April 2009

You Can’t Quit, I’m Firing You!

by Evil HR Lady on April 30, 2009

Another guy and I, used to work for a “bad boss”. You know the type – he will lie, cheat, steal, etc. if so inclined. This other guy quit, and after the “non-compete” period was up, he started his own “competing” company. His company grew enough to bring on additional help, and he offered me a job. I accepted his offer and turned in my notice to HR at the old company. A week later, this “bad boss” found out I was leaving to go work for this competing ex-employee and drummed up a number of bogus reasons to fire me and I was walked out 2 days earlier than planned.

I worked for the new employer for a year before the economy slowed down and I was laid off. My problem is in applying for new jobs. They ask “Have you ever been terminated? Explain”. If I say “No” and they contact the “bad boss” company, will a “He was terminated” response make me look like a liar? If I say “Yes”, what do I put for the “explain” when I was really terminated for planning to work for a competitor? Will the “potential employer” get my “bad bosses” bogus reasons for my “termination?

I find this to be a fascinating question, which kind of surprises me because on the surface it doesn’t seem that exotic a question. After all, it’s not like the kind that Dear Abby gets (“Dear Abby, my sister-in-law didn’t sit next to me at a bridal shower. True, she arrived late, and there were no chairs next to me, but she should have made an effort. I was so angry, I poisoned her punch. Then I felt guilty and knocked it out of her hand before she could drink it. It stained her shirt. She says I should pay for the cleaning. I don’t think I should. What do you think?”)

Here’s why I think it’s interesting: I would say that you’ve never been terminated from a position. Lots of times employers don’t want you working for them once they know you are going to a competitor. It’s not uncommon for someone to hand in two weeks notice and be told that today will be their last day.

But, I think I’m wrong here. This situation is different in that they came up with reasons to terminate you, didn’t terminate you upon your giving notice, and will (most likely) state you were terminated if anyone should happen to call them for a reference.

The problem with references is that you don’t get a chance to defend yourself. (Usually.) I know most HR types are huge fans of references, but I think there are huge flaws in the whole reference system. After all, unless I know the person giving the reference, how do I know she’s not a complete whacko? That’s another reason why networking is a much better system for finding a job. But, I’m digressing.

Here’s what I would write: “I received an offer to work for [x] (a direct competitor), and gave two weeks’ notice. Company opted to terminate me prior to the notice period ending.” That sounds accurate, right? Will it compensate for a scathing reference should they call your previous company? Probably not. (See above paragraph.)

The more critical question is, will your last boss (who just laid you off) give you a good reference? I think it shows your value as a worker when someone has recruited you like he did. I think it says a lot when someone says, “I not only like working with you, I like working with you enough to hire you myself.”

Good luck with your job search. Hopefully all will go well and you’ll be in a fancy new job soon.

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FMLA for a poor performer

by Evil HR Lady on April 28, 2009

I have an exempt employee on intermittant FLMA, due to a medical illness which has been confirmed by a doctor. The employee has not used all of the 12 weeks as of yet, but is getting there.

The employee is very sporadic in when he/she will work, some days the employee is fine and others not. She will work a week here and off one here and there. The doctor has cleared her to work 6 hours a day, but these six hours the work ethic is very poor, no past documentation. (I am the new HR Superintendent.)

To help you understand the situation a little better, this is a camp job, very remote, my exempt employees work 4 days on 3 off, they stay in camp 3 nights, normally work a 11-12 hour day. My worry is if I attempt to document poor work performance while the employee is under medical care, I am opening the door for the EEOC or ADA or NANA. I have offered reasonable accommodation by allowing a six hour work day. Again this is a camp job so working six hours leaves 18 hours in the employee dorm. I want to state that I cannot accommodate her 6 hours or better yet start documenting poor performance and terminate. But again I feel I am opening the door for the EEOC, ADA and NANA.

I want to say, off the bat, that I have no idea what NANA is. I hope it’s not terribly important. I googled it and did not get any answers that seemed to fit the context, although I admit, I didn’t look very hard.

You get, after all, what you pay for.

But, yes, you should document. You should be documenting on everyone with performance issues. If you are only documenting her issues, and not everyone elses, well then, you’ve got trouble with a capital T, which rhymes with P, which stands for pool. Which reminds me, I need to find out about swimming lessons for offspring number 1.

Anyway, your problem will probably resolve itself, if she’s getting close to using all 12 weeks of FMLA. Intermittant FMLA can be extremely tricky, so I hope you have someone who is an expert advising you on this. Make sure that absences are approved under this FMLA, and not assigned to some other bucket.

