An Important Step in the ADAA: The Interactive Process

This post may be a bit "HR geeky", but supposedly I am the "HR technician." I am not really sure about that but if I save someone's fanny from a lawsuit I will be happy. (BTW, nothing I say on this post should be construed to be legal advice. I am NOT an attorney! If I were I would probably have a lot more money than I do. Assuming of course I was a good one.) I did however go and and listen to several attorneys from Freeman, Mathis & Gary in a law update they presented this morning. I paid close attention as they discussed the interactive process required in the ADA Amendments Act when someone is asking for a reasonable accommodation. They mentioned that they are finding this is an area many of their clients are not doing well, and I imagine if that is true for their clients it is probably more widespread.

The key point about the interactive process is that it needs to be truly interactive. A series of emails is probably not going to be sufficient. You need to have a conversation, preferably face-to-face. And because the HR representative holding this discussion is probably not really aware of the job being discussed you need to have someone who knows the job involved with the discussion as well. You need to look at job functions, the job description, and current medical documentation of the employee's condition. The current condition is important because time may have passed from the original situation and physical changes may have occurred (for better or worse.)

The second key point about the interactive process is that it needs to be well documented. You need to have:

• Dates and times communication is attempted.
• Dates and times conversations actually occured and who was involved.
• What options were considered and what was rejected and the reasons why those rejections were made.
• When the employee was notified of the decision and any ensuing discussions that took place.

Once you have done all of that you are not done. The law allows the employee to appeal that decision and to ask you to reconsider your decision and to explore other options. Again this needs to be interactive. You have to show that you were listening and considering. Off-handed rejections or refusal to participate in the interactive process will most likely land you in court.

So for those of you who have not revised your process you need to take a look at your policy, your procedures, and your documentation processes to make sure you are prepared to handle the new demands of the interactive process. This law makes it much easier for people to claim a disability. So good preparatin is important. Good luck.

Top 5 HR Mistakes That Small Businesses Make

I am giving a presentation today to a small business association. As all of you know, HR mistakes for any company can be disruptive or even destructive, regardless of the size of the company. For small companies HR mistakes can be amplified and have a significant effect on the potential survival of the company. As I was preparing for the presentation I thought this would make a good blog post as well. So here goes.

1. Not Hiring the Right Person. Many small business owners hire someone just because they know them, they are a family member or they feel sorry for them. They do not have a clear definition of the job skills needed for the job or if the individual possess those skills. And because they often know the person, or think they know them, they do not conduct a background check on them. Often them may miss a "skeleton in the closet" (click the phrase to see a meaning.)
2. Ignoring Government Regulations. Many small companies are mostly or totally unfamiliar with the majority of laws that govern the workplace. Given that most federal laws cover companies as small as 15 employees there are very few things that do not apply to them. They need knowledge, but they don't know it. (Which is why I am in the HR consulting business, btw.) Some choose to ignore regulations because they have had no trouble up to now. Well as the old AAMCO commercials used to say "You can pay me now or you can pay me later."
3. Misclassifying Employees. One of those laws that applies to almost all companies, regardless of size, is the Fair Labor Standards Act. Small business SCREWS THIS UP ALL THE TIME. I spend ALOT of time explaining that Salary does not equal Exempt and just because you call someone an independent contractor does not make them so.
4. Poor Documentation. Documentation in many companies is an afterthought. In many small businesses it is non-existant. The hiring process does not get documented correctly, as in incomplete I-9s. And discipline records are almost never there or are done after the fact. Terminations are generally not supported and often result in unemployment cases being lost or discrimination suits either lost or settled.
5. Not Rewarding Employees. Rewards are not always measured in $$$$. A good evaluation, training and communication are also rewards. In these recessionary times many small companies have taken the tack that since they cannot afford to give any raises there is no need to do a performance evaluation. In reality now is the most important time to do them. People who are afraid that they might lose their job at any time would like to know from their boss that they are doing a good job. Employees are feeling under-appreciated these days and as a result you read figures as high as 1 in every 2 employees is considering changing jobs in the next recovery. In a small company that kind of loss would be devastating.

