April 2008

Use this form to assist with pre-hire physicals. HR That Works users should also read the report on Pre-Employment Medical Examinations.

James Breneisen worked at Motorola Service Center in Rockford, Illinois. During his nine-year career at Motorola, James had previously taken leave at least a dozen times without incident. However, the thirteenth time he took leave, his new supervisor transferred him to a new, more strenuous job because his prior position was eliminated and his tasks distributed to other employees. James worked in the new position for eight days before taking leave for esophageal surgery. After the surgery he complained to his supervisors that the new position was a demotion, even though his supervisors stated it was a lateral move. He eventually applied, and was accepted, for a new position where he found himself under a very difficult boss. This treatment caused him to suffer from severe stress, high blood pressure, and stomach reflux. Soon afterward he took another medical leave to undergo a total esophagectomy. He filed his lawsuit approximately one month after his surgery. According to the court, “The test for equivalence is strict. Jobs are only ‘equivalent’ within the meaning of the FMLA if they entail ‘equivalent employment benefits, pay, and other terms of employment.’ For instance, the jobs must involve the same or substantially similar responsibilities.” Simply receiving the same pay and benefits is not enough.

Motorola’s argument that his job was eliminated and distributed to other employees also created an issue of fact. According to the court, “When an employer claims that the employee’s position would have been eliminated even if the employee had not taken leave and provides some evidence to that effect, the employee must convince the trier of fact that his position would not have been eliminated had he not taken leave.” In this case, James provided evidence that his position would not have been eliminated if he had not taken leave.

This case came down to whether the new position was the “equivalent” of his former one. According to the court, “Motorola had no business justification for eliminating his position apart from the need to work through the fact he had taken leave. An employee is entitled to … reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.”

Read more about Breneisen v. Motorola here.

There is a lot of misinformation lately where attorneys and employer groups are suggesting employers not use character assessment tools such as a DISC, Profiles International, Kolbe, ZeroRisk HR, McQuaig and so on. The concern, of course, is that they might initiate some type of discrimination or breach of privacy claim. In reality, there have been less than a handful of claims emanating from the use of character assessment tools. A number of years ago a Target Department Store in the San Francisco Bay area was sued when they combined an MMPI exam (a psychiatrist tool) with their own handmade questions such as “Do you believe in pre-marital sex?” Very simply, if a company is that stupid, they deserve to get sued! However, we have yet to see one of the major assessment tool company sued successfully under a discrimination type claim.

Of course, any tool that is used as a pass or fail mechanism should be reasonably related to the job at hand and validated over time. These tools should also not have a “disparate impact” on minority or other groups unless a legitimate business interest can be shown for the impact.

What the employers groups and attorneys aren’t telling you is that these tools, although they could pose a slight risk on the hiring side, are very good at helping you not to hire the wrong employee. It’s always been our belief that the greatest risk is in not using these tools and relying on our subjective views when analyzing someone in the interview process. Of course, those attorneys will gladly manage your wrongful termination claim and will face no liability for recommending that you not use assessment tools.

Every company we know that uses these tools swears by them and agrees with the proposition that they are better at telling you who not to hire. Almost to the company, those who hired against the recommendation of the tool ended up paying a price in the process.

Understand this: Risk management is not about eliminating all risks; it’s about choosing your risk exposure. The greatest place to manage your risk is in the hiring process. By not using these tools, you place a greater risk of bringing on a poor employee and eventually facing a claim down the road. Of course, if you remain that concerned about it, get some advice from your attorney, but make sure to measure it against the upside that these tools represent.

Additional note: Try a wide variety of these tools to find out which one most closely predicts good job performance. Remember that the EEOC’s Uniform Guidelines on Employee Selection Procedures (designed in 1978) requires the use of the “four-fifths rule.” The rule provides that a “selection rate for any race … which is less than four-fifths (or 80%) of the rate for the group with the highest rate will generally be regarded by the [EEOC] as evidence of adverse impact …”

Learn more about the EEOC’s standards here.

Our financial, marketing, sales, and operations are run by a technological interface. Programs such as QuickBooks, Excel, Great Plains, GoldMine, ACT, Sales Force, Daptiv, and so on, help govern these operations from beginning to end.

There have been numerous technology platforms introduced to the HR equation: Payroll, time and attendance, workforce planning and management, online recruiting, benefits administration, compliance management, performance management, compensation management, training management, enterprise resource planning and succession planning, and more. Human resources information systems (HRIS) are making an effort to consolidate these various HR disciplines.

For many years now, many large corporations have relied on companies like PeopleSoft, Oracle, and others to assist with the technology interface. Smaller companies have relied on programs such as Sage/Abra, HR Office, UltiPro and offerings by payroll companies such as ADP, PayChex, and Ceridian. Now, companies with as few as 25 employees are starting to look at the cost/benefit of these HRIS systems.

The primary benefit of any technology is the ability to consolidate data, analyze it, change it, and report it. It also reduces duplication of effort and inherent error. As we move forward, these human resources information platforms will be offered by payroll companies, insurance and benefit providers, PEOs and ASOs, as well as directly from vendors. Chances are, you’ll be able to choose from a suite of integrated options.