Contrary to popular opinion, you can still fire someone for performance reasons, even if they are on FMLA. You can also eliminate their positions. But, you are right in that so doing opens you up for attack. It’s generally guilty until proven innocent in these situations, so you have to be prepared to defend yourself.

You say you are new. Take this opportunity to do things the right way. Don’t let this happen again. Frequently, people are afraid to deal with problems, because we all hope they will just go away. Problem employees rarely go away on their own accord. And, they don’t get better unless they have reason to.

So, document for anyone with problems. Keep tabs on the FMLA. And, as for the six hour accommodation, since you’ve already approved that, I doubt that you’ll be able to change that now.

Oh, and please don’t just document. Keep the employee informed as to the expectations. She may be thinking, “I’m sick, therefore I don’t need to do X.” You may also not have a clear understanding of her limitations. Please keep an open dialogue.

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Furlough

by Evil HR Lady on April 26, 2009

I work in a supervisory position in IT. My employer is, like everybody else, doing some belt-tightening in response to the economy. Among other things, they have announced a series of unpaid furloughs for this summer.

For scheduling purposes, they’re being treated as extra (but, of course, unpaid) vacation days: the office will remain open, and individual employees will take their furloughs at different times. My question is, how do we reconcile the concept of the “unpaid furlough” with salaried employees who are usually on call for emergencies? Under normal circumstances, I’m happy to investigate, say, why the email stopped working at 4PM on Saturday. (Well, not “happy,” but . . . you know what I mean.) I’d be considerably less amused to get a call on a day when I was “furloughed.” The most obvious answer is to schedule things so that there’s always somebody on call who’s not taking their furlough (just like we do for vacations); and we will of course. But the reality is we’re a small shop, and not everybody knows everything about everything. Murphy’s Law suggests an inevitable situation where the “right” person to solve a problem will be on furlough. Looking forward to your Evil reply!

One of the definitions of a salaried, or exempt, employee is that they are paid for the job, not by the hour. For that reason, being on call is not a big deal for a salaried employee. (By not a big deal, I mean legally, not emotionally or in relationship to a work life balance.)

But, you’re in a conundrum. I’m not a lawyer, nor do I pretend to be one. I’m sure someone will jump in and let us know if my advice is problematic. At least, I hope so.

Anyway, here’s my advice: Let management know that if a member of your staff gets called in when they are on furlough, they will have to be paid. No ifs, ands or buts.

I think you could probably safely pay by the half day, but to be safe you may want to pay by the day. I don’t think you can say, “hey it was a 15 minute phone call, we’ll pay him for 15 minutes worth of work.” That would be dangerously close to declaring someone to be an hourly worker, which would make that person eligible for overtime in the future. I don’t think you want to do that.

Try your best to not have to call those people who are on furlough, but let everyone know that you will have to pay if they are called in.

Vacation, by the way, is different because they are getting paid on vacation. At least, that’s my opinion.

Hopefully everyone will be able to pull together and the company will do better, so this won’t be necessary again.

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Dirty Jobs

by Evil HR Lady on April 23, 2009

Laurie at Punk Rock HR posted this video of Mike Rowe. She said she hoped it would go viral, so I feel like I’m doing my part.

It’s brilliant and I agree with him. We get so caught up in looking for that perfect job, that perfect career, the perfect boss or perfect career path, that we’ve forgotten the value of hard work.

It’s twenty minutes long, but well worth your time. Watch it.

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Please don’t give me a break

by Evil HR Lady on April 22, 2009

Is there a law where an employee and a company can agree to take a lunch after 8 hours and not six?

California Law states after 6 hours employee must receive a break. Can employee & company agree to change this? Please help.

Funny you should ask. My very favorite legal site, Overlawyered just posted an interesting story about a United Airlines Ticket Agent who took a break. He blames the lawyers.

I love to blame lawyers. (Except for my lawyer brother, who gives me free legal advice. He’s blameless.)

This really is a situation where the company’s hands are tied. (Presuming you are correct on California law, that it is six hours and not something different.) They can’t authorize you to skip your break.

In theory, this is because big, bad companies would force you to work until you dropped so the big good government steps in and saves us all, except for the poor couple trying to catch a flight to Oregon. (Now, let it be said, that to the best of my knowledge there is no law stipulating that a break must be taken at a precise time, just within a certain window. If United was scheduling breaks at the last possible moment then they are as stupid as the Consumerist story makes them out to be. Further more, the ticket agent was incompetent. Yes, she’s required to take a break. No, you don’t argue with the customer. When it became clear that he was going to argue, you say, “I’m sorry, sir. Let me get someone who can help you.” And then you walk away and get someone and then go on your break.)