Those are the Top 5 Mistakes that I will talk about. But there is one other thing I will tell my audience. They need to be vigilent. There are 14 or more pieces of legislation on the federal level, and who knows what is happening on the state level, that will affect business, small and large, in the employment and labor arena. All of them could have a potentially detrimental effect. To avoid this, and to have input in the legislative process, active involvement is needed.

So there you go. I would like your feedback so I can fine tune this presentation for future opportunities. Tell me what you think.

Super Bowl Edition of the Carnival of HR

The Carnival of HR, the Super Bowl edition is posted over at Steve Boese's HR Technology. This edition has some of the best HR blog posts from the last two weeks. The topics include professional development, personal development, leadership, unhappy workers, turning around your HR department, profit center development and much, much more. So improve your HR reading by taking a look at this Super Bowl edition.

On a side note I am happy to say that the Fistful of Talent blog rankings came out today and HR Observations was tied for 7th out of 160 blogs considered. We are proud of this ranking and proud to be among this fine group of bloggers. Check out the entire list at Fistful of Talent.

OOPS Can't Ask That: The Impact of GINA At Work

When the Genetic Information Nondiscrimination Act (GINA), which went into effect last November, was first passed many HR types scratched their heads and said that they thought it was not really anything that would have day to day application to them. Indeed I was one of them. However, an article that appeared in both the print and online versions of the Wall Street Journal on February 2, 2010 pointed out some of the impact that GINA is having in the workplace. The article, written by Cari Tuna and entitled Wellness Efforts Face Hurdle, points out that company wellness programs may run afoul of the new law. Tuna, writes that many companies, in trying to improve their bottom-line, try to get workers to participate in wellness programs. Often these wellness programs start off with detailed health questionnaires that may include family historys. To increase participation a company may offer a cash incentive or an insurance premium reduction. A WIN-WIN for everyone you would think. The employee gets some cash and gets exposed to a wellness program that may improve their health or prepares them for future issues. The company gets a win by having healthier employees and thus reducing their costs in insurance and lost productivity due to ailing employees.

Unfortunately GINA takes the WIN out of that situation. According to a very fine publication of  Seyfarth Shaw, entitled GINA Restricts Acquisition and Use of Genetic Information by Employers and Group Health Plans, these actions fly in the face of the law. According to the article "...under the new regulations, a plan may not offer participants a different deductible, premium or contribution amount in return for completing a health risk assessment or participating in a wellness program that collects genetic information." However, the article also points out "...the regulations make it clear that a plan may offer a reward for completing an HRA (after and unrelated to enrollment) that does not ask about family medical history or genetic tests or services received by the individual or the individual’s family. The health plan may also request that the individual complete an HRA that inquires about family medical history and/or individual genetic test results, provided that completion of the HRA is wholly voluntary and is not tied to any financial incentive or disincentive."  So the result of this is that if you are currently using health risk assessments you need to familiarize yourself with this law.

The law also controls how health insurance companies deal with this information. Insurers are prohibited from conditioning "the availability of a disease management program or other benefits on an individual’s answers to HRA questions about individual or family medical history."  The article suggests that all employers review their agreements with their insurers to make certain they are in compliance with GINA. Failure to do so may result in HIPAA violations.

The Seyfarth Shaw article also points out steps that employers need to take to insure they are in compliance. These include: "...omitting genetic information from post-offer, pre-employment health history examinations and/or questionnaires; updating policies to prohibit discrimination based on genetic information; adding claims of “genetic discrimination” to waivers and releases where appropriate; and segregating lawfully-acquired genetic information from personnel files. Employers also must post information regarding GINA’s protections, which is contained in EEOC’s revised “Equal Employment Opportunity is the Law” poster..."  If you want more information follow the link provided above.

Tuna's article, the online version, reports that there have been some situations in which an employer has been accused of misusing genetic information and it cost them, to the tune of $2.2 million. They were investigated by the EEOC.

