When HR & The Supreme Court Are At Odds, What’s an Employer Supposed to Do?

Several human resources departments are instituting a radical idea. They’ve abolished all written performance documentation including performance reviews. Written documentation during manager/employee meetings is often out. Rating of individuals for compensation purposes is also abolished as is ranking of performers in a growing number of companies.

The desire to get rid of performance feedback in a documented fashion is in response to employee dislike of hearing feedback on only a yearly basis coupled with manager dislike of writing what are seen as valueless annual reviews.

In stark contrast to the jettisoning of traditional performance documentation, the legal world warns that managers act at their peril unless they maintain detailed personnel files on employees. Lawyers warn managers to rank employees and keep documents of performance so they can defend against wrongful termination, public policy and discrimination claims.

The necessity for documentation of performance as well as ranking was just reaffirmed in a US Supreme Court case called Lawson V. FRM, LLC. In the Lawson case the Supreme Court held for the first time that private employers can be held to federal whistleblower liability.

Courts and agencies require substantial documentation of terminations of whistleblowers. Without performance evaluations and ranking of performers everything devolves into ”he said/she said” proceedings.  Such contests are usually resolved against the employer.

I suggest there is a vast middle ground that answers many of these concerns. The middle ground is to train, train, train managers to give both positive and negative feedback as a matter of daily business. The middle ground approach is much more acceptable to employees and it is easier on managers.

This kind of exchange can be documented easily in notations in calendars, text messages, emails, customer meeting agendas, and project updates. Training managers to structure regular documented one-on-one sessions with regular written agendas can also be a terrific source of evidence of ongoing performance feedback.

Managers also need to be trained to identify who are top performers and who are poor performers. No matter how much these practices are repugnant to some HR professionals, managers, and employees these comparisons are necessary to justify why the whistleblower was terminated and others were retained. As a side benefit focusing development efforts on those ranked at the top helps to retain key employees.

HR Results provides two customizable courses designed to help managers bridge the gap between conflicting advice from legal and HR:

Coaching 101

Strategic Management 101

For more information, contact Judy Pearce at HR Results today.

650-518-0327 or judypearce@hrlegalresults.com.

Who's Got A Ticket To Ride? New Commuting Legislation For 50+ Employers

The new Bay Area Commuter Benefits Program requires employers with 50 or more full-time employees in the Bay Area (included counties listed below) to offer commuter benefits to their employees. Employers subject to the program must select a commuter benefit, register via the program website and implement their program by September 30, 2014.

The Bay Area Commuter Benefits Program requires these employers to offer one or more of the following commuter benefit options to their employees:

·      Option 1: Pre-Tax Benefit - Allow employees to exclude up to $130 of their transit or vanpooling expenses each month from taxable income.

·      Option 2: Employer-Provided Subsidy - Provide a subsidy to reduce or cover employees’ monthly transit or vanpool costs, up to $75 per month.

·      Option 3: Employer-Provided Transit - Provide a free or low-cost transit service for employees, such as a bus, shuttle or vanpool service.

·      Option 4: Alternative Commuter Benefit - Provide an alternative commuter benefit that is as effective in reducing single-occupancy commute trips as Options 1, 2 or 3.

Failure to comply may incur a financial penalty—amount determined on a case-by-case basis. Although the agency won’t be able to audit everyone, remember that employees who don’t get this benefit will be able to seek remedies at 511.org.

Employers can visit 511.org and click on Bay Area Commuter Benefits Program for program information and employer outreach staff assistance or call 511 and say “Commuter Benefits” at the first prompt to help employers get started or contact Judy Pearce, 650-518-0327.

*Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano and Sonoma

When You Get Rid Of All Manager Roles, Are You Left With A Popularity Contest?

Zappos—a nationwide retailer— adopted a new organizational structure that eliminates traditional managers, does away with the typical corporate hierarchy and gets rid of job titles. (See Washington Post @ Zappos Article) Could this end up being just like a high school popularity poll?

Please think about that for a minute. What will happen to the traditional manager’s job of terminating poor performers? At Zappos that responsibility is turned over to a group of employees. Their committee is charged with “monitoring the company's culture” to decide when performers are not a “good fit” — and then terminating those the committee deems as culturally unfit.

Who is going to stand up for the over 40 crowd who may not possess the youthful attributes of cultural fit?  And who is going to stop sexual harassment? Historically as well as today groups of employees don’t self-monitor all that well in preventing hostile environments. (Think Miami Dolphins bullying episodes.)

There’s a reason why Congress and state legislatures impose personal liability on managers who do not protect employees from discrimination and harassment.   The fact is that nothing short of that worked to stop illegal treatment at work.

Perhaps, as Zappos believes, work is better conducted among equals, but the system needs to have a place where the buck stops in terms of fair treatment — and it can’t be put to a popular vote!

A Google a Day Might Keep Embezzlers Away!

Another person in my same line of work recently told a group of hiring managers never to Google candidates during the resume review process.  The consultant apparently thought companies would be vulnerable to discrimination charges because Google provides access to ethnicity, race, or other protected class identifying facts that don’t appear on the face of resumes.

I would caution managers to weigh that possibility against the results of failing to check Google at all. One of my client’s employees recently exhibited very odd, threatening behavior towards his colleagues. This employee was entrusted with critical financial data. Co-workers were afraid, and a termination ensued. While I was terminating the employee the employer ran a Google check on the soon to be ex-employee — and a felony embezzlement charge against the employee showed up.  

My thoughts on using Google at the resume screening stage are this: Use it and consider the results! It's the ultimate in public information.

You can save everyone’s time and energy. Besides if you make a rule that hiring managers can’t use Google, aren’t you patronizing them to some extent? It’s as if you’re saying, "Only HR has the smarts to handle sensitive information." Also such a rule is ungovernable. There will almost certainly be rogue managers who will inevitably check on Google—just to find out what information you think they can’t handle.

Hence my advice: you probably won’t go to jail—or be successfully charged with discrimination—by checking out candidates on Google.