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Tuesday, January 27, 2009

Should I be offended?

My mother sent me this joke:
Some cannibals get a job in a big corporation on the condition that they don't eat any of the other staff. Things go very well until their boss calls them into his office one day and gives them some bad news--a janitor is missing in mysterious circumstances and the cannibals are under suspicion.

The cannibals get together after work. Their leader says, "Which of you idiots had the janitor?" One of the cannibals raises his hand.

"You idiot! For weeks we've been feasting on team leaders, project managers and human resources staff, then you go and eat someone they'll actually miss!"

General Release Woes

I was recently laid off with 60% of my department. I got 3 months of severance pay by signing a General Release that basically said I won’t sue the company for any reason, and I can’t work there for 6 months. I’ve tried to find out why this “6-month rule” is part of the General Release. Two hiring managers want to hire me back, but are hitting the 6-month rule roadblock.

Before I signed my General Release, I was chosen as the top candidate for a position in another department, but there was a sudden hiring freeze in that department just before the hiring manager could offer me a position. The position may open back up (at about 3 months into my 6 months), and I probably can’t be hired now, because of this dumb 6-month rule. Not only does this hurt me, the manager can’t get the employee he wants, and has to go farther down his list of applicants and/or re-open the time-consuming interview process.

A second position opened up (due to someone leaving that job for another job) that was absolutely perfect for me, in my old re-organized department. I was an excellent match for skills, and I had great connections within the group. I actually found out that the hiring manager had already inquired about hiring me, but he was told by HR that I can’t be hired because of the 6-month rule. Instead of filling his position ASAP, he now has to spend time interviewing lots of people.

This is very frustrating. I’ve talked to several HR people who are uniformly adamant that the 6-month rule cannot be waived (yet I know exceptions ARE made), and nobody in HR can explain the purpose of the 6 month rule. The 6-month rule can’t be about “double dipping” because there’s already a clause in the General Release that anyone re-hired before the severance pay runs out has to give money back (e.g. if you had 9 months of severance pay and were rehired at 6 months, you give back 3 months pay).

If I could figure this out, it might aid me in circumventing what appears to be a dumb, arbitrary and harmful rule.

I would love, love, love to help you figure this rule out, but alas, I cannot. It's not because it's a secret HR rule, it's because I think it's about as stupid as they come.

Now, I can give you some insight into a few other things. When you layoff someone you want to make a couple of things clear. First, that they aren't entitled to the next vacant position that matches their skills. Two, that they can't come back as a contractor in a similar role. Three, no double dipping.

My guess is that the six month prohibition against returning is related to the first point. Companies don't want to get involved in a "failure to hire" lawsuit. These lawsuits are where the candidate argues that the only reason he/she wasn't hired was an illegal one--race, gender, age, pregnancy status, etc. These are hard to prove (normally numerous candidates), but still expensive for the company.

My lawyer friends can chime in, but I actually think prohibiting someone from coming back for 6 months actually increases your chance of a failure to hire lawsuit. Why? Because you imply that they are eligible for rehire after that 6 month time period expires. I prefer to see a clause that states that your relationship with the company is severed and that the company has no obligation to rehire you at all.

Now, this statement doesn't mean that the company can't rehire you, it just means that when you sign the release you acknowledge that they are under no obligation to rehire you. And furthermore, that you will not be treated differently than other candidates.

When you put time frame prohibitions in your releases you are asking for problems, in my opinion. The goal of a reduction in force should be related to making the business more effective. Not just cutting heads. (Lots of companies have bloat and sometimes a mass layoff can help with that--proceed with caution though. Lots of potential problems, but that's a topic for another post.) If you are just obsessed with getting your headcount down, you are doing it wrong.

Managers should be able to hire the best candidate. This is what is best for the company. Remember the company? The company that was supposed to be more effective after a reduction? Yeah, that. So, stop prohibitions against hiring any particular person and just train your managers on how to hire.

If someone else could explain to me why 6 month or a 1 year prohibitions exist in releases, I'd be happy to know. And yes, I know that some releases prohibit employees from ever applying again. I know why this is: We don't want you back. (Companies that do this to everyone are just plain dumb, by the way. These clauses should be added to your low performers or problem causers, not everyone.)

