Author: Duffy Pearce

Burn-out: Every Day Experiences at Work or Disease?

Exhaustion? Negativity? Hard time completing tasks? Are these occasional parts of everyone’s job or are they symptoms of a medical problem? The World Health Organization just announced that if you’re experiencing those three symptoms at work you have an occupational condition called burnout.

How does burnout impact employers?  

Consider this scenario: You’re faced with a doctor’s note stating that your employee has a diagnosis of burnout evidenced by symptoms like exhaustion, negativity and a hard time completing tasks. Here are several questions that stand out.

  1. What issues arise under laws like FMLA, CFRA, FEHA, ADA?
  2. What would a reasonable accommodation look like?
  3. What if the employee is on a performance warning or performance improvement plan for problems such as negativity and failure to complete tasks in a timely way?
  4. What if it is a senior employee who makes himself or herself available 24/7 by choice?
  5. What if round the clock availability is a requirement of the job?  

Here’s some brief analysis of the questions.

Question One: What issues arise under laws like FMLA, CFRA, ADA and FEHA?

For covered employers, one major issue that will arise under FMLA and CFRA is whether burnout is a serious health condition that makes the employee either unable to work at all or unable to perform one or more essential functions of the job. For employers covered under the ADA, one major issue will be is burnout a physical or mental impairment that substantially limits “major life activities” such as walking, sitting, reading, seeing, and communicating?

FEHA prohibits disability discrimination in all aspects of employment. It also states that an employer cannot take any type of adverse action because the employer perceives that the employee is disabled or based in whole or in part on the employee’s disability. Another relevant requirement is that the employer make reasonable accommodation of an employee’s disability absent undue hardship

Question Two: What would a reasonable accommodation look like?

The same issue arises regularly when an employee’s doctor sends a note that the employee is “stressed.” For both stress and burnout, it’s difficult for employers to assess to what degree is all work inherently stressful or is there a way that individual stress triggers can be removed from the job and still get the whole job done?

Question Three: What if the employee is on a performance warning or performance improvement plan for problems such as negativity and failure to complete tasks in a timely way?

Analysis of this issue starts with the job description. Does it require an employee to maintain stable performance in times of opposition or adversity? Is the employee required to meet deadlines and commitments? Then the issue arises of whether the requirements of the performance document discriminate against disabled individuals with burnout diagnoses.

Question Four: What if it is a senior employee who makes himself or herself available 24/7 by choice?

What if round-the-clock availability is a requirement of the job? That begs the question of whether there a defense of undue hardship if your business is just like all off he businesses in your area? An example might be most of the companies in the Silicon Valley.

We’ve all seen studies that conclude that 24/7 availability—whether by choice or command— is a source all kinds problems including headaches, sleeplessness, irritability, exhaustion and failure to meet the requirements of the job. We’ve also listened to the stories of Silicon Valley entrepreneurs and millennials who thrive on pressure and long hours. If it is the latter, employers could seek to defend their workplace and argue it would be undue hardship to reduce the characteristics of work that most Silicon Valley employees say they thrive on.

How are you preparing for burnout notes from physicians? Thoughts welcomed.

LAYOFFS AND LAWSUITS

bully-3233568__340ARE YOU READY FOR AN ECONOMIC SLOWDOWN?

Although economists have been wrong in the past, this time it seems as if the majority of market observers are predicting a slowdown in the economy. What should business owners be doing to get ready for a potential downturn in business?

Historically, downturns often mean layoffs. One of the most important steps you can take now is catching up on performance feedback. Why the emphasis on documenting performance feedback?

If you’re going to use performance as a factor in determining who’s going to lose a job, you have to be able to demonstrate that performance issues have been documented. It’s a major defense against the discrimination charges that are often filed post-RIF’s.

Lack of documentation is a major problem

When preparing a defense, employment lawyers complain that 80% of the time there is no supporting evidence in the personnel or manager’s file. How can you show the appropriate performance designation if you don’t have any written records? Sometimes verbal records can be useful, but it is much more difficult to win with verbal records.

When you think about it, you can see why individuals file charges when they are told they were selected based on poor performance—yet they believe they were never given any negative feedback.

Performance documentation made easy

If your employee records don’t currently include performance documentation, here’s a technique you can use to augment them quickly:

  1. Hold a performance assessment meeting with your managers.
  2. Designate someone to take notes as each manager cites specific examples of both positive and negative performance for each employee.
  3. Managers should then sit-down with each employee to give the feedback coming out of those assessments.
  4. Senior management should follow up to make certain the feedback was given and understood by the employee.

Smart policy in good times and bad

The benefit of applying this process isn’t limited to avoiding lawsuits. Employees who receive positive feedback are often inspired to do even better. Clients who have followed this recommendation report improved performance all around.

