Welcome to the Manpower Employment Blawg

FREE Webinar February 24

Mark Toth — Tue, 09 Feb 2010 07:13:46 +0000

Click here to register for our next FREE webinar, February 24 from noon to 1:00 p.m. EST, 11:oo a.m. to noon CST.

The title: What’s New and What’s Next in Employment Law for 2010.

It’s a new year and plenty of interesting things are happening in the world of employment law. I’ll update you on all the latest developments and then give you a glimpse of what may be coming next. Along the way, I’ll give you plenty of tips and tools to help you stay out of legal hot water. As always, we’ll conclude with our official “Smartest Person in the Audience Contest” in which attendees will compete for valuable prizes.

Our last webinar had 1,531 attendees — we’re shooting for at least 1,531,000 on this one. Hope you can join us!

Lessons From the Super Bowl

Mark Toth — Mon, 08 Feb 2010 12:38:31 +0000

There were lots of valuable employment law, leadership and HR lessons that could be gleaned from last night’s Super Bowl. Here are just a few:

Beware Casual Day

As the CareerBuilder ad last night so aptly (or inaptly, depending on your perspective) pointed out, companies should set clear guidelines for what is — and isn’t — acceptable on casual day. The result if you don’t: anarchy (and, quite possibly, harassment lawsuits).

Don’t Get Fooled By Age

Reviews of The Who’s halftime performance were decidedly mixed, with most of the negative comments focusing on their advanced age. I for one am glad that CBS gave the 60-ish rockers the chance for one last hurrah. There’s a valuable lesson there for employers: engage in age-ism and you might miss out on some great performances.

On the other hand, CBS did catch some flak for the oddly high number of ads that featured older folks (Betty White, Abe Vigoda and even Tim Tebow’s mom) getting viciously tackled by people years their junior. OK, so it was only two ads, but still . . .

Oprah, Dave and Jay

One of the most positively reviewed ads was a spot in which Oprah played peacemaker by inviting bitter late-night rivals David Letterman and Jay Leno to the same Super Bowl party. While there was some sniping by Dave, the fact that the two of them agreed to even sit on the same couch created more buzz than most of the rest of the ads combined.

The lesson? Blessed are the peacemakers.

The Best Team Usually Wins

Peyton Manning is indisputably one of the greatest quarterbacks in the history of the game. But, as last night’s game-turning fourth-quarter interception demonstrated, even the best leaders can falter sometimes. If the rest of the team doesn’t step up in those critical moments, you’re cooked.

Want to win? You need BOTH (1) the best talent and (2) the best team.

Communicate Carefully

According to a survey of those who watched last year’s Super Bowl, 67% recalled their favorite commercial while only 39% remembered who actually won the game. Other studies show that lots of companies who spent millions advertising during the game actually alienated the audience rather than creating positive feelings about their brand.

The lesson? When it comes to workplace communication, people (1) can be easily distracted, (2) may fixate on something other than your primary message, (3) may react negatively to messages that you thought would be 100% positive and/or (4) ignore you completely.

What’s the antidote? Plan your communications carefully — think before you speak (or hit “send”). Put yourself in your audience’s shoes and try to assess potential impacts from all possible angles. Try out important messages on others before you go “live.” And, if you mess things up, be humble enough to apologize and re-communicate (hopefully with a better message).

In case you missed any of the ads, you can view them here. If you come up with any valuable lessons that I missed, please leave a comment below.

Weekly Office Analysis & Contest

Mark Toth — Fri, 05 Feb 2010 16:45:02 +0000

In my humble opinion, NBC’s The Office is the world’s #1 employment law training aid. All you have to do is (1) watch it and (2) do the exact opposite of everything you see.

To help enhance your viewing experience, each week I provide a critique of the action from an employment lawyer’s perspective.

Last Night’s Episode: “Sabre.”

The Plot: Here’s NBC’s official description: “The employees adjust to the news that Dunder Mifflin has been bought out by a new company.”

