One big mistake to avoid with disabled employees

by Michael Haberman on October 7, 2015 · 0 comments

Firing disabled employees will attract the attention of the EEOC

Firing disabled employees will attract the attention of the EEOC

The EEOC (Equal Employment Opportunity Commission) has been very active suing organizations for disability discrimination of late. In all three cases the employers made the same big mistake.


The EEOC has sued one grocery store and two hospitals for disability discrimination. In the case of the grocery store clerk she suffered a work related injury that severely limited her ability to lift items. The store initially reassigned her to another job performing light duty at the customer service desk. (My guess is what is happening here is that dreaded intersection of the ADA, Workers’ Comp and probably the FMLA.) After a period of time the store said she had exhausted her light duty time. They put her into unpaid time off and refused to continue the customer service job as a reasonable accommodation. Then they fired her.

In the first hospital case the employee was a disabled vet who had to have emergency surgery. He was scheduled to return at the beginning of October but asked for a two week extension as a reasonable accommodation. But the hospital had already hired a replacement 10 days earlier so….. then they fired him.

The second hospital had a nurse who suffered a seizure. Her doctor removed her from direct patient supervision. She asked for a transfer to an open position that did not involve direct patient care. As an alternative she asked for a leave of absence as a reasonable accommodation. The hospital denied both requests for accommodations. Then they fired her.

Recognizing the pattern here?

Fail to accommodate then fire

Previous case history has shown that the EEOC does not consider light duty, or transfer to an open position or an additional 10 days leave as unreasonable accommodations. Neither major job changes nor major amounts of time off were requested. Just the refusal to accommodate might have been enough to get these three organizations sued, but then they all fired the employee. That was the cardinal sin as far as the EEOC was concerned. As a result all three organizations were contacted and refused conciliation. The EEOC then filed suit against all three and the cases are waiting to be determined. We will see how they come out.

How to potentially avoid being sued

When you have an employee request an accommodation seriously consider that accommodation, not through your employer eyes, rather view them through the eyes of the EEOC to determine if the requests seem reasonable. Document that entire process and talk to the employee several times. Even if you don’t think the requests are reasonable don’t just automatically fire a disabled employee. Give them unpaid time off as an initial accommodation. Maybe they will recover. Maybe they will leave on their own accord. Maybe you will have to have further discussion. But if you fire them you are pointing a big neon arrow at yourself that says “Sue me.” Don’t make that mistake.


Is the Internet destroying the Outside Sales exemption?

by Michael Haberman on October 6, 2015 · 0 comments

Has the nature of your sales jobs changed?

Has the nature of your sales jobs changed?

With the tool of the Internet a lot of sales are conducted online. I know that I am solicited a lot by emails and phone calls. In the “old days” of sales a representative would come to you place of business,” knock” on your door and then make a pitch. These people were genuine outside sales reps. Today the knock on the door is an email. I express an interest in a product and I am connected to a demonstration online. Based on that demo I may then decide on a trial or even a purchase. At no point in that process did the sales representative ever visit my facility. Without that visit does this person qualify for the outside sales exemption?

What does it take to be qualified as an outside sales rep?

First, “exemption” means that the sales rep is exempt from being paid overtime and additionally exempt from having to be paid a minimum salary. According to USDOL Fact Sheet #17F to be considered an outside sales representative the employee must meet the following standard:

  • The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and
  • The employee must be customarily and regularly engaged away from the employer’s place or places of business.
  • “Sales” includes any sale, exchange, contract to sell, consignment for sales, shipment for sale, or other disposition. It includes the transfer of title to tangible property, and in certain cases, of tangible and valuable evidences of intangible property.

There is one clear statement that deals with my point. The Fact Sheet specifically says “Outside sales does not include sales made by mail, telephone or the Internet unless such contact is used merely as an adjunct to personal calls.” (My emphasis)

Regardless of location

This provision holds even if the sales representative is not working in the company location. Many sales reps operate out of satellite offices or even out of their homes. If they are not out making calls “customarily and regularly” then they are not going to qualify as outside sales representatives they are just going to be teleworkers. The Fact Sheet clearly says “Any fixed site, whether home or office, used by a salesperson as a headquarters or for telephonic solicitation of sales is considered one of the employer’s places of business, even though the employer is not in any formal sense the owner or tenant of the property.”