 

Are You Giving Dads the Bum Rush?

downloadThink that dads deserve the same amount of time for parental bonding leave as moms? If you answered “no,” it’s time to review your parental bonding policy. The EEOC recently announced that that practice of giving moms more bonding time is discriminatory.

Employers are required to grant fathers equal amounts of paid parental leave.

Many employers grant more leave to mothers based on the generally held assumption that mothers need more time to bond after the birth of a child. There’s no science to justify that belief.

This announcement also discussed modified work schedules—given to ease the transition to work after the arrival of a new child— and said that when such schedules are only offered to mothers, the employer violates the law.

Mindy E. Weinstein, acting director of the EEOC’s Washington Field Office said, “This settlement ensures that {the Employer} will provide equal opportunities for time off to new dads and new moms, which is what the law requires, and what makes sense for families.”

So, take a look at your parental leave policies and practices to see if you are giving moms and dads equal treatment. If not, take the time to update your company documents so that you are meeting this standard. Questions? Contact me by calling 650.518.0327 or by email at judypearce@hrlegalresults.com.

Employee or Independent Contractor?

downloadHow the California Supreme Court Leans

If you’ve been reading recent HR and employment law newsletters, you know that the California Supreme Court just cracked down on employers who classify individuals as independent contractors­—as opposed to hiring them as employees.

The newsletters describe the new stringent “ABC “test necessary for employers to prove to defend their classification of an individual as a contractor.

Under this new ABC test, a worker will be presumed to be an employee unless the employer provides proof of all the following prongs:

  • (A) That the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
  • (B) That the worker performs work that is outside the usual course of the hiring entity’s business; and
  • (C) That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Evaluating the Risk

The government’s interest is in collecting taxes and protecting employees by requiring workers’ compensation insurance. That is why the presumption is that an individual is an employee. Given the new stance of the Court, now it will be far more difficult to prove the independent contractor classification.

In the past, when asked if an individual could be classified as an independent contractor, I answered that the person was probably an employee. In light of this ruling, that advice is doubly true.

Whatever savings you achieve in benefits, overtime, and taxes, they pale in comparison to the fines and legal costs you’ll face if you don’t have the “ABC” proof necessary to defend your decision.

Sexist, Racist or an All-Around Jerk?

During a recent investigation of a hostile environment claim, I asked whether the boss in question treated people differently based on sex or race. She said, “No, he’s an equal opportunity jerk. He mistreats everybody.”

She went on to say that the boss ridiculed people by publishing negative, mean-spirited performance feedback emails copied to the entire staff. She also said that he micro-managed her so much that she was unable to carry out her assignments­—particularly because his directions were often internally inconsistent. As with many hostile work environment claims the “jerk” is typically the owner or CEO of the company. What is HR or the Board to do?

In many situations, there is legal liability associated with the boss’s actions, and then legal counsel’s warnings can change behavior. But more and more I am receiving complaints that are more like bullying and less like harassment of a protected class. The California legislature made a finding that bullying or abusive behavior reduces productivity and increases stress at work but a cause of action has not been created. Some legal practitioners predict that bullying claims will be deemed actionable in the near future.

So, the question remains: what to do with the equal opportunity jerk today? Some solutions include

  • Explain to the bully that abusive behavior can infect the whole organization, starting with wasted time exchanging stories of mistreatment to and ending with dealing with emotional issues-like crying.
  • Bullying can also lead to top performers resigning to find more pleasant work environments—even the ones who aren’t be subjected to mistreatment leave.
  • It can’t hurt to tell the bully that the times are changing and what used to be tolerated is becoming a liability. You could say, “Why not start early getting rid of the behaviors that are increasingly risky in terms of liability?”

Any thoughts or suggestions?

 

Good & Bad News: Recent Rulings on Abusive Work Environments

searchIf you’ve ever dealt with litigation over workplace stress, you’ll be glad to know that the court doesn’t always side with the employees. Here are a couple of examples:

  • Some times referred to as the “Goldilocks decision”, the first case involves a plaintiff who requested an accommodation of a less stressful job. The transfer was allowed. The employee didn’t find the transfer to be interesting enough so asked for the accommodation of a transfer to a middle-of-the-road stress job. The court held that it was not reasonable to ask for a “just right amount of stress” job.
  • In November of last year, a Florida District Court decided that an employee cannot immunize herself or himself from stress and criticism in general. In this case the employee had requested an accommodation from a supervisor’s “hostile confrontations.” The court commented that the obligation to make a reasonable accommodation does not extend to providing an “aggravation-free” or “peaceful calm” environment.

Yet, it’s not all good news. California employers continue to deal with hostile environment and constructive discharge claims arising out of what is described as “bullying.”

