May 2007

Hello Evil HR Lady,

There has been some conflict lately around religious expression during break time at work. We have a small staff,

Recently, the owner ‘caught’ two of us ‘praying’ quietly together in the break room, during a break (one worker was having a lot of difficulties that day and her grandmother was in the process of dying). Different staff members have done this sort of thing several times in the past (quiet, consensual, spiritual sustenance/healing, during break) – in times of great stress, and the owner has never noticed. But this particular time, the owner found reason to put a nose into the break room a few times to discern what was going on, then rudely forced us to stop, scolded us and told us never to do it again. This was a shock to many of us who work there.

Now, the owner is finding it necessary to add a “no promotion of religion” policy which restricts religious expression at the workplace. The parts of the new policy that I am most concerned about include:

“does not restrict a staff member from reading religious materials on a break or from quietly and individually (not in groups of two or more) praying or meditating on a break”

“It restricts groups of two or more from engaging in religious practice”

I don’t believe the owner means for this to be the case, but this feels mean, unjust, inappropriate, and probably illegal. We have been asked to sign an updated employment agreement that includes the language above, and let’s just say – I don’t feel good about. If you could help us with resources to provide to the owner to help our business remain fair and legal, I would really appreciate it.

Thanks so much for your assistance! You provide a great service.

First, the standard disclaimer: I am not a lawyer. I don’t even watch Law & Order any more. I’m in protest since Jerry Orbach died (he played Lenny Briscoe, for you weirdos who don’t love Jerry), and they brought Detective Fontana on board. (Yes, I know, Orbach left to do a spin off and then died. Fontana would be around even if he was still alive.) Hmmm, I think I’m digressing.

Here’s a statement from the EEOC:

Employers must permit employees to engage in religious expression, unless the religious expression would impose an undue hardship on the employer. Generally, an employer may not place more restrictions on religious expression than on other forms of expression that have a comparable effect on workplace efficiency.

Now, before you print this out and take it to your boss, please note the following:

• Your workplace has less than 10 employees. This generally means it’s not subject to many of the rules larger workplaces are.
• Even if it does apply, is it having an effect on workplace efficiency? Perhaps. You stated that in normal circumstances breaks are one at a time. Two at a time can affect workpalce efficiency.
• If you were in there discussing the stock market, would your boss be equally upset?
• I think your boss is unwise to have the policy he has. Rules designed to solve specific problems generally create new problems–as this one has. A better rule would have been, “one person at a time in the break/changing room.” It would have solved the boss’s perceived problem of his staff getting too religious and none of the employees would have felt singled out.

  So should you sign the agreement? Well, I honestly don’t know whether it’s legal or not. If it’s not, and you sign, it’s not enforceable in court anyway.

  What would happen if you didn’t sign? Would you be fired? You could try talking to your boss. Ask him to explain his feelings. You may find out that he’s concerned because breaks are taking longer and there is weeping going on, which makes him uncomfortable. You may find out that he thinks you are going to Hell for your crazy belief. You may find out that he’s scared to death that the ACLU is going to show up at his doorstep if he allows this kind of behavior although he wishes he could join you. He may have had other employees come to him, complaining about how some of their co-workers are always involved in exclusionary religious discussions.

  Having less than 10 employees gives your boss more flexibilty than a larger employer, although I doubt he knows this. Try presenting him with the above quote from the EEOC and ask to have the language removed. Just say you are uncomfortable with it and that you understand the importance of hard work and want to do what is best for the business. Give him a reason why he should remove it–one that will be positive for the business.

  And, be careful that you aren’t trying to convert your co-workers. It’s okay to talk about your beliefs and your religion, but if others aren’t interested, let it drop. You don’t like feeling uncomfortable and neither do they.

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Hello, Evil HR Lady!

I was wondering if you could explain something to me. My job was recently reclassified from exempt to non-exempt. I understand the technicalities of it. What I don’t understand is the real implication.

I’ve never been classified as non-exempt, not even years ago when I was entry level (well, as a kid in summer jobs, but you know what I mean). My perception was that it was essentially for non-professional positions. If it was a positive classification, I have no doubt management would include themselves. I’ve hunted online, but everything I’m finding discusses the issue from the employer’s point of view. I want the big picture. What are the pros and cons of this from the employee’s perspective?

