Congress really wants companies held accountable for discrimination or harassment, it should adopt a law that bars confidentiality provisions in settlements of discrimination and harassment claims. Honestly, what good comes from a confidentiality provision? Just ask Michael Cohen.

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Adopt a Social Media Policy

Posted on January 4, 2019 in Compliance, Consulting

In November, Hilton Grand Vacations fired an employee who posted a picture on a Facebook group page that depicted lynching Florida State head coach Willie Taggart following FSU’s 41-14 loss to Florida. The administrator of the Facebook page determined the individual worked for Hilton off his LinkedIn profile and filed a report with his employer. Hilton determined – in a public statement – the conduct violated a number of its policies and exited the employee.

Experiences I have had with clients demonstrates justice is not always so efficient or swift. Some years ago a client called me when it received an internal complaint that an employee had extremely bigoted images and statements on his Facebook page. I saw the page and will refrain from describing images that were so bad I have not forgotten them. The client went a different direction than what I recommended: they gave the employee a second chance. I preferred he be fired. The decision not to terminate was influenced largely because the person in large part because they never adopted a social media policy. Thus, the obvious lesson: implement a social media policy.

While there are many good form policies available from public sources (e.g., attendance, EEO, wage and hour), the nuances of a social media policy must navigate the muddy waters created by the National Labor Relations Board. The NLRB has brought legal action against many employers contending that their social media policies interfere with an employee’s right to engage in concerted activity under the National Labor Relations Act. More specifically, employers cannot adopt any language in a social media policy that might suggest an employee will be punished for making comments about the terms and conditions of their employment. On the other hand, employers can advise employees that they may be reprimanded for posting on social media that constitutes bullying, harassment, or is otherwise offensive based on race, religions, disability, age, gender or national origin (or other status protected by law. An employer should retain a lawyer to help draft a robust social media policy that avoids attention from the NLRB.

For those who like reading government position statements, you may find a summary of the NLRB’s position and links to more detailed case rulings at: https://www.nlrb.gov/rights-we-protect/rights/nlrb-and-social-media. I hope you enjoyed this newsletter and look forward to seeing you at my lunch and learn (see side panel). I promise it will be enlightening and fun.

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Politics at Work

Posted on December 12, 2018 in Consulting

On election night, Weycer Kaplan celebrated our partner Tanya Garrison’s victory as the new judge of the 157th Harris County District Court.   Tanya joined the firm out of law school and has been a tremendous advocate and leader for 18 years. We know she will serve our community well, but the firm will sorely miss her.

It was easy for our firm to rally around Tanya, I mean, the Honorable Judge Garrison.  But this was a rare example when political discussion was cohesive and unified around our colleague and friend.  Most often, however, political discussion creates disruption which leads to tension in the workplace.   Here are some easy tips for employers who want to avoid politics contaminating the workplace.

Avoid Television News at Work

Years ago we installed a television in the firm lobby.  We debated what news station would be broadcast: Fox or CNN.  We quickly settled on Bloomberg News thinking – at the time — it was unbiased or at least less obviously lopsided.  Fortunately, our receptionist settled the matter and now permanently plays HGTV.  It was a smart decision. Remodeling and gardening spark no meaningful controversy.

Limit the Political Signage

During the election, we had too much political material in offices and cubicles.   Campaign shirts, political signs, or election buttons should stay away from the office.  Our firm like any other workplace has its progressives, conservatives, and even some moderates.  Each of them is entitled to their opinion without being confronted with a barrage of reminders that their views might not be shared by others.

Respect other Views

Remember, your co-workers’ political party affiliation is unlikely to have any bearing on their ability to perform their job.      Try not to judge colleagues based on opinions that will not impact the workplace.