My Analysis:

Issue: Unauthorized Opening of Mail
Description: Michael and others arguably violated federal law by opening a package that wasn’t addressed to them. Their efforts to cover up their deed by trying to reconstruct the package weren’t exactly successful.
Risk: $
Issue: Unauthorized Use of Company Property
Description: Among the items in the mistakenly opened package was a scanner. Michael and Dwight took turns scanning various toys from Michael’s desk, misusing company property and wasting company time.
Risk: $
Issue: Dangerous Workplace Practices
Description: Erin threw a pair of scissors at Michael. Also, Dwight placed a platter of “Scranton’s finest hot dogs” on the ground which could lead to germ infestation and thus employee sickness.
Risk: $$
Issue: Best Branch??
Description: According to whatever metrics Dunder Mifflin had in place prior to the merger, the Scranton branch had the best performance in the entire company. Whatever measurements were used should immediately be dumped.
Risk: $$$
Issue: Emotional Distress
Description: Andy and Erin wrote and sang a dreadful welcome song to the new management. Unfortunately — due to everyone in the office mispronouncing the name of the new company — none of it rhymed. Several employees were shown wincing in pain during the performance. In addition, Jim caused Pam obvious pain with a lame joke about their baby joining the “infantry.”
Risk: $$
Issue: Christian Slater Lies
Description: Sabre distributed a “welcome” video featuring Christian Slater. Mr. Slater made several misrepresentations (and nonsensical statements) during the video, including comparing working for Sabre to “eating a rainbow” (whatever that means). A company that is in the process of acquiring another organization must be exceedingly careful not to make statements that could be construed as promises/representations to new employees.
Risk: $$$
Issue: Breach of Contract/Change Mismanagement
Description: Sabre may also be exposed to contract liability by changing terms and conditions of employment without conducting adequate due diligence (e.g., reviewing employment agreements, benefit plans, etc.). A company representative did visit the branch to engage in limited due diligence two weeks earlier, but his efforts were laughable (literally). Basically, Sabre’s actions throughout the episode were a great example of how NOT to do change management.
Risk: $$$
Issue: Insubordination
Description: Michael exhibited a rather high degree of insubordinate conduct throughout the transition. Sabre should send a message by taking official disciplinary action (rather than merely issuing the vague/strange threats from Sabre’s rather scary CEO).
Risk: $$
Issue: Sexual Harassment
Description: As in prior weeks, Andy and Erin engaged in open (and quite pathetic) flirtatious/stalking conduct. It’s reasonably foreseeable that at some point one of them will cross the line and file a complaint against the other.
Risk: $$
Issue: Damage to Property
Description: One of Michael’s insubordinate acts was to toss his new Sabre water bottle out of his car window, breaking the windshield of another vehicle in the company parking lot.
Risk: $
Issue: Computer Filters
Description: While the employees were gathered in a conference room, a Sabre IT person installed Internet filters on their computers, blocking access to all social networking sites. While companies should take reasonable steps to protect their IT assets, blocking access to Facebook, Twitter, etc. is probably overkill (and could result in alienating/losing the bulk of the company’s most technologically savvy employees).
Risk: $$
Issue: Breach of Confidentiality/Defamation
Description: Michael revealed a number of arguably confidential pieces of information about Sabre and the merger to former Dunder Mifflin CFO David Wallace. Telling anything remotely confidential to Michael is never a good idea.
Risk: $$$
Issue: Aluminum Poisoning
Description: Based on the employees’ reactions after drinking out of the new Sabre water bottles, it appeared they all could soon be suffering from aluminum sickness. If the company failed to take appropriate steps to ensure the safety of the bottles prior to distribution, it could find itself in the midst of a class action.
Risk: $$$$
Issue: Various Other Inappropriate Comments/Actions
Description: Once again, virtually every employee said or did something inappropriate. At this point, virtually every employee could sue the company for something and win.
Risk: $$$$$$$$$

OFFICIAL “ARE YOU SMARTER THAN A LAWYER?” CONTEST: Anyone who leaves a comment below identifying an employment law issue that I missed will win a valuable prize. If you didn’t get a chance to see the episode, you can view it on NBC’s official web site here.

As always, thanks for your participation!

Mandatory Training Tonight

Mark Toth — Thu, 04 Feb 2010 15:36:01 +0000

You are hereby notified that you have a mandatory training session this evening. At 9/8c, you are required to tune in to your local NBC affiliate and watch The Office. Failure to do so could result in disciplinary action.

In my humble opinion, The Office is the world’s greatest employment law training aid. All you have to do is (1) watch it and (2) do the exact opposite of everything you see.

TONIGHT’S EPISODE. “Sabre.” Here’s NBC’s official description: “The employees adjust to the news that Dunder Mifflin has been bought out by a new company.”

OFFICIAL “ARE YOU SMARTER THAN A LAWYER?” CONTEST. Tune in tomorrow to see my detailed analysis of the episodes and exactly what I would tell Dunder Mifflin if I were its lawyer. Anyone who spots an employment law issue that I missed will be entitled to a valuable prize.

Enjoy!