The question in this environment remains, “Will the effort be worth it?” In our experience a lot can go wrong with these technologies. The payroll and time and attendance tie-in are especially important. Assuming all the bells and whistles work properly, the next question is “Who’s going to be excited about using the program?” Most HR people don’t run toward technology; they run from it! It’s simply not their thing. Others will be dragged forward realizing that it will generate some efficiencies for the organization, and they’ll tend to use these programs at their lowest common denominator.

For example, most HRIS systems advertise how many different reports you can pull — sometimes hundreds or more. Chances are however, most HR people don’t pull any reports and don’t use the program strategically. They tend to free up some time resulting from open benefits enrollment and time keeping, but they’re not used properly to help hire, manage performance, conduct training, and deal with compliance.

It is our belief that strategy trumps technology every single time. We give this example: A great sales letter is of more benefit to a company than any CRM program. A great sales letter embedded in a CRM program which helps foster discipline and commitment is a sure winner. Strategic thinking about how to attract great employees is more important than the technology interface you use for the onboarding process. The strategy that you use to retain employees is far more important than any report you will generate about retention. So, the future challenge of these programs is not only that they consolidate all aspects of HR and do so without a glitch, but that they start being used at a strategic and not just a technological level. This will require a disciplined commitment, training, and intensive customer support. In our view, we’re not there yet.

In conclusion, before you get trapped by the promise of new technologies, be very clear about what type of impact they can have on your organization, and question if there are more strategic activities you can engage in that will trump the technology ones.

The case of Verga v. United Airlines started off asking this question: Do the disdainful reactions of a supervisor and co-workers to an employee’s mistreatment of them constitute “actual events of employment,” for which the employee can obtain Workers Compensation benefits, to compensate for the psychological stress that the employee experiences because of those disdainful reactions to her inappropriate conduct? In other words, can they cause the problem and then still get paid?

In answering this question the court stated the following:

• Although the Workers Compensation system generally provides benefits regardless of the fault of any party, there are limits when an employee intentionally causes his or her own injury. To allow an employee to harass co-workers and, then when they respond unfavorably, claim the stress-related injury to the employee’s psyche would increase, not reduce, Workers Compensation claims and create the potential for abuse of the system.
• An employee’s false perceptions of the working environment do not constitute actual events of employment coverable by the Workers Compensation Act. Mental disabilities are compensable only when arising out of actual events of employment, not unfounded perceptions such as Verga’s claim that she was harassed and persecuted.

This decision is consistent with those found throughout employment law. Hypersensitive claimants, whether for Workers Compensation stress, sexual harassment, discrimination, or other maladies, are viewed as unreasonable by the courts. As the court stated, “In sum, the evidence established that Verga had a very low frustration level and abused her co-workers when they did not meet her expectations. Although her co-workers reacted with disdain in their efforts to change Verga’s behavior, their disdain was relatively benign. Verga was the aggressor, and she created the negative work atmosphere that she asserts caused her psychological injuries.”

Read about Verga v. United Airlines here.

Finding out if someone is truthful is an art, not a science. The closest truth detecting machine on the market, a polygraph, is illegal in the hiring process. Imagine if in the future there were an invention which detects truthfulness 100%, as forecasted in the book written by the futurist James Halperin, The Truth Machine. Its consequences were amazing and worldwide. A book worth the read.

But that’s not where we are today. Not only is getting the truth a challenge, but getting very clear about the needs we’re hiring for and the employee fit is an equal challenge. People can be very truthful and still be a wrong match.

If there ever were a truth machine, I would be OK with limiting the inquiry to the following 10 questions:

1. Is everything you placed on your job application and in your résumé accurate?
2. Is everything you stated in your interview accurate?
3. Is there any significant information about your job history not disclosed in the hiring process that would concern a reasonable employer about your qualifications?
4. Have you ever been convicted of a crime?
5. Do you do drugs?
6. Is there anything you’re currently aware of that would prohibit you from working this job for at least three years?
7. Do you consider yourself lucky? (If they say no, do you really want them working for you?)
8. Do you truly want to be a great employee?
9. Did you meet the attendance requirements at your previous job?
10. After a conditional job offer is made: Are you currently under any physical or medical limitations which would substantially limit you from performing the physical and mental requirements of this job?

Now let’s play this game in reverse:

1. Is everything you’ve told me about the company in the hiring process accurate?
2. Is there any reason that you currently know of that if I perform well I might not be able to stay in this position for at least three years?
3. Have you been honest with me about the opportunity for advancement at the company?
4. Is there anything about your financial condition that would cause a reasonable job applicant some concern?
5. Do you care about your employees?
6. Are you serious about the statement that the company does not tolerate harassment or discrimination?
7. Is this a fun place to work?
8. Do you pay competitive wages, salaries, and benefits?
9. Have you done a proper job analysis to make sure you are clear about the skills and abilities necessary for me to be successful in this position?
10. Is there any other significant information not disclosed to me which would cause a reasonable job applicant concern?

Fact is, both applicants and companies lie in the hiring process. Getting to the truth is the Art of Hiring!