 

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TEAM BUILD THROUGH VOLUNTEER WORK

Posted on September 25, 2018 in Consulting

 

Recently, I participated with the firm at a Houston Legal Aid Clinic where we evaluated potential cases for pro bono legal aid services. Tanya Garrison, my partner and (plug) candidate for Judge in the 157th Harris County District Court, organized this effort as she has for many years lead the Firm to participate in pro bono work.   Tanya has earned the firm repeated honors driving us to do what is right. Likewise, Margo recruited a group to sign-up for Habitat for Humanity early next month. I expect it will be a similarly rewarding experience for me and our firm participants.

 

What I took away from the Legal Aid Clinic and most assuredly will gain from the Habitat for Humanity project — in addition to feeling good about serving community – was the camaraderie developed in volunteerism. We gathered after for lunch talking about our experience of the day. The project took us out of our day to day law-firm environment into a setting without the pressures that come with work.

 

Volunteer work is also a far more productive and useful vehicle for engaging with co-workers than gathering for happy hour. Those more typical activities often focus on venting about work frustrations. And, people congregate for lunch and join in drinks (after work) within the same clique. None of that fosters team work. Indeed, it probably has an unintended consequence of isolating the excluded.

 

Volunteer activities help co-workers interact who might never otherwise speak. Even in a small company there is little time to visit with a colleague whose office is located on the other side of the building. Bringing co-workers together on a unified, non-professional effort creates a more personal connection and opportunity to learn about others.

 

Let employees select the activity rather than have a corporate directive. I jumped at Margo’s volunteer initiative because I enjoy physical labor and home projects. I have not volunteered at a Habitat House in many years. I remember well, however, how much fun I had shingling a roof years ago. (Not sure my current age permits me to engage in such effort.)

 

Colleagues must be careful not to judge or shame someone for not participating in a volunteer project. A valued co-worker might feel uncomfortable in a selected volunteer activity or simply have other commitments on the date selected. Others might dedicate their personal time to faith-based volunteer work. We have a right to volunteer or not, at whatever activity we chose.

 

Bear in mind, it is not “volunteer” work if an employer directs a non-exempt employee to volunteer. DOL regulations require employees be paid for any time spent in work for public or charitable purposes at the employer’s request, or under the employer’s direction or control. An employer must also pay employees for any activity in which the employee is required to be present irrespective of whether the employee is performing work for the employer.

 

See 29 C.F.R. § 785.44. and DOL Opinion Letter: https://www.dol.gov/whd/opinion/FLSA/2006/2006_01_27_04_FLSA.htm

 

One final comment, team building works best when the bosses participate.

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My 7 to 7 Rule

Posted on June 1, 2018 in Consulting

 

I adopted a new “7 to 7 Rule” some time ago after realizing that I let work spill over into the personal time of my family and colleagues. Simply, I choose to engage my associates between 7 a.m. and 7 p.m. during workdays. Any time outside that window, including weekends, are off limits.

That my family is the biggest fan of the Rule is no surprise. If I am thinking about work, I am not engaging with my family. Everyone needs a break and an opportunity to relax so that they are better prepared to fully engage the next day. If you want to read more on this concept, then check out The Power of Full Engagement by Jim Loehr and Tony Schwartz. I generally hate anything on the self-help aisle, but I love this book. Its message is straight-forward: we should first manage our energy rather than our time. In all aspects of life, therefore, we should focus, dedicate, and then take breaks so that we can begin each day stronger and more engaged. In other words, we should think of life as a series of sprints as opposed to a marathon.

There is another great rationale for this rule and the teachings in The Power of Full Engagement: namely, to be our best is physically and mentally impossible when we are tired and unfocused. My late-night texts and emails often turn into digressions and diversions. Bosses usually offer nothing genius in late-night communications. And sadly, late-night supervisor communications are more often associated with inappropriate intentions and very bad messages. See the demise of Roseanne. Only TV stars can blame Ambien; the rest of us live with significant personal impact for insipid comments. If a light-bulb really turns on, supervisors should take note and address the issue during normal business hours. The habit I have been developing is to send myself an email whenever a work thought surfaces; then, I can have a personal reminder during the next business day to address my thought with colleagues.