The second prohibition I listed above was to prevent you from coming back in a contractor role. While this may seem as silly as the 6 month delay, there are actually legal reasons behind it. If you come back as a contractor 3 months after I lay you off, you can argue that you really are an employee and your job never was eliminated because, look! you're still doing this. Employees have rights under federal and state laws that contractors do not. For instance, if you successfully argue in court that you are an employee not a contractor then I have to give you the same benefits all my employees get.

The third, which your contract has, is a prohibition against double dipping. This also makes sense. We should not be paying you severance while we are paying you a salary. Repayment clauses are fine, in my book.

I realize this didn't solve your problem at all, but it was fun for me to muse on and I really do want someone to explain the logic. (Of course, I left out the most likely answer--someone high up wants it in there, so there it is and HR thinks it's stupid, but we're stuck with it.)

Monday, January 26, 2009

Confidential Email

I have a question I am hoping you can answer as I have been searching the Internet for about three hours now and have found nothing. I did what was probably a really stupid thing to do. I was very ill and so not using my best judgment I wrote an email to our (evil??) HR lady. In this email I expressed my gross intolerance for a coworker. I posed, in a not so nice way, the question of why someone as inefficient as them could be allowed to keep their job for so long. I then went on to make a few snide remarks about the company for letting this go on so long. I know, I know, I know..... never in writing, but like I said I was sick and my judgment (not to mention my patience) was a bit off.

Come to find out the email had been forwarded to the COO (small company...about 40 employees) of the company and then to my direct supervisor from the COO. Now I feel like a total idiot. What I want to know is if the company's HR rep violated any laws by doing this. I know it was completely immoral, but was it illegal?

Well, it's not illegal (she says in her non-lawyer, non legal advice way). HR people are not required to keep a confidence as a doctor, priest or lawyer is. In fact, part of our job is to blab. Which means that I'm also going to suggest that it wasn't necessarily immoral either.

Let the angry evil HR comments begin.

HR represents the company, not the employee. This sometimes requires following up on a complaint. Now, your company is small, so you probably actually have a relationship with your HR person. If I'd received such and e-mail and I knew it was out of character for you, I might have e-mailed it back and said, "Did you mean to hit send?"

But, having a productive workforce is part of HR's long list of responsibilities. I have to assume that if you tell me a co-worker is a complete slacker that you want something done about it. Not knowing your company culture or the organizational structure I can't comment on whether it was appropriate to forward the e-mail to the COO.

Actually, I can. I would think the proper thing to do would be to find out myself if there was a problem with your co-worker, or with you, and then decide who needs to know. But in a company that small, the COO very well could be the right person.

We understand that sometimes steam needs to be blown off. We also sometimes over-react. Some people would send off an e-mail like this and wonder why in the heck no one brought it to the COO's attention! You can't win in this HR business.

What should you do? Apologize for losing your temper. Get back to work. Hope your co-worker doesn't find out about it. Address it head on with your boss. And finally, read the comments here, as my readers will have better advice.

Wednesday, January 21, 2009

Exempt Time Wrangling

Is it possible (i.e. legal) for an employer to define some exempt employees as 40-hour per week exempt employees, some as 35-hour per week employees, some as 32-hour employees, etc. when all were originally hired for 40-hour per week exempt positions? This particular employer routinely reduces a 40-hour employee’s hours (as well as salary) if the work load for that employee decreases either temporarily or permanently. The employer does this at will and then often drags their feet in restoring the 40-hour status when the work load increases. All these employees are doing the same type job, have the same credentials and qualifications. Workload for this position is regulated by state law.

First of all, it's time for my standard disclaimer: I am not a lawyer. I do not profess to be a lawyer, and I do not give any legal advice.

It's perfectly legal to have exempt jobs at less than 40 hours a week. But, I think what your boss is doing is illegal. One of the criteria to be exempt is that the employee must be paid the same amount, regardless of the number of hours worked. If he were evaluating jobs and adjusting pay (note, not hours, because technically you don't pay exempt people by the hour, although you can require that they work specific hours), once a year I might buy it. What he's doing is trying to have his cake and eat it too.

