Each week, we post a thought-provoking question for your consideration.  Here’s our last question, along with your answers . . .

A manager named Bob shows up more than two hours late for work.  Bob is normally a responsible, quiet individual.  Today, however, he acts “obscenely happy, wearing make-up, avoiding eye contact, continuously rubbing his legs and touching everyone.”  He also does a “crazy monkey arm dance” and then “twirls and talks gibberish, flying around in the office in a hyper state.”  Then he leaves.  What do you do?

a.  Fire him for inappropriate workplace behavior (4%)
b.  Do a crazy monkey arm dance in his honor until he returns (4%)
c.  Drug test him (9%)
d.  Give him a chance to explain his behavior (74%)
e.  Call the police (9%)

The correct answer is “d”:  Give him a chance to explain his behavior.  

Sometimes the logical answer is the right answer.  When I was in private practice, I was surprised at how often I had to ask the seemingly obvious question:  “Did you give the employee a chance to explain?”  Too often, decision-makers want to jump to the conclusion (e.g., “Let’s fire him right now!) without getting all the facts.

In this particular case, the decision-maker was advised to ask that simple question.  He was glad he did.  Unbeknownst to him, “Bob” was suffering from cancer and had just started a new medication.  Unfortunately, the medication had a side effect that resulted in the out-of-character behavior.  The story has a happy ending:  the medication was adjusted and Bob quickly returned to his “responsible, quiet” self.

Our viewers are now batting a healthy .611 (11 right, 7 wrong) on our weekly questions.  The next one will be coming your way soon.

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Each week, we post a thought-provoking question for your consideration.  Here’s our last question, along with your answers . . .

In what ways should temporary employees be treated differently from regular full-time employees?

a.  They must be segregated in a separate room with poor ventilation and no windows, never invited to staff meetings and generally shunned by the rest of the employee population (4%)
b.  The key is to keep the staffing company as the primary employer by allowing it to interview, hire, set pay rates and benefits, evaluate performance, provide counseling/coaching and terminate (79%)
c.  They should be treated no differently to avoid claims of discrimination (18%)

Congrats — you got it right.  The correct answer is indeed “b.”  Your best bet is to let the staffing company do what you pay it for:  interviewing, hiring, evaluating, coaching and disciplining employees.

Our viewers are now batting a respectable .588 (10 right, 7 wrong) on our weekly questions.  Thanks for your participation!

Each week, we post a thought-provoking question for your consideration. Here’s last week’s question, along with your answers . . .

Are there limits to the length of time a temporary employee can work at an assignment?

a.  Yes, the federal cap is nine months for non-professional employees and one year for professionals (22%)
b.  There is no federal limit (73%)
c.  If the employee is from any staffing company other than Manpower, the assignment must be limited to a maximum of zero days (5%)

Congrats — you got it half right.  The correct answers are “b” and “c.” 

Generally, there are no federal (or state) limits on assignment lengths.  In fact, in our experience, artificially instituting an assignment limit cap does little more than increase costs due to turnover and lost productivity.

As for answer “c,” Congress recently passed the All Staffing Companies Other Than Manpower Are No Good Act, setting a maximum ceiling on usage of staffing companies other than Manpower at a maximum of zero (0) days.  Penalties for non-compliance are severe.

Our viewers are now batting a respectable .563 (9 right, 7 wrong) on our weekly questions. The next one will be coming your way shortly.

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Each week, we post a thought-provoking question for your consideration.  Here’s last week’s question, along with your answers . . .

Which employee on TV’s The Office would be most likely to expose the company to serious liability?

a.  Jim, the office prankster who is dating a subordinate (13%)
b.  Toby, the hapless HR guy who never seems to enforce a single policy (34%)
c.  Dwight,  the bobble-headed sales guy who brings weapons and dead animals to work (11%)
d.  Michael, the manager who disdains everything about HR (43%)
e.  Andy, a violence-prone moron who’s dating/stalking a co-worker (9%)

Congrats — you got it right!  The correct answer is indeed Michael.

As a general matter, the higher up the wrongdoer is, the greater the potential liability can be.  This is demonstrated over and over in the employment law news items posted here on the Blawg. 

