April 2014

Maria Escriba worked in a Foster Poultry Farms, Inc. (Foster Farms) processing plant in Turlock, California for 18 years. She was terminated in 2007 for failing to comply with the company’s “three day no-show, no-call rule” after the end of a previously approved period of leave, which she took to care for her ailing father in Guatemala. Escriba subsequently filed suit under the Family and Medical Leave Act (FMLA) and its California equivalent. The parties disputed the characterization of Escriba’s request for a two-week period of leave. Escriba claims that her termination is an unlawful interference with her rights under the FMLA. Foster Farms responds that, although Escriba provided an FMLA-qualifying reason for taking leave, she explicitly declined to have her time off count as FMLA leave. The district court characterized the case as a classic “he said, she said” matter focused on what Escriba told her supervisors. Escriba’s claims therefore proceeded to a jury trial in 2011. The jury returned a verdict in favor of Foster Farms.

In reading the case you get the clear impression that poor communication was involved. To begin with, the employee’s primary language was Spanish. Whether she was confused or was mis-understood, this entire fight could have been easily avoided using an FMLA leave process. This was not a sophisticated worker and she had a legitimate right to use FMLA. My guess is that at the time she was looking for paid leave only because that was all she could afford. When she passed the agreed upon non-FMLA leave of absence period she failed to notify the company about her expected continued absence. Not surprisingly she was terminated under Foster Farms’ “three day no-show, no-call rule”.

Lessons Learned:

1. Make sure somebody can clearly communicate the legal obligations surrounding any leave request to the employee. Without proper training it is hard for a supervisor or manager to be that person. Language barriers can also get in the way.
2. Make FMLA and other leaves a process and not an event. Taking a checklist approach is a must (which is why we have an FMLA Checklist on HR That Works).
3. They could have been compassionate and not fired somebody already stressed about a relative’s health. The FMLA and your policies are only the ground floor of obligation to another human being. Instead of proactively assisting the employee and asking how they can be of help, they fire her prompting a lawsuit; the cost of which I am sure has already exceeded her annual income in expense. If the employer calls that “winning” I disagree with their definition of it.

What happens to commissions due a salesperson if they are terminated or quit? That was the question that Mark Dietrich and his former employer Bell, Inc. have been fighting over in Michigan Federal Courts since he was terminated in May of 2011. In the case the court ruled the contract entitled Mr. Dietrich to commissions on accounts he procured for two years from each customer’s contract start date. The case of Dietrich v. Bell identifies many of the issues involved in sales compensation agreements and gives yet one more reason why you should have these agreements reviewed by an attorney.

Here’s a summary of my employer tips gleaned from the case:

1. Know what laws apply to sales compensation agreements in your state. For example, in this case Michigan’s Sales Representative Commission Act was at issue. Your BNA state law summary can help.
2. There is a difference between lead generation, customer procurement and a sale. If the salesperson generates a lead are they entitled to all the sales anyone makes from them? Or are they only entitled to a commission on direct sales they have made?
3. What does it mean to make a sale? Did they do all they needed to do on their part? Is the commission conditioned on actual payment? What about returns or other offsets?
4. How long are they entitled to commissions? For all subsequent sales or renewals?
5. How involved are they after the sale? If there is an ongoing service obligation that matters in terms of post-termination compensation.
6. Make sure you have all the above in a signed agreement. As mentioned by the court “the contract says nothing regarding termination; it provides no express answer to how the parties intended to terminate their relationship.”

Note this was a difficult decision for the court as one of them dissented, agreeing with the underlying decision of the District Court that no wages were due.

People are losing jobs to robots and technology at an accelerating rate. Have you used one of those self-serve checkout stands lately? One was installed at my local CVS only 3 months ago. Awkward at first but seems like old hat now. The manager there told me the new system allowed him to let two full time clerks go. Two jobs lost to robots and their technology that will never reappear. Here’s just some of the other jobs that are suffering the same fate as retail clerks:

Pharmacists

Soldiers

Reporters

Drivers

Fast food workers

Assembly workers

Bank tellers

Secretaries

Stock traders

Warehouse workers

…and there is more

Technology alone changes the employment landscape. Objects like the iPhone have the consequence of laying off Kodak workers, as well as workers in the mapping, printing, alarm clock and record industry.