Therefore if the nature of your sales jobs has changed due to the Internet you may now be responsible for paying overtime to your sales reps and also guaranteeing a minimum wage because the job needs to be reclassified as nonexempt.

If you have jobs that you suspect may have changed it might be prudent for you to contact an employment attorney and verify the actual classification of that job as either exempt or nonexempt.

Photo credit: stockimages


Storytelling as the ninth HR competency

by Michael Haberman on October 5, 2015 · 0 comments

StoryTelling[1]I am preparing a presentation on culture. As I have done my research it has become apparent that “storytelling” as a way of connecting new employees to the history of the culture is vitally important. In the SHRM Learning System there are eight competencies that students of HR are taught. Two of these deal with culture and communication. I think a key skill related to these two competencies is the skill of storytelling.

Tell a story

In 2011 I read a blog post that had nothing to do with human resources. It was called The One Essential Key to Developing Your Social Media Influence. The author, Joshua Leatherman, says “The greatest predictor of social media success is also the most challenging to master; it is the ability to tell a story well in very few words.” He went on to say:

“Those who succeed in social media, those who have the ability to influence the behavior of others, are master storytellers.  They have learned how to graft powerful words together that pique emotion, stimulate a need, elicit a vision, and produce engagement.”

A bell went off in my head and I thought HR! Piquing an emotion, stimulating a need, eliciting a vision and producing engagement are wonderful ways to attract and attach and retain workers. Tell them a compelling story to attract them, to help satisfy a need, to get them to see what the organization is about and to get them engaged in their work. This is what helps communicate the culture. It gets people more quickly engaged to the organization. After all who doesn’t enjoy a good story? Since more and more of us use social media I thought his topic dovetailed quite well with HR.

Developing the skill

In 2012 I came across a book by Stephen Denning called The Leader’s Guide to Storytelling. The subtitle is mastering the art and discipline of business narrative. Denning’s contention is that storytelling should be a key competency for ALL business leaders. Storytelling has been around for as long as humans have been able to speak. It was how information and learning was passed down from generation to generation before writing. However, as we came into the age of reason, especially in the business world, we quit using storytelling. We let cold hard facts speak.

Denning says: “The choice for leaders in business and organizations is not whether to be involved in storytelling….but whether to use storytelling unwittingly and clumsily, or intelligently and skillfully. Management fads may come and go, but storytelling is fundamental to all nations, societies, and cultures and has been so since time immemorial.”

The question then becomes “how do you develop good storytelling skills?”

Possible answers

I am open for answers on this question of how you develop good storytelling skills, but here are some of my suggestions:

  • Read good stories. Fiction, non-fiction, blogs, articles, news. They all involve the ability to tell a story. Did something grab your attention? What was it? Why did you find it compelling?
  • If you have an opportunity, take a creative writing class, whether you think you can write or not. You will be able to do a bit better when you are done.
  • Take a journalism class, in fact I think this should be required in all HR degree programs.
  • Take a class on being a stand-up comedian. All comedians are storytellers. One of my favorite was an old Borscht Belt comedian named Myron Cohen. He was a favorite of Johnny Carson. I am not Jewish, so I did not really relate to the stories he told but he told them so well I would still laugh. He was a wonderful storyteller.

I am not suggesting you give up your livelihood to become a reporter or comedian, I am suggesting the skills that you might acquire would serve you well in being able to craft a good narrative. Think about how you can incorporate a story into your talent acquisition and your employee communication. Perhaps you will find it pays major dividends and you just may have some fun with it too. Make storytelling the ninth HR competency.


Are "hot desks" just a matter of musical chairs or a wave of the future?

Are “hot desks” just a matter of musical chairs or a wave of the future?