Thanks,
Reluctantly Reclassified

First of all, whether or are exempt or non-exempt is based on the Fair Labor Standards Act. For whatever reasons, your company feels like your job doesn’t meet the requirements to be classified as exempt.

You didn’t mention what you do, so I’m going to assume that your classification is correctly identified as non-exempt. For jobs that are on the border between the two classifications (which yours probably is, since it went from exempt to non-exempt), the company is wise to classify the job as non-exempt. There are no punishments for incorrectly labeling a job non-exempt, but you can get yourself in big trouble for incorrectly classifying a job as exempt.

I’m just going to list one pro and one con of being non-exempt.

Pro:

• Overtime. Any work more than 40 hours a week and they have to pay you overtime. You take your laptop on vacation and spend an hour working? They have to compensate you for that time. Your boss calls you at home and asks you work questions? They have to pay you. If you are exempt, forget it.

Con:

• Mobility. In my experience, it is much harder to get promoted from a non-exempt position into an exempt position than it is to get promoted from a low level exempt job into a higher level exempt job. There is a perception that you lack higher level skills.

What does this mean for you? Hard to say, since I don’t know anything about your job. I do recommend sitting down with your boss and asking to see the criteria that were used to classify your job. If you want to be considered exempt, ask what responsibilities you can take on to be re-classified. It’s doubtful your boss will have a clue, at which time you might want to make an appointment with HR. Keep in mind that your employee relations person might not have a clue either. In that case, you need to find out the person in compensation who made the decision.

Of course, if you work for a small company, that may well be the same person.

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Hello!

I’m writing with a quick question regarding “the offer.” I’m currently working in a position where when one crazy employee was fired, I was told I’d be promoted to cover both her position and mine…in February. It is now May and despite periodic check-ins, I’ve been told there are no updates and that decision makers usually move slowly. (It’s true that this involves bringing someone else into our department in a different position/payscale, so this may be the hold-up). In the meantime, I interviewed with a different company and was offered a position. After some deep soul searching, I’ve decided new position is not for me…despite the fact that they are offering to pay me $10,000 more per year than my current job. If I could receive my promotion in a timely manner and possibly half of that additional $10,000, I’d happily stay. But I’ve heard horror stories where people say that they received an offer and simply get a “pat on the back and good luck.” It’s my notion that you shouldn’t attempt to negotiate in that fashion if you aren’t prepared to leave.

Can you offer any advice on this subject?

Thanks!

The new position is not for you, so you are stuck. Why? You never make a threat you are not willing to follow through on. (This is why you see stressed out parents at the park screaming, “If you don’t come back here right now, I’m going to kill you!”, while the kid runs around giggling. The kid knows this is not a valid threat. A better threat is, “if you don’t come back here right now, you will not get dessert.” You can follow through on that one.)

Sorry, I got distracted by parenting woes. You don’t want the new job, so what if they take you up on your threat? Then you have to take the job you don’t want.

Promotions can take a very long time to wind through the system, so it doesn’t surprise me that it’s been a few months. You can certainly ask for a time table and for an explanation of what is taking so long. If you are feeling brave you can say, “XYZ offered me a position at $10,000 more than here. I turned it down because I feel like this is where I want to be. But, I can’t stay here indefinitely, hoping for the promotion.”

There is risk in that–now they know you are looking (or have looked for a new job). If loyalty is important to your boss, you may be in trouble. And keep something in mind–something like 80% of people who accept counter offers from their current employer end up quitting within a year anyway.* That’s why I almost never advise managers to do anything other than congratulate the employee on their new job and throw a nice going away party. They’ve checked out anyway.

*I totally pulled this number out of the air. I swear I remember reading it somewhere and I believe it is true, but this is a blog, not true journalism and I’m too lazy to fact check. If I wasn’t lazy I’d be out shoveling mulch, so I still wouldn’t be fact checking.

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Dear E.H.R. Lady,

I love your blog! I’m hoping you’ll share your opinion on this issue. My workplace is a large non-profit organization where staff are unionized. We have an admin assistant — I’ll call her “Tina” — who is incompetent, insubordinate, and lazy. She has been this way since she was hired 10 years ago. The two managers and three directors we’ve had over the years have each been unable to help her improve her performance. She is chronically late, makes costly errors, finds any excuse to be away from the office/desk. She is inefficient and disorganized. She blames all her mistakes on other people. Not surprisingly, this has taken a toll on other staff who have to live with the consequences but are powerless to change the situation.