There's nothing wrong with paying someone by the hour, even if their responsibilities would make them exempt. The key is, though, if you choose to pay them by the hour you give up the exempt status and if they work 41 hours, they get overtime pay. (There are some exceptions to this in IT, I believe, but we'll assume this is not that situation.) What you can't do is pay less when they work less than 40, but not more when they work more than 40.

So, my advice is to contact your state Department of Labor. I don't know what your job is that is regulated by the state anyway, but methinks it's time for an unpleasant audit.

Of course, if you are feeling compassionate, you could warn the boss that you believe his actions are illegal. I suspect he knows that already, and no telling the fall out you'd get.

It really bugs me when people attempt to treat their employees like dirt and then wonder why they have low morale and high turnover (which I bet you have!).

Monday, January 19, 2009

Race Questions

Today is Martin Luther King Jr. day. In preparation for this, Offspring #1's kindergarten class read a story about Marin Luther King Jr. She came home and told me all about it. And then she had some questions.

"Mom, are we white?" This was a sincere question, by the way.

"Yes, we're white."


"Is Katelyn white?" Katlyn is the blond haired, blue eyed, neighbor girl of Scandinavian descent who, frankly, could be the poster child for white folks.

"Yes," I said. She doesn't really know what it means to be white or black. We've never talked about the concept. I decide to explain.

"Steve is black," I said, referring to an adult family friend.

Ahh, the dawning of recognition. "Samuel is black!" she said, excitedly.

"Yes," I said, "Samuel has dark skin, but his dad is black and his mom is white." Oops, I've introduced another layer of confusion, because the next question was;

"Is Mr. Baby black?" Mr. Baby happens to also be known as offspring #2. He has the same skin tones as the rest of the family. I explained.

"Oh," she said. And she was done with the questions.

She's 5 and contrary to what you might think from this story very bright. (Not that I'm biased in any way.) We've never talked about race. She's had friends and teachers of all races. It was clear that she had never given one moment's thought to why some people's skin colors were different than others.

Which makes me wonder; By talking and teaching about people's differences, does it make it more difficult to see how they are all the same? Does it lump people into groups that they shouldn't be lumped into? If we divide people up by color and pat ourselves on the back for increasing our diversity, have we really diversified anything? Or have we just made everyone suddenly very conscious of their skin color and the skin color of those around us?

I'm pretty sure Offspring #1 considered skin color something similar to hair color. Lots of differences, but not a big deal. If we start focusing on how skin tones make us different, then don't we end up falling into stereotypes? Katelyn must be like this because she's white and Samuel must be like this because he's black.

Reality is, both friends Katelyn and Samuel are being raised in the same town by parents of very similar economic status. They attend the same public school system. These things are going to lead them to be more alike than different. The big differences between Katelyn and Samuel will be found in things that have nothing to do with skin color. For instance, Katelyn has one little sister. Samuel is the second youngest of 8. Katelyn attends one church; Samuel another. Katelyn takes dance. Samuel plays soccer. Katelyn is up at the crack of dawn. Samuel's mother has to drag him out of bed every morning.

Many businesses are required to report on race. We have Affirmative Action plans that we are required to present and show "improvement" on. Doesn't this just turn us from looking at who someone really is and push us towards making judgments based on skin color? In one breath we tell managers to hire the best person for the job. In the next we say, "minorities are underrepresented in your department." How can that not influence a hiring decision.

I'm glad Offspring #1 has learned about Martin Luther King Jr. And, in fact, we are heading to a day of service in his honor this morning. I'm glad things have changed over the years. I'm not sure, however, the emphasizing differences is the best way to go about it.

Tuesday, January 13, 2009

Super Secret HR Stuff

I've gotten a few questions lately that ask about "secret" HR stuff. So, I've decided to spill the secret HR beans and blab about all our secret handshakes and stuff. Except if there are any, no one has given them to me. I suppose this is because I don't belong to SHRM. Why? My employer won't pay for it and I'm too cheap to join myself. So, there's a secret for you!