The workforce of the future is predicted to be a mobile one, capable of working from any location at any time because they carry their computing power with them. We are already seeing this occur and it causing some disruption in the management of physical locations. Companies are realizing they don’t need all the office real estate they currently possess. Here is how one company is handling less demand for office space.

Hot space

With a telecommuting and mobile workforce it is a waste of space to have an office or even a cube for every employee. Why have a physical location, available at all times, using infrastructure resources when the employee assigned to that space is only there a portion of the time? One such facility has solved the problem by only having 1000 desks for 2500 employees. The concept is called “hot-desking”  or “hoteling.”

In a building called the Edge, with the main tenant being Deloitte, there is only room enough to handle 1000 people at a time. Who has a desk and when is handled by an app that knows what your schedule is and when you arrive. It then assigns you a desk based on the work you are doing, and your preferences. It knows if you want a standing desk or a sitting desk; whether you need a meeting room or single space, and how you like your light and temperature.

Not everyone enamored

Despite the obvious cost savings to companies that might utilize such a concept, not everyone is enamored with the idea. At Slate, Alison Griswold (quoted in Mother Nature Network) says “The practical goal of hot desking is to distribute too few desks among too many people, in a sort of never-ending office musical chairs. …at least based on the description of things in the Edge, sounds more like the layout of a technologically advanced dystopian high school than a highly efficient consulting firm.”

I would imagine there would be some naysayers as well based on the disruptive effect this type of office organization might have on the culture. Indeed to take an office that has no little telecommuting, with assigned offices and transform this to this concept would be extremely disruptive. It would likely cause a great deal of disenchantment and result in turnover, after all people get territorial about their workspaces.

 Time to embrace

However, with the changes that are coming in the nature of the workforce with more teleworking and more “on demand” workers the need for physical workspace is going to become greatly reduced. Combine that with the need for organizations to reduce their carbon footprint I think we will see more and more organizations giving serious consideration to the concept of “hot desking.”

Are any of you already using such a concept?


Do you use technology to avoid human interaction?

by Michael Haberman October 1, 2015

Tweet Technology is a tool that can be used to enhance our ability to communicate with our fellow employees. Unfortunately we often use it as a crutch to avoid having to actually interact with others. How many ways can we send a message that lets us actually avoid human contact? What is appropriate? My friend […]

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Common sense could save you time, money and a lawsuit

by Michael Haberman September 30, 2015

Tweet The old saying is that common sense isn’t so common seems to hold true in many employment discrimination lawsuits. Wouldn’t seem to be common sense to allow an employee to periodically sit for short periods during the day as a reasonable accommodation? Apparently one company didn’t think so. Fired the employee rather than let […]

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Remembering the words “job related” can save time, money and heartache

by Michael Haberman September 29, 2015

Tweet The history of HR is rife with decisions based on whether a question, or a skill or a test is “job related.” Case after case has shown that having a job requirement that is not actually job related may have an adverse impact on protected classes and thus would not be considered legal. Strength […]

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Attention Federal Contractors! You have a new poster.

by Michael Haberman September 28, 2015

Tweet If you are a Federal contractor there is a new EEO poster you must display. It is a supplement to the EEO “It’s the Law” poster you have already had to display. As of September 9, 2015 you must display the poster supplement. The important issue added to this deals with pay secrecy. The […]

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Future Friday: Google Glass is still alive

by Michael Haberman September 25, 2015

Tweet As I mentioned earlier in the week I attended Dreamforce 2015. There I had my first personal encounter with Google Glass. The way it was being used in the booth I visited was to control aspects of the booth. 3D printing They demonstrated the control of a 3D printer by use of the Google […]

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Screwing up your I-9s is serious business!

by Michael Haberman September 24, 2015

Tweet I constantly come across companies who pay scant attention to the immigration process of filling out an I-9 form. They don’t pay attention to the timing, the accuracy, or they don’t even do it at all. Making these mistakes can cost you a great deal of money. 600,000 reasons to do it right A […]

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