Because this law is still pretty new many people are not yet sure what they should do. The EEOC has promised that they will publish guidance for employers later this year and the Department of Labor is working on guidance for insurers. Part of the "great unknown" is in the area of "casual" disclosure. So stay tuned. In the meantime follow the advice in Seyfarth Shaw's article.

The Value of Twitter: Putting Some RICE in Your Social Media Diet

I attended a networking last evening. It was people from various walks of business that had one thing in common, the host of the event. We are people that she has met through various methods, but I was one exception. I was the only one that she had met through Twitter. We don't quite remember who followed who first, but upon looking at her Twitter page and her contact information I sent her a message and asked for a face-to-face over a cup of coffee. She assented and we had a very pleasant discussion. She is a successful business person and business advisor that I felt fortunate to be able to connect with.

Well as the networking began I was introduced several times as the person she had met through Twitter, so I spent some time explaining to people how that had occurred and of course fielded a number of questions on how and why I thought Twitter was valuable. Thinking back over what I told people I have developed an acronym that to me best describes the value of Twitter. RICE

• R stands for Resources. If I need a reference, a referral to someone, a tool, a place to meet, a restaurant, etc. there are people out there that will be able to give me that resource. I have discovered a number of great blogs to read as a result and have had a number of referalls made to me as well.
• I stands for Information. Search engines, mostly Google and Yahoo and now Bing, were where I usually went to find information on human resources topics. Today I include Twitter, and often that is the first place I go. If you ask for something you get answers from people who have already filtered the monumental amount of information that is on the Internet. So rather than having to sort through those things myself why not use what others have already filtered.
• C stands for Contacts. I have "meet" so many great professionals in HR and employment law through the "follow" function on Twitter. Many of these people I feel I come to know well enough to call them "friend", even though we have never met in person. I have contacts around the country. I have had the opportunity to meet some of them as they travel to Atlanta or as I travel to their locale. But I have also meet a number of people here in the Atlanta area from fields that I would have not generally sought out. Tweet Ups get organized and you actually have an opportunity to go meet in person at a local restaurant and do some "old-time" networking. It is a great way to get out of the usual circle of contacts that you may have developed through the years. Business and friendships can, and do, develop.
• E stands for Energy. As you read tweets, or connect with people, there is a palpable energy that you pick up. People get excited about their topics, their lives, and the livelihoods and  that ends up making you excited too. You can draw on that energy to renew yourself during the day. You can pick up this energy and transmit yours to others.

There are certainly some downsides to Twitter, but that depends on what you try to get out of it. Some people use it only to follow a celebrity with whom they are obsessed. Some use it soley as a display of their vanity and only transmit but don't interact. Some people get so caught up in it that it becomes a black hole that sucks their time away. You do have to be careful about that. But the nice thing about Twitter is you can do as little or as much as you want to do. You only follow who you want and only allow people to follow you as you want. You control what you say and how often you say it and even to whom. Not everything has to be public and you can even be anonymous, though to me that lessons the value.

But I think it is great tool for HR professionals to use to broaden your horizens. So put a bit of RICE in your social media diet and become a Twitter user today.

Human Resources Should Be About Improving What Works

In HR we quite often get caught up in discussions about the disciplinary process. What to do with poor or marginal performers? Sometimes we even discuss firing "adequate" performers, see The HR Capitalist's discussion entitled More than Jack Welch: Should We Fire Everyone Who's Doing an "Adequate" Job? Typically in HR we advise supervisors to counsel, warn and then terminate because the employees have not abided by the rules or are not producing at the level we expect or require. We sit down and tell them what they are doing wrong and then tell them to correct it. Often they don't and so we terminate their employment. Sometimes we work on a PIP, a performance improvement plan, and detail the steps we want to see change. Most often these things do not work and termination results.

Dick Grote, consultant and author of Discipline Without Punishment, has advocated for an approach which he says will turn poor performers into superior performers. He uses a "responsibility" based system with the employee himself "owning" his improvement or lack there of, as the case may be.