Each manager/director has been aware of the situation. Each has collected “documentation.” There must be a file drawer full of this stuff. A few years ago, “Tina” filed a grievance against one manager for placing a warning letter on file without asking Tina to sign it first. (The manager had received incorrect procedural advice from HR.) Tina won her grievance and the letter was removed.

Manaement seems to go through phases where they’re actively “documenting” her. They’ve had countless talks and arguments. They’ve hired assistants to do the work Tina has failed to do, paid a lot of money to fix her mistakes, brought in coaches of various kinds to try to improve her performance. There are temporary improvements and then we’re right back where we were.

The managers are all terrified of another grievance. They claim it’s impossible to fire someone because of the collective agreement. This bugs me. I like unions and what they stand for (benefits, raises, safety, vacations), and I don’t really think management has tried hard enough to get rid of this person. There’s nothing in the collective agreement that says you can’t fire someone, but you have to follow certain procedures and be very direct with the employee about what is happening. Instead, management would rather blame the union and wait for someone else to deal with the problem.

In your experience, how hard is it to fire someone in a union? What do managers do wrong in these situations and what could they do better?

Please help us! The work we’re doing is important and I think we’re at serious risk of losing good people if we can’t get rid of the bad.

Throughout the above letter, I’ve put several phrases in bold. I did this, not just to be aesthetically interesting, but to call attention to your real problem (which you already know).

The problem is not Tina. The problem is the managers.

The first clue is that Tina has been there 10 years. Each passing day makes it harder to fire someone. I presume this is even more so in a union environment, where seniority plays a key role. My argument, (if I were Tina or the Union) would be, “If I’m such a bad employee, why didn’t you fire me 10 years ago? I haven’t changed and the work hasn’t changed. Therefore, this is an unjust termination.”

It’s a valid question. Why didn’t they fire her or begin filing grievances on her first mistake? I know that seems harsh, but it’s the only way to make sure you don’t end up here–10 years down the road. The right thing to do is still to send her out the door. If what you’ve said is true–about costly mistakes and hiring coaches–then what is management scared of? If the union workers (not union leadership) is just as annoyed with Tina as you are, they aren’t going to see Tina’s termination as a rallying point.

There are procedures for firing a union person. They need to be followed. Your managers won’t do it. Why? They’ve checked out. They know they won’t be in the position forever, so they ignore it and push it onto the next person to take the job. It’s less difficult to ignore and compensate for Tina then it is to get up the guts to do something about it.

Managers, presumably, make more money than staff because they have to make the hard decisions. This means dealing with the union. Somehow, I can’t imagine the union being completely irrational. Yes, Tina filed a grievance and won. But management didn’t follow proper procedure. They need to follow proper procedure.

This does not help you in anyway, however. You (as you know) won’t win any points by documenting Tina’s behavior yourself. So, what can you do?

• Find a new job and quit. I know, I know, you don’t want to. Which brings us to our next point.
• Refuse to accommodate Tina any more. If she’s late, she’s late. Don’t mention it, don’t deal with it, just ignore it. Don’t help her on things she is late with. Let management feel the pain–rather than her co-workers.
• Be nice to everyone. This is always good advice, but in this situation it is especially important. No “Tina is such a jerk” conversations. Just, “It’s too bad Tina is going to have to stay late and miss Happy Hour tonight,” said in as sympathetic manner as possible.
• Ignore it yourself. Management is ignoring her. You try it. Right now, Tina is the proverbial little sister sitting next to you in the family station wagon. She has her fingers three milimeters from your face and when you complain she shouts, “Mom, I’m not touching her!” Ignore her. Like your little sister, she won’t go away, but she won’t be in control any more either.
• Find a new job and quit. Hmm, that sounds familiar. Managers aren’t going to solve this problem, so take yourself out. Really. It’s not the only job out there.
• I know this has been supremely unhelpful. That’s because the solution to Tina is not within your grasp. Be nice to Tina. Be nice to your managers. And learn to either breathe through it or leave.

  But, let this be a lesson to all you wimpy managers out there. Your other employees know who the bad apples are. It’s costing your more than the bad person’s salary. It may cost you your best workers.

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