If you’ve ever seen The Office, you probably cringer every .03 seconds at Michael’s frequent employment law gaffes.  As the boss, he has the overall responsibility for the office and sets the tone.  If he’s not following the law, others probably won’t either. 

The other characters described above undoubtedly expose the company to potential liability in their own special ways, just not as much as their leader.  Your second choice, Toby, is probably the next most likely to expose the company to serious risk.  If the HR leader is weak at enforcing the law and company policies, liability potential increases signficantly.

Our advice:  The Office is truly the world’s greatest employment law training device.  We recommend instructing all your employees to watch each episode closely and then do the exact opposite of what the characters do.

Our viewers are now batting a respectable .533 (8 right, 7 wrong) on our weekly questions.  The next one will be coming your way shortly.

Thanks for your participation!

Each week, we post a thought-provoking question for your consideration.  Here’s last week’s question, along with your answers . . .

There have been quite a few significant employment law developments in the past few weeks. Which of the following are real?

1.  A new I-9 form was released (21%)
2.  Transsexual orientation is now protected by federal law (0%)
3.  The government is barred from issuing social security no-match letters (10%)
4.  Companies no longer have to employ union “salts” unless they have a genuine interest in employment (0%)
5.  The EEOC is now notifying companies of discrimination charges by email (0%)
6.  #1, #3 and #5 (14%)
7.  All of the above (14%)
8.  All of the above except #2 and #5 (41%)
9.  None of the above (0%)

The correct answer is #8.  A new I-9 form was recently released (employers must being using it by December 26).  The government is barred from sending out social security no-match letters until at least March 2007.  In addition, companies no longer have to hire union “salts” unless they have a ”genuine interest” in employment with the company.

As a recent case made clear, transsexual orientation is not a federally protected class.  Also, the EEOC has issued a press release warning employers to beware any emails purporting to be from the EEOC.  They may be part of a scam and shouldn’t be opened.

Additional details about each of the above may be found by clicking on the Employment Law News tab under “Tools & Tips.”

Our viewers are now batting a respectable .500 overall (7 right, 7 wrong) on our weekly questions.

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Each week, we post a thought-provoking question for your consideration.  Here’s last week’s question, along with your answers . . .

An employee complains of sexual harassment but begs you not to investigate out of fear that the alleged perpetrator will retaliate. What should you do?

a.  Don’t investigate (0%)

b.  Investigate right away (41%)

c.  Investigate after a “cooling off” period to avoid workplace violence (10%)

d.  Investigate, but promise the employee confidentiality to protect him/her (49%)

The correct answer is “b.”

Never succumb to an alleged harassment victim’s request not to conduct an investigation.  An investigation is required under the law and a failure to conduct one could expose the company to serious liability.  Of course, you want to ensure that the investigation is as discreet and fair as possible, but you must investigate. 

Also, you should never promise absolute confidentiality to the alleged victim.  You may need to reveal facts and identities during the course of the investigation or in litigation.

Our viewers are now batting .462 overall (6 right, 7 wrong) on our weekly questions.

Thanks for your participation!

Each week, we post a thought-provoking question for your consideration.  Here’s last week’s question, along with your answers . . .

How do you tell if an independent contractor is really an independent contractor (as opposed to an employee)?

a.  It depends on a confusing, ambiguous multi-factor test dependent on behavioral control, financial control and the parties’ overall relationship that differs in workers’ compensation, tax and other contexts (44%)

b.  It is the employer’s option to choose either status, depending on which is more advantageous from a tax perspective (2%)

c.  It is the employee’s option to choose (4%)

d.  Under the newly passed Contractor Clarification Act (CCA), a person can be an independent contractor only if s/he (1) is separately incorporated, (2) provides services to other companies and (3) works in a recognized “independent profession” as defined under the law (50%)   

The correct answer is “a.”  Unfortunately, there’s no such thing as the “Contractor Clarification Act.”

The test for independent contractor status is confusing and is different in workers’ comp, tax and other contexts.  Indeed, the IRS test used to be called the “Twenty Factor Test.”  Not long ago, it was “shortened” to the “Four Factor Test” each of which, unfortunately, contains five criteria each.