I recently listened to an interesting podcast (all Radiolab podcasts are interesting!) about work in a shipping warehouse for online mega-providers, such as Amazon. If you thought stop watches were banned in the workplace at the beginning of the last century, guess what – they’re back! Technology, along with its gamification, is reducing worker output to a competitive logarithm using the most minute of performance indicators.

Years ago Buckminster Fuller (otherwise known as “Bucky”) surmised that the rise of computers and technology would bring use to a place where it is inefficient to have full scale employment. It would actually be cheaper to pay people to stay at home.  And we are getting there. Even in a “good” economy we have 7% unemployment. And we are being asked to pay for those folks who have to stay at home…because there are no jobs. This has more to do with the macro-economics of production than it does anything a politician can influence.

While Bucky believed that less is more, most folks don’t think that way. In their idleness they will want to be serviced, entertained and otherwise cared for, by a growing service class economy. So the fantasy of growing the middle class back to where it was before all these technology changes is a pipe dream. A political football divorced from reality. There will be a continued division between highly paid knowledge workers and low paid service workers. Sooner or later we will end up paying service workers to stay home or do some form of public service.

As we march forward you will either be a highly paid knowledge worker who cannot yet be replaced by a machine or a low paid service worker who cannot yet be replaced by a machine. That’s true for your kids’ future too!

FYI – Looks like John Henry would be out of a job today. Now trains lay their own tracks http://www.wimp.com/traintrack/

Mindfulness is fast becoming a buzzword. Long the bastion of the new agers, it is showing up in everything from the Wall Street Journal to the World Economic Forum. Mindfulness has been championed as a methodology for present moment awareness. Awareness that is neither judgmental nor critical… but simply aware. There is a growing body of evidence that mindfulness lowers stress, combats fatigue, helps address substance-abuse, eating problems, sleep problems, pain and weight problems as well. Bottom line is it can be an antidote either in part or in whole to a wide range of maladies. Mindfulness has an upside to it as well. Many of my most creative and innovative thoughts have come when I’ve rested in the silence of mindfulness. In a sense, the space between the thoughts.

Mindfulness can be practiced in many ways. One of the more traditional ones is meditation. So is yoga, walking, lying down, breathing and other activities. Mindfulness is less about what you are doing than it is who you are in that moment. Hospitals, corporations, wellness programs and coaches are all expanding the use of mindfulness as a valuable practice.

Much of mindfulness has to do with our intention in the moment. It’s very hard to be mindful when you’re running 75 MPH or trying to control a situation. In fact, they are opposites. Mindfulness is about “being” with the situation. If your intention into going into a meeting is to see how much money that prospect can make you then all they will be is a tool in your financial story. However, if your intention when going into a meeting is how can you be of service to another human being the outcomes can be profitable at a whole other level.

If you go to an executive meeting with the intent to see how see how much budget you can get for your team you’ll have a different outcome than if you go into the meeting with the intention to do what is in the best interest the company and its customers.

If I was in HR I would begin to familiarize myself with mindfulness practice, if you haven’t already. I encourage you to use it for yourself first so that you can fully understand its benefits. Then you can champion it to others with integrity. Here are number of resources where you can get additional information about mindfulness:

• The Institute of Noetic Sciences http://noetic.org/
• Mindfulness Magazine www.mindful.org
• Be Here Now by Ram Dass
• The Power of Now by Eckhart Tolle
• The Five Keys to Mindful Communication by Susan Gillis Chapman
• Peace Is Every Step: The Path of Mindfulness in Everyday Life by Thich Nhat Hanh

A final note: mindfulness is not about crystals and New Age foofooness. In fact, it’s been practiced for centuries worldwide. While it might not all have always been labeled as being “mindful” its benefits have been enjoyed by millions.