Two things I have just read made me think along a different line of thought about discipline and the role of HR. Neither reading dealt with HR or discipline. Rather they dealt with either personal or organization improvement. Alan Weiss, in Thrive! talks about personal growth and development, but he makes the statement that "We all grow by exploiting strengths, not by correcting weakness..." (pg. 125). In  the February 2010 issue of Fast Company Chip Heath and Dan Heath publish an adaption of their book Switch, called Find A Bright Spot and Clone It.  They discuss successfully dealing with change by focusing not on a problem but by focusing on what works. They state that we have a tendency to focus on a problem, whether it is in our business life or our personal life. We don't look at the A's and B's on our report card, but instead focus on the D's and F's. They state that "We need to ask ourselves a question that sounds simple but is, in fact, deeply unnatural: What's working and how can we do more of it?"

I think these two approaches are a good way to think of improving employee performance. Focus on what they do well, what is working about them, and try to improve that. The Heaths do point out that "knowledge does not change behavior." And as Weiss states "...the strengths need to be identified, codified, and replicated. Unless we know why we're good, it's very hard to replicate the behavior." Thus a counseling session with a "problem" employee must go beyond pointing out the failing behavior. It must point out to the employee what they do well and focus on getting more of that behavior. And Grote's program points out that the employee must accept the personal responsibility for that improvement.

Will it work? Does it work? Probably, but like anything else it will require change and work on behalf of the organization and management and HR. Are you willing to do it? Is there a payoff? The Heaths state "If you are a manager, ask yourself, What is the ratio of the time you spend on solving problems versus scaling successes?" The answer to that may come down to the 80/20 rule. So the reversal of that may end up paying big dividends, such as improved performance, improved morale, improved retention, and lowered costs.

Just my $0.02 worth. Who is working this successfully? Anyone? Bueller...

Resistance to Change: Does It Doom Us to Failure?

I am reading a book by Jared Diamond, called Collapse: How Societies Choose to Fail or Succeed. I find it to be a stimulating read, and if you click on the link you will find it has been reviewed 444 or more times, so others have found it stimulating as well. I am not really going to get into the nature of the book, but I did want to talk about the resistance to change. Diamond shows that a society's resistance to change, its unwillingness to change, can lead to its downfall. It is not a sole determiner. The use or misuse of resources, climate change, and competitors also contribute societies disappearing. As I read this I was struck at how well this can be applied to companies and business as well.

We have seen an number of companies go out of business. They have been overwhelmed by a competitor, or they have borrowed too much money (the equivalent of cutting down all their trees), or the climate has changed (recession as ice age?) and they have not adapted. But the other big factor is resistance to change. Diamond, on page 275, makes the following comment ".... the values to which people cling most stubbornly under inappropriate conditions are those values that were previously the source of their greatest triumphs over adversity." Most of us can think of examples of companies that, as things change around them, they redouble their efforts to keep doing business the same way they have been rather than adapt to the new environment. A software company I worked for did something along those lines. Selling a mainframe based software, business started to suffer as midrange software became available. Rather than adapt the management tried to keep competitors from appearing and redoubled the effort to sell mainframe software. Unfortunately, clinging to this technology and ways only led to the demise of the company and today it is only a distant memory.

So Jared Diamond's warning to societies can also apply to companies as well. Is your business adapting? Or are you too resistant to change? Is your management team clinging to what had been successful or moving to what will be successful? How often do you hear "Well that is the way we have always done it"?

I think it is interesting that humans can, at the same time, have resiliancy as a hallmark and also resistance to change as a hallmark. Reading Diamond's discussions of societies long past shows that we are not so different than our ancestors. We do many of the same things, we just may do them faster and on a larger scale. What is the old saying "Those whom ignore history are bound to repeat it?"

So I recommend Collapse as a stimulating read for HR professionals for the business lessons and societal lessons that can be learned. You want to be proactive and knowledgeable then grab yourself a copy.