The first question deals with a woman who fought the HR director and lost and then was coincidentally laid off shortly thereafter. In the past she's had no problem finding new jobs, but now the interviews go well, but then no one ever calls back. She asks:

The real question - the HR recruiter from my last company is well connected with recruiters all over the Bay Area which I can tell from our connected LinkedIn accounts. Is there a protected website for HR professionals where references are available that are not the type that would be given on the phone? Negative references that could lead to lawsuits? I just have this feeling that something else is in play here that I have no control over.

No secret, password protected sites that I'm aware of. (Again, maybe I just am not evil enough to get the passwords.) But, what you can do is follow up with the companies you interviewed with. Don't be pushy, but inquire about the position. If you really believe it's because of a negative reference from this woman, have a friend call her up and ask her for a reference for you.

If the reference is negative, you can then deal with that. If it's positive or neutral (many companies have policies against giving references--managers don't follow that but HR does), that's not your problem.

But keep in mind--the economy isn't going well. There are tons of applicants on the market and companies are sometimes hesitant to hire if they are afraid they will have to fire later. Also, make sure you provide references. Not everyone will restrict themselves to just calling people on the list, but many will. Control as much of the process as you can.

The next secret HR dealt with tattling to the authorities:

I recently applied for a job and as par for the course was required to consent to a criminal background check, credit check, physical.... Everything, it seems, except my blood, which i might add.... They took. Anyway, I'm worried that I may have a bench warrant from over ten years ago for a traffic violations. My question to you is, if this is true, can my prospective employer notify the local authorities?

Sure they can! Your neighbor can too. I don't know anyone that would--for traffic violations. Sure, if it comes up that you are wanted for armed robbery, I'd make that phone call myself. (Although I don't know how our attorneys would feel about that, but frankly, I'm more afraid of armed robbers than attorneys.)

Your real concern is that you've got something in your past you don't want to come out. Why not deal with it head on? Hire an attorney and have him contact the state in question and see what can be done to clear up your little mess. Pay your fines, take your punishment and get on with life. I don't know how bad this is, but I imagine the state would rather get money from you than throw you in jail, so why not face it head on and get over it?

HR really isn't in the business of law enforcement. We run background checks because we don't want bad people working for and with us. If you get angry and go shooting people up, we don't want to hire you in the first place because you might come after us when we eventually fire you.

So, deal with it and then you can stop worrying. Unless you are applying for a driving job, people don't care about traffic tickets. We do care if warrant comes up for you in a background check because that scares us a little. If we could legally not hire you because of it, I honestly don't know. Probably not. But, still, take care of it.

So, now you have learned some super secret HR stuff. Hope it helps.

Wednesday, January 07, 2009

You've Been Upgraded

The Workplace Professor Blog brought a fabulous new way to label a termination to my attention: To Upgrade. As you've been upgraded immediately so you can go get a new job.

Seriously. Come on, people, this is an embarrassment to a grim reaper like me.

Tuesday, January 06, 2009

When HR Should Act To Save Money

Phillis Dewitt was fired from her job as a nurse. The hospital maintains it was due to insubordination. Dewitt claims it was because her husband was dying of prostate cancer and costing the hospital a boatload in insurance claims.

Obviously, I wasn't involved in any termination discussions, but I imagine HR was. And perhaps they were overridden in any objections, but this is a situation where HR needs to be assertive and lay out the problems with a termination in this situation.

1. Employment in most situations (and no union was mentioned in the article) is at-will. This means that you can quit or be fired whenever. No warning. No severance. No notice. In practice, this hardly ever happens. The hospital had a practice following a formal disciplinary protocol. This was ignored in Dewitt's case. HR should say, "We understand that she was insubordinate, but we have to treat everyone the same."

2. Managers, even ones with medical knowledge, should not be suggesting that someone's spouse enter hospice care. Hospice is end of life care. It is deciding that it is time to let go and not attempt to prolong life. The manager claims she was trying to be compassionate. I would buy this if she didn't turn around and fire Dewitt for not coming in for a meeting while she was on a scheduled vacation. HR should say, "We understand that you believe they are making the wrong choices and that those choices are costing the company money, but this is not an area which you should be involved. If her performance suffers, then we'll talk about how to handle this. But, you are not to attempt to influence medical decisions."