The courts have made it clear that the manner of conducting discipline rises to the statutory definition of abusive conduct when the discipline is “harshly and constantly criticizing” of one individual. Public criticism of an employee often is seen as unprofessional and stress producing.

On the other hand, most states have uniformly found that stress claims arising out of disciplinary action or performance improvement plans are not covered under workers’ compensation law.

A Case in Point: An employer recently allowed an employee who was the vice president of finance to work at home. The VP’s job required her to be available for on the spot determinations regarding cash flow. The employee said that she suffered from an anxiety disability and requested an accommodation that she be given 15 minutes time before responding to telephone requests for cash flow estimates. It would seem that this would not be a reasonable accommodation because it would reduce the company’s ability to compete. Nonetheless the employee filed a lawsuit.

Although this seemed like a frivolous claim, the company narrowly avoided bankruptcy given the huge legal fees they were forced to pay.

Clearly these doctrines are in conflict. How are employers supposed to navigate these murky waters when legal authority is uncertain?

So, what is learned from this? It’s important to train managers to run to the HR department whenever the word “stress” crops up. Additionally, managers should be trained that discipline should always take place in private. In our society, yelling at an employee in front of coworkers is thought to be abusive.

Reduce risk by always engaging in an interactive process when an accommodation is requested. At these sessions, employees can learn what the rules require—and what they don’t­—in terms of reasonableness of requests. Make sure they know that a Goldilocks accommodation is not reasonable.

Finally, in job interviews and in job descriptions it should be clear that some jobs involve pressure. Employees should be aware that the ability to handle pressure and ambiguity is a requirement of the job.

Your “Culture” Statement: Is it Inspirational or Demotivating?

Wit240_F_55079262_fgBBx7Q5ETfLObYEmAc23ls4qBtETD7yh the best of intentions many employers craft, edit and perfect culture statements full of noble principles, only to then have them ignored or used as the butt of ongoing jokes. Why?

There are a variety of reasons. Some of them include:

  • Employees know the HR consultant wrote it. Senior management hasn’t really bought in and won’t play by the same rules.
  • The values promoted don’t transfer into actual behaviors employees have seen in action.
  • Employees whose workplace behaviors fall short of the cultural ideal get rewarded with bonuses and promotions anyway.

What to do? Start by making sure your values are framed in terms of well-defined behaviors. For example one company has the Core Value “Embrace Change.” In behavioral terms this could be phrased “Deals successfully with ambiguity and change.”

To be sure your values are put into action, make sure all performance feedback includes implementation of core values and behaviors. Then, don’t reward performers who aren’t walking the cultural talk.

Finally, develop your culture statement within your management team with input from a task force of employees. If you just slap standards designed by an outsider into your handbook, it is often received with skepticism—as it should be. It doesn’t take a lot of time to develop a cultural behavioral statement, so why not put in a couple of hours to have a culture your employees will respect?

 

Disability Leaves of Absence: What’s an Employer to Do?

 

240_F_74851918_9o2xEnk7PIsyrql75atgQWLiG0BZ7FS7Implementing the regulations that cover leaves of absences for disabled employees can be challenging for many small companies.

A recent publication from The Equal Employment Opportunity Commission (EEOC) provides some guidance on how to resolve these thorny issues. The report is at https://www.eeoc.gov/eeoc/publications/ada-leave.cfm.

If you don’t have time to read it, here are some highlights:

  • Don’t require employees on leave to report in regularly. A phone call from you shortly before return date is OK particularly if it is to talk about reasonable accommodations.
  • When it comes to reasonable accommodations, don’t rely on a maximum days of leave policy that applies to all employees. It may be reasonable to give many more days than your maximum as an accommodation.
  • If you don’t require a doctor’s notes for ordinary illnesses, like the flu, then you can’t impose such a requirement on people with disabilities. Conversely it is OK to require a doctor’s note for all absences of three days or longer so long as it applies to all
  • When you are doing performance reviews based on productivity, don’t include the period when an employee is on disability leave of absence.
  • Leaves of absence that are open-ended or provide no return date remain unreasonable.
  • Policies that require an employee to be “100% healed” before being returned to work probably violate the Americans with Disabilities Act and some state disability discrimination laws.
  • Always participate in an interactive discussion about leaves of absence and reasonable accommodations upon return to work.

Questions? I’m always happy to consult. Please contact Judy Pearce at 650.518.0327 or by email to judypearce@hrlegalresults.

What’s next for HR – The Spanish Inquisition?

A recent appellate court held an HR director personally liable for her actions under the FMLA. Showing again that courts are oblivious to how difficult it is to interpret the FMLA in real life. Could jail time be the next punishment when company decisions are disputed?

This is a completely unreasonable punishment. In reality, even employment lawyers, when asked to divine how to interpret the FMLA, admit they usually ask a colleague for a second opinion before rendering advice to HR professionals!