The HR Carnival: Dead of Winter Edition

Lisa Rosendahl, who writes Simply Lisa, lives where it is very cold. As a result snow, ice and winter sports are at the forefront in her thoughts. Using the theme of winter sports she has put together a very good Carnival of HR using hand warmers, luges, snowshoes and more to display a very large and well done collection of blog posts. Leadership, terminations, HR budgets, social media, career transitions, jobs and more can be found in this Mid-winter edition. So check it out by visiting Simply Lisa's Carnival of HR.

"Victims" Make Good Union Targets

I am currently reading a book by my favorite consulting guru Alan Weiss of Summit Consulting. The book is called Thrive!. It deals with taking control of your life and thriving as a result. I will write more on this later when I do a book review. But one of the things he said in one chapter dealt with the victimhood. Some people embrace being a victim. In HR we all have known someone like this. "Stuff" always happens to them. They are never at fault. Someone was out to get them; the boss did not understand them; someone stabbed them in the back, etc. There is always a "THEM."

This got me to thinking that unions thrive on the culture of victimhood. For a union to gain a toehold in a business they need to find, or need to create, a victim inside the workplace. And of course the "them" is always management. As a "victim" worker, management could always be paying you more, or offering you better benefits, or more security. And unions are more than willing to point out your "victim" status. Unfortunately today there is plenty of fodder for the union propaganda machines. Companies have been laying off, cutting wages, and regrettably taking advantage of some of their workers.

So how do you keep your company from feeding the propaganda machine? Here are some suggestions:

• Communication- the more employees know about the company situation the less the rumor mill works
• Fairness- I am all for people making as much money as they can, but if you are furloughing your teachers you don't give your superindendent a $20,000 increase. You don't give your CEO a $1 million bonus when your are closing three plants. You get my point.
• More communication- listen to your workers. Enlist their input on what can be done.
• More Fairness- spread the pain to minimize the pain. There may not be any raises this year if we can avoid laying anyone off.
• Don't do stupid things- Don't fire someone for a bogus reason. Be honest.
• Don't let stupid things be done to you- Don't let employees take advantage of a situation. It undermines everyone else's morale.

I am sure there are many more, so suggest some. It just dawned on me that this list could apply to employee retention too. Makes sense, not all "victims" are willing to stick around.

The Great Sex Divide in Unemployment and Retraining

The current unemployment situation, 10% or more of the population being unemployed, has made apparent a divide between genders. The Department of Labor for Georgia reports that 58% of the people collecting unemployment are men. Part of the reason for this is that much of the job loss has occurred in manufacturing and construction where typically you will have a higher proportion of men. These are jobs which have become obsolete, so we may never see employment numbers again to reemploy all these men. People who have been in these positions need to be trained.

And that is where the great sex divide becomes apparent. According to Michael Thurmond, Commissioner of the Georgia Department of Labor, men only make up 37% of the people in the labor department's training programs, only 37% of the students in the technical college programs and only 43% of the student populations at the two year and four year college and universities in the state. I think I would be safe in extrapolating those number to the nation as a whole.

So why do we have this great divide in the sexes? Here is my take:

• Men view themselves as being more self-reliant. "Cowboy" mentality. We don't need to ask for directions, we don't need to read directions, and we don't need to go to the doctor. Therefore, why should I need any help in finding a job.
• Women generally have a greater "support" group system in their lifes and as a result are more accepting of receiving help and are more likely to seek it out.
• Men tend to be more stubborn, or "pig-headed" if you will. I think men are more subject to the "inertia" of doing nothing. Hard to get back to doing something once you have been doing nothing.

I don't have numbers on this, but I believe age is a big factor in this divide as well. I think "older" men may have a harder time. Older men have had more of their identities wrapped up in their work and have a harder time letting go of that. Working women have been multi-taskers probably the majority of their careers. Their ego is less tied up in what the career field is and thus accept training more easily.

Well I could play amateur psychologist for awhile, but I would rather ask you. Why is there such a divide between the sexes in unemployment and retraining?

Note: Inspiration for this post came from Henry Ungar's blog in the AJC entitled Wanted: Ideas to create more jobs in Georgia