3. Except in extreme circumstances, employees can opt for COBRA to continue their health coverage. Which Dewitt did. Therefore, the company only saved the $900 a month that Dewitt paid in, to keep coverage that was costing over $100,000 a year. HR should say, "You realize that this termination is highly suspect and will not save the company any money due to COBRA anyway."

4. For the reasons above, this termination is a law suit waiting to happen. The reality is, whether the hospital was legally justified in terminating this employee, HR should have brought the following information to the attention of the decision makers:
  • The termination did not follow policy.
  • The employee is highly likely to sue.
  • Lawsuits, whether successful or not, are very expensive. Expect to spend several hundred thousand dollars defending a lawsuit of this nature.
  • The employee is highly likely to opt for COBRA, therefore the savings you hope to achieve by termination will not happen.
  • This termination is a knee-jerk reaction to a financial problem. Any proposed solution will end up costing more than allowing the employee to continue working.
  • This is a public affairs nightmare. This is the type of story the media will pick up on. This will go public.

  • Any HR person worth her paycheck should have been able to present the above. Sure, she could be overridden (and I hope HR did the above, because otherwise they don't deserve to be respected).

    This is a situation where keeping the employee working is actually cheaper than the "cost-saving firing." This is true even if Dewitt deserved to be fired. I certainly can't speak to that, but there are costs to terminating people that HR should understand.

    (Via The Happy Hospitalist.)

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    Monday, January 05, 2009

    Year End Crunch

    I work as an administrator for an accounting firm. Each December we seem to be understaffed due to vacation time to handle year end and month end client responsibilities. We are working to create a restricted vacation policy for the period of 12/15 through year end. There is no motive behind this other than the fact that we're an accounting firm, and by the nature of our business year end and month end responsibilities must be met. Do you have any suggestions for a fair policy?

    Yes, HR gets whatever they want off and the rest of you have to suffer! Ha! Ha! Oh dear, I've had a little too long on vacation. (In fact, I'm actually tired of having fun. Well, having fun and cleaning out the basement.)

    Yes, you see, my company shuts down between Christmas and New Year's so coverage isn't a problem, because we're all out. But, we're not an accounting firm. So, let's talk about a good policy.

    Wait, let's ask a question. Why aren't your employees meeting their month end responsibilities? Because that's what I really wonder. In my set of beliefs, it doesn't matter what days you take off, you schedule your vacation around your work responsibilities.

    I think you need a culture shift. Not that I'm advocating people selling their souls to the company. Not at all. I'm advocating people recognizing that their clients--their responsibilities--are important. If all your clients are taken care of, take a vacation. If not, well, you get to work!

    But, then you could argue, what about administrative and support staff? They can't control what the actual accountants do with their clients and if there is no one to make copies then you've got troubles.

    I also understand that clients are procrastinators and you can plan and plan and plan and promise your mother-in-law you will be there (and perhaps your mother-in-law will call you to tell you that it might be a good idea to bring a blanket for the baby because you, of course, wouldn't think that snow=cold and that babies need to be kept warm, but I digress), but the client will still call on December 23 with new requests and when you say, "is this everything?" they will say yes, but on December 31, they send you new "updated documents" via courier. So, yes, it's always going to be a problem.

    But, this is predictable, so again, I have to go back to the old "you work when there is work to do." Which stinks. So, don't work for an accounting firm.

    But, I haven't given you any new and exciting vacation policies. I don't have great ones. You can always do it by seniority, but if you have low turnover it makes the new people feel unappreciated and bitter. You can do it first come-first serve, but then you have people requesting vacation time for December in January and it becomes a big mess.

    You can also limit December vacation altogether. Or close down December 24-26 and say that's it. Then clients know as well that you won't be available.

    If I had to make a policy I would do it on a rotating basis. I would figure out the bare minimum of staff needed during December 15-31, and then have the other spots available for vacation. If you got to take vacation this year, next year you are last in line for vacation spots. You also limit the number of days they can take during that time period--3 days, or 5, so that more people get the opportunity to take off.

    It's not pleasant, but that's why they call it work. Any other suggestions are welcome.