Generally speaking, all of the tests come down to whether the company controls the person or whether s/he is truly an independent agent serving more than one company.  In our experience, true independent contractors are a rare breed.  If you have financial and behavioral control over a person, s/he is probably an employee and not an independent contractor.

Our viewers are now batting .500 overall (6 right, 6 wrong) on our weekly questions.

The next one will be coming your way soon.  Thanks for your participation!

Each week, we post a thought-provoking question for your consideration.  Here’s last week’s question . . .

Can I terminate an employee for harassment of another employee if the conduct was off-duty, not related to a company event and off the company’s premises?

a.  No (25%)

b.  Yes (24%)

c.  Yes, if the harasser was a supervisor or the conduct spilled over into the workplace (49%)

d.  Yes, if the conduct involved physical touching (2%)   

The correct answer is “c.” 

I once took an online harassment training course that asked this very question.  I kept flunking because it had “a” as the correct answer. 

“A” is not the correct answer because (1) it’s wrong under the law and (2) sends a terrible message to employees (i.e., “Hey, man, next time we’re out with our co-workers – anything goes!”).

Generally, if either the harassing employee is a supervisor or the conduct spills over into the workplace, off-duty conduct may constitute sex harassment.  Physical touching is not required.

Our viewers are now batting a respectable .545 (6 right, 5 wrong) on our weekly questions.

The next one will be coming your way soon.  Thanks for your participation!

Each week, we post a thought-provoking question for your consideration. Here’s last week’s . . .

Diversity training improves diversity.

a. True (27%)
b. False (73%)

The correct answer is “False.” A recent study by Harvard and others concluded that diversity training alone has virtually no impact on workplace diversity.

So, what does help diversity? The study pointed to four primary mechanisms that have a positive impact: (1) accountability at the top; (2) mentorships; (3) creating a diversity point person or task force; and (4) recruiting frm a wide variety of sources (e.g., minority colleges).

Diversity is far more than a feel-good program. It’s an absolute business necessity. Companies that start taking steps to build a diverse workforce will be ahead of the pack as the war for talent continues to intensify.

Our viewers are now batting a respectable .500 (5 right, 5 wrong) on our weekly questions.

The next one will be coming your way soon. Thanks for your participation!

Each week, we post a thought-provoking question for your consideration. Here’s last week’s question . . .

An employee comes into your office at 4:58 on a Friday afternoon and informs you that he suffers from multiple medical conditions, including “work-induced narcolepsy,” “spontaneous combustion syndrome” and “episodic cubicle-confinement hyper-grumpiness.” He demands several accommodations, including: (1) a portable I.V. hooked up to an espresso machine; (2) a fire extinguisher mounted to his head; (3) three-and-a-half weeks off each month; and (4) your office. If you have time to make only one call, to whom should it be?

a. The EEOC (15%)
b. A lawyer who specializes in the ADA (39%)
c. The DOL’s new Disability Discrimination Prevention Hotline (21%)
d. The Job Accommodation Network (12%)
e. The employee’s physician (10%)
f. The employee’s spouse to see if he’s making all this up (3%)

The correct answer is “d”: the Job Accommodation Network.

JAN is a service dedicated to assisting employers who face difficult accommodation decisions. To contact JAN, click on the link (jan.wvu.edu) under the “Other Resources” section of the blawg or call 800-526-7234.

We’ve always found JAN to be extremely helpful. In fact, one EEOC official that he automatically presumes an employee has acted in good faith if it consulted with JAN.

The best part? JAN is free. In our experience, $0 an hour is less than what most law firms charge.

We’re not surprised that JAN was selected as the correct answer by only 12% of our respondents (9% fewer than the fictitious Disability Discrimination Prevention Network). We’ve done dozens of seminars and not one person has ever given JAN as the correct answer to this question. JAN just may be the best-kept secret in the employment law universe.

Our viewers are now batting a respectable .444 (4 right, 5 wrong) on our weekly questions.

The next one will be coming your way soon. Thanks for your participation!