I’m not a big fan of government regulations on such things. I think that there are enough people, like you, who would prefer to work 7.5 hours straight and then go home, rather than working 5 hours, take a half hour, unpaid break, and then work 2.5 more hours. I used to beg to do that, but to no avail, back in my hourly days. I think that we should acknowledge that at will employment runs two ways. If I don’t like how a company is treating me, I can walk away from it. Further more, if they don’t want to accommodate my break prefences, they can terminate me. We’re all grown ups here.

Yes, I know about how people were treated in the coal mines and meat packing plants and I’ve read all about the factory fires. I think we’ve moved a little beyond that when we’re micromanaging how breaks must be taken.

But, in short, no you can’t. Take your break. Bring a good novel. And furthermore, don’t work when you are on break. It causes the same problems.

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How to get hired?

by Evil HR Lady on April 18, 2009

A reader sent me an e-mail and a link to Jason Calacanis’ article: How to Hire–and Get Hired in a Recession.

Calacanis advises the candidate to make it clear that you are a super hard worker. You keep up with the industry trends. You give your all to your company. He gives 8 questions he likes to ask.

1. Do you live to work or work to live?
2. Do you consider yourself a workaholic? Do you think there is anything wrong with being a workaholic?
3. Are you able to turn it off at 6 p.m. and on Friday for the weekend? You don’t get obsessed by work, do you? (Trick question!)
4. Do you consider yourself a balanced person?
5. How would you feel if we all needed to come in on the weekend to make a deadline?
6. How would you feel if this happened two weekends in a row?
7. It’s a tough time right now, and we’re super short-staffed—how would you feel if I
asked you to cover for [insert job lower than candidate’s experience] when they’re on vacation?
8. Speaking of vacation, do you bring your BlackBerry and laptop with you to check in? Or do you like to unplug completely?

He gives examples of ideal answers to questions: (“Finally, I’ve made a philosophy of not leaving the office until my boss does…. I think that’s the honorable thing to do.”)

Readers, are, predictably, in totally disagreement. He’s described as pompous and out of touch.

My reader, however, agrees with this position and asks me: “Am I crazy for appreciating the sense Jason makes in his article, or is he draconian as the readers make him out to be?”

My answer is yes. Jason makes sense and he is draconian. (And yippee for the chance to use the word “draconian” in a post. Twice. Although technically one is in a quote.)

Now, first of all, I want to work with hard working people. I don’t want any slackers on the same team I am working on. I’ve had slackers and they are not appreciated. However, getting in before everyone else and leaving after everyone else does not make one a non-slacker.

Jason is confusing “hard work” for “long hours.” He places a lot of emphasis on face time.

I think face time is important to your career. I also think results are more important. Yes, there is a correlation between lots of hours and high performance. But it’s just a correlation, not necessarily a causation. We all know people who put in a ton of hours, but are slow in their actual work. They take too long on the wrong things.

I had a coworker once who would spend numerous hours writing detailed criticisms on the formatting of reports. (Change this to font sized 12. Increase the thickness of the line at column G. Widen column H by 2 points. Highlight row 4, except for column B. And so on and so forth. A one page Excel report could have 25 items she wanted changed. None of them substantive.) She worked long hours. But, writing up these criticisms (which changed every month, so you could never use last month’s criticism as a guide for this month’s report) took longer than making the changes herself ever could.

She was about as inefficient as the day was long. Yet, she could have answered the questions to this man’s questions “correctly” and received a job offer. And she would have been the first in and the last to leave and gotten no more than half the work done that an efficient employee who worked an 8 hour day did.

My point in all of this is that Calacanis is right, and Calacanis is wrong. Hard work is important. Smart work is important. Philosophies of work are important. I DON’T want employees who feel like they are tethered to their blackberries/laptops on vacation. I DO want ones that take a break. But, I also do want to be assured that if a crunch comes, everyone will be willing to come in on a weekend.

That’s a culture thing. But, if crunches keep coming, well then, that’s bad management. So, no I wouldn’t be willing to come in every weekend.

One more note: In his example he mentions the person applying for a VP position. In my experience, smart work and long hours are both required to rise to that type of position. So, yeah, sacrifice of other things are necessary for success at that level. I don’t want to be a VP of anything, so there is my bias.

I bet the readers who objected so strongly don’t want to be VPs either. At least, they aren’t willing to pay the price.

Fortunately, companies function best when not everyone wants to be the boss.

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Fraternization Policy

by Evil HR Lady on April 17, 2009

Do you have anything on the above, or work rules regarding supervisors and people that report to them having a friendship outside of work. It is becoming disruptive to the workplace.

I think anti-fraternization policies are really difficult to write and police. How do you get people to stop being friends? And if you don’t want supervisers to be friends with their underlings, then you can’t promote from within, or you have to say, “If we promote you, you won’t be able to socialize with the people you used to socialize with.” Except you’d say it with better grammar.