Most obviously, inconvenient urgencies arise affecting our teams. But the term “urgent” should be used literally and sparingly. If everything is urgent, then nothing is urgent and priorities get confusing. And when true urgencies arise, supervisors must contribute at the same level as their teams.

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DOL Game Changer

Posted on May 4, 2018 in Uncategorized

The stability and predictability of 78 years of wage and hour law has been in flux over the past year, and things got really interesting just last week. On Wednesday, July 26, 2017, the Department of Labor issued a Request for Information (“RFI”) that suggests the government might – I stress might – rework the fundamentals of wage and hour law. The RFI seeks comments on the regulations related to exemptions for executive, administrative, professional, outside sales, and computer employees and can be found at:

https://www.federalregister.gov/documents/2017/07/26/2017-15666/request-for-information-defining-and-delimiting-the-exemptions-for-executive-administrative

One question in the RFI struck me as particularly interesting and potentially game changing:

Question 7: Would a test for exemption that relies solely on the duties performed by the employee without regard to the amount of salary paid by the employer be preferable to the current standard test? If so, what elements would be necessary in a duties-only test and would examination of the amount of non-exempt work performed be required?

This question suggests that the DOL is seriously considering the abolishment of the salary-basis test in favor of classifying employees as exempt from overtime based solely on the type of work they perform. The history-geek in me finds this fascinating because a minimum “salary” for white-collar professionals has been required since 1938 without substantial challenge.

In fact, only recently did the DOL create an uproar when it sought to increase the salary threshold from $455/week to $913/week effective December 1, 2016. On the eve of that effective date, however, a federal judge enjoined the enforcement of the increased salary threshold. The DOL quickly appealed. Interestingly, the DOL acknowledged in its brief that it no longer seeks to enforce the salary threshold increase and insisted that the salary-basis test is valid. If you are unfamiliar with this litigation, please check out:

https://www.nytimes.com/2016/11/22/business/obama-rule-to-expand-overtime-eligibility-is-suspended-by-judge.html.

Yet now – because the story needs another twist – the DOL has issued an RFI that questions whether a salary-basis test even makes sense. What does this all mean? In short, the DOL is reconsidering fundamentals of overtime exemption regulations.

And the DOL is correct to rethink this issue. Whether someone earns money on an hourly, daily, or weekly basis has no economic significance. Instead, an exemption from overtime should be based on a minimum annual income test adjusted periodically based on a formula driven by published data from the Congressional Budget Office. Thus, the DOL should abolish the salary-basis test in favor of something more akin to a requirement that the FLSA exemption be governed by a minimum guaranteed annual compensation. I leave it to economists to set that figure, but I am pleased to see the government rethink the issue.

 

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LESSONS FROM LITTLE LEAGUE

Posted on February 27, 2018 in Consulting

I confess.  Spring is my favorite time of year because I am obsessed with little league baseball. My son surpassed my athletic talents when he turned five, and I live vicariously through him. From our years together on the field, I have learned three wise lessons that translate to the workplace: (1) think team; (2) play your position; and (3) no crying in baseball.

Think Team

Success on the baseball field is a team effort, which requires individual sacrifices for the team’s success.  Consider an analogy that every parent-coach can appreciate: we would like our kid to be the superstar, but every kid likes to win.  I love – and that is the correct descriptive verb – helping my son’s teammates improve their batting.  Sure, my ego may take a hit when I successfully help another kid perform better at the plate and move ahead of my son in the batting order. But there are no Ws for individuals in baseball; only a team wins.

The same is true in the workplace.  An intelligent boss should mentor employees by teaching them everything he or she knows. Such mentorship will ensure that the company’s customers and clients are provided the highest degree of service, which helps the business succeed in the long run. Yet such mentorship is often a frightening thought for a lot of managers who worry that employees might outperform them. As a result, too often bosses restrict their employees’ access to information and clients in order to stay at the top. The consequence of selfish behavior, however, is that the business and its customers both suffer.