Question of the Week

Mark Toth — Thu, 04 Feb 2010 09:00:53 +0000

Each week, we post a thought-provoking question for your consideration. Submit your answer, see what others think and then next week we’ll give you the correct answer.

Here’s this week’s question . . .

Following a batch of frivolous complaints against executives that resulted in several of them hating your guts because you conducted the investigations, you institute a policy calling for brief "reviews" rather than full-scale investigations whenever a complaint is filed against an executive. The next time a complaint is made against an executive, you conduct a brief review and find no evidence of wrongdoing. What's most likely to happen next?

Answer to Question of the Week

Mark Toth — Tue, 02 Feb 2010 06:10:30 +0000

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

Our handbook prohibits inflammatory or derogatory body art. Is our policy OK? Can I ask candidates if they have gang tattoos? Can I ask them to show them to me? If I recognize a gang tattoo on a candidate, can I refuse to hire him or her?

Here are your voting percentages (out of 285 total responses) . . .

a. You should pick the gang most closely aligned with your company’s vision (e.g., the Bloods or the Crips) and then hire only candidates from that gang to avoid conflict (1%).

b. You should refer to the policy, give examples of tattoos that would violate it and ask the candidate if s/he can comply. If the company discovers later that the candidate has inappropriate tattoos, s/he can be terminated either for violating the policy or for lying during the interview (62%).

c. Yes, yes, yes and yes (3%).

d. No, no, no and no, unless you want to face a discrimination charge (34%).

The correct answer is “b.” The safest course of action in situations such as these is simply to describe the policy, ask the candidate if s/he can comply and then address any violations later.

We are pleased that very few of you selected “a.” Also, just for the record, asking a candidate to undress is never a good idea.

Thanks for your participation! Our next Question of the Week will be coming your way soon.

February Employee Celebrations

Mark Toth — Mon, 01 Feb 2010 13:46:26 +0000

One of the best ways to avoid needless employment law disputes is to stay in touch with what your employees are thinking, feeling and doing. As part of our never-ending quest to keep you up-to-speed on the latest developments affecting your workplace, the following is our guide to some of the lesser-known holidays/celebrations your employees might be observing this month.

Just to make sure you’re paying attention, I included one made-up day on our list. The rest are very real. The first person to post a comment identifying the bogus day will win a valuable prize.

Return Shopping Carts to the Supermarket Month (1-28)
Hula in the Coola Day (1)
Hedgehog Day (2)
Liberace Day (4)
Wear Red Day (5)
Weatherperson’s Day (5)
World Nutella Day (5)
Bubble Gum Day (5)
Dump Your Significant Jerk Day (6)
Ballet Day (7)
Jell-O Week (7-13)
Just Say No to PowerPoints Week (7-13)
Wave All Your Fingers At Your Neighbor Day (7)
Laugh and Get Rich Day (8)
Read in the Bathtub Day (9)
White Shirt Day (11)
Get a Different Name Day (13)
Employee Legal Awareness Day (13)
Quirky Alone Day (14)
National Call In Single Day (14)
National Gum Drop Day (15)
International Pancake Day (16)
My Way Day (17)
Hoodie Hoo Day (20)
Love Your Pet Day (20)
Clam Chowder Day (20)
Single Tasking Day (22)
Curling is Cool Day (23)
Inconvenience Yourself Day (24)
National Chili Day (25)
For Pete’s Sake Day (26)
Texas Cowboy Poetry Days (26-28)
International Sword Swallowers Day (28)
National Tooth Fairy Day (28)
International Insist It’s a Leap Year When It Really Isn’t and Refuse to Move into March Day (29)

What does this mean for employers? If your employees suddenly start impersonating Liberace, swallowing swords, eschewing PowerPoints, wearing tutus, inconveniencing themselves, changing their names, crooning like Sinatra, refusing to multi-task, incorrectly predicting the weather, encasing office supplies in Jell-O and/or suddenly leaving work to return stolen shopping carts, now you know why.

Enjoy the month!

(Sources: holidaysmart.com, emotionscards.com, brownielocks.com)

Weekly Office Analysis & Contest

Mark Toth — Fri, 29 Jan 2010 10:07:01 +0000

In my humble opinion, NBC’s The Office is the world’s #1 employment law training aid. All you have to do is (1) watch it and (2) do the exact opposite of everything you see.

To help enhance your viewing experience, each week I provide a critique of the action from an employment lawyer’s perspective.

Last Night’s Episode: “Shareholder Meeting.”

The Plot: Here’s NBC’s official description: “Michael brings Andy, Oscar and Dwight to New York to join him at the Dunder Mifflin shareholder meeting.”