What you are in need of is some supervisors with a clearer understanding of what is expected of them. You need to manage the results. You need to talk to the supervisors about how favoritism (presumably that’s the problem here) is affecting the entire team. You need to train your supervisors how to manage.

Very few companies actually do that. Heaven knows my management training was weak. (New boss: “Hey, here are some people to supervise!” Me (outloud): “Great. I truly believe I have a lot to share and I am looking forward to taking this next step in my career.” Me (silently): “Crud. I’ve never even had a formal performance review. Now what?”)

I wouldn’t focus on the friendship part. I would focus on the measurable results part. Make sure that your supervisors have good managers who have set quantitative goals for them. Make sure they understand that they need to change whatever behavior is causing the problem.

If they can’t do it, they should be removed from their supervisor positions, either through demotions or firing. The latter is probably perferable, because if you’ve got anxiety in the ranks now, putting a disgruntled supervisor back in with his former underlings will not be pleasant.

Part of the job of managing people is realizing that you get paid more because it is harder than it looks. This sometimes means changing your relationships with others. Focus on the results and the relationship problems will be solved.

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A Really Bad Idea in Firing

by Evil HR Lady on April 15, 2009

If you’ll recall, I’m not a lawyer. Still, my HR legal senses perked right up upon reading about a proposed new show on Fox: Someone’s Gotta Go.

In this fun new reality show, real employees at real companies get to vote one (or more?) of their co-workers into unemployment land. Oh sure, it sounds like all sorts of fun. As the linked article points out, not all employment rights are waivable in advance, so who knows how this is going to work out.

Perhaps the “package” given to the terminated employees is so fantastic that the other employees will be fighting to be laid off. But, that would not make it a good reality show. It would just turn into “who can be the most obnoxious” and then it would be like Big Brother or something.

Gah. Do these television producers ever, ever, ever consult their lawyers? And legal aspects aside, being laid off (note, not fired for cause) can be extremely painful. Putting that on television is just down right rude.

I know, some people will do anything for their 15 minutes of fame. I bet Fox is counting on the fact that we’d all love to watch such procedures.

I bet they are wrong.

Have you ever noticed when watching an action movie in a theatre that the patrons silently munch on overpriced popcorn (with extra butter-ish!) while heads are exploding and limbs are being chopped off by airplane propellers, but see someone get their fingers slammed in a car door and everyone cringes. Why? Because we have no experience with our own heads exploding. (If we did, we wouldn’t be watching the movie as there would be nowhere to put the popcorn.) But, we’ve all slammed our fingers and we KNOW that hurts.

Likewise, the things that take place on Survivor or the Amazing Race-or even the Apprentice-are so far from our reality that we can watch them without cringing. But, getting laid off is something that hits too close to home. Too many of us have experienced it ourselves. The rest of us know someone who has been through it. Most of us fear that it could happen to us at some point. Those that don’t fear are in an advanced state of denial.

I predict viewers will find it too painful to watch, lawyers will find it too tempting for law suits and that Fox will bag the whole thing.

(Via Overlawyered.)

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Happy Tax Day!

by Evil HR Lady on April 15, 2009

To all you accountants out there, I hope you take a few days off.

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FMLA Goof

by Evil HR Lady on April 13, 2009

I’ll try and make this quick and to the point…….I screwed up! I had completed the Employer Response to Employee presumptuously and this employee has not worked for us for a year. Technically, he is not eligible for FMLA. However, he has seen the approved form (don’t think he has a copy of it). My question is……am I able to shorten the length of the FMLA time to maybe 6 weeks instead of 12, since he really isn’t eligible at all for this? I know……VERY STICKY situation since I’ve already approved. HELP!!!

I’m happy you’ve admitted to your own screw up and not blamed anyone else. So sorry that you will never be in senior management.

Anyway, here are my usual disclaimers. I am not a lawyer. I am not an FMLA expert. I’m not even employed.

But, I think this is a case where you say, “Bob, when I filled out the paperwork previously, I forgot that you hadn’t been with us one year yet. To be eligible for FMLA, you have to have worked here for at least a year. Therefore we can’t grant you FMLA.”

Over and done.

Now, not all leaves have to fall under FMLA. Surely you have a leave policy for non FMLA leaves? (Tell me you have a policy. It would warm my little evil heart.) Grant him whatever leave he would be eligible under that policy.

If you have no policy, you can do whatever you want, as long as you are consistent and fair. You can grant 6 weeks, or 12, or 26 or whatever. Just make it clear that this is a leave of absence that is not subject to the rules of FMLA. If you continue to carry his insurance during the leave, it’s doubtful he’ll care about the difference.

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