I challenge everyone to pursue the power of the team rather than personal gain.

Play your Position

Everyone on a baseball team has a roll to play.  When the kids are little, they think being sent to the outfield is punishment.  But as they get older, they grasp that the ball can go anywhere at any time and that everyone has a job to perform.   Individual skill sets and inherent talents matter too.  It took me some time to understand why left handers (who cannot pitch) need to play first base or the outfield.  My son is a scrappy (read short) second baseman who should not be expected to play first base where height is a benefit.

The translation to the workplace is obvious.  Let individuals play their best position based on their inherent talents.  Challenging workers to perform tasks not best suited for their skill set makes little sense.  It can only result in frustration, resentment, and eventual departure.   The same goes for employee evaluations.  Why evaluate employees on broad criteria that picks at a person’s known weaknesses?   Give employees the opportunity to experience wins by playing their best position.

No Crying

There is, of course, a fair bit of crying in little league baseball.  It fades over time, but emotions can run rampant.  I have found that the most emotional players are often the most talented athletes.  With zero psychiatric training, my rationale is simplistic but accurate: they expect to always perform great and are frustrated by any lack of perfection.  When the higher performers lose control, they drag down the team.

We see this so often at work.  The type “A” boss can frustrate quickly with adversity.  Personally, I try very hard to emulate the traits of my calm and confident law partners who seem unfazed with adversity.  The best bosses control their emotions and are slow to react so as to ensure that their response is collected and respectful.

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Planning for 2018: What to Continue Doing, Start Doing, and Stop Doing

Posted on January 4, 2018 in Consulting

As we enter the new year, I expect many of you  plan to set new goals and resolutions. I know that I do. In fact, with the help of an executive coach that I have worked with for several years, I typically spend the holidays reflecting on the past and planning my future in what I like to call my Continue, Start, and Stop exercise. With this exercise in mind, here are my recommendations for what employers should continue, start, and stop  doing in 2018.

Sexual Harassment Training

2017 was the year of scandalous, high-profile incidents of sexual harassment. Example after example unfolded where women accused politicians as well as  Hollywood executives and actors of harass and abuse. With so much attention on gender discrimination, it would be unwise for employers not to make 2018 the year of education and prevention on this widespread problem. Invest in a qualified trainer to come onsite rather than assuming that videos and computer guided programs will be sufficient educational tools. Make sure that the top brass is present and engaged throughout the training process. This will ensure that every member of the team is educated on this subject. Finally, dedicate time to allow for thoughtful discussions.

Conduct a Wage and Hour Checkup

The Fair Labor Standards Act passed in 1938. Still, nothing so simple is more often violated. I applaud the small group of employers who routinely examine their pay practices and encourage them to continue. Most of those reading this newsletter, however, most likely do not routinely examine their pay practices. I suggest joining the minority and starting a fresh habit of annually reviewing pay practices to ensure FLSA compliance. Be smart about it. Remember that making changes in timekeeping and pay practices may spur employees to question if a change means they were previously denied some right. Thus, it is very important to work with an attorney before implementing any significant modifications in payroll policies.

Develop a Bonus Strategy

At first, AT&T impressed me with its announcement of $1,000 bonuses for 200,000 workers following the new tax law. My defense-lawyer mindset kicked in later, however, and I thought: two hundred million dollars awarded without regard to merit? Does that make sense? Seems to me that it would have been more logical to combine the money into a bonus pool and reward employees under a merit-based system.

Yet AT&T’s approach is a typical model for many businesses. Employers too often award bonuses based on a pro-rata allotment that is considered “fair”. I suggest that these employers stop this practice, and instead start a better bonus system such as publishing criteria based off quantifiable metrics to reward employees and develop a more positive corporate culture.

Please let me know if we can assist you in implementing these ideas.

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