September 2011

One of my favorite books is The Four Agreements by Don Miguel Ruiz. I’ve read it a couple of times and listened to the audio book more than once. It offers unique insights. Ruiz believes that we have been “domesticated” — to the extent that we base much of our thinking and activity on the story that we’ve been handed or have developed without full awareness. To live to our fullest potential, we need to avoid disempowering agreements by empowering ourselves through the Four Agreements.

I’d like to give my insight on how each one of these agreements can affect the HR function.

1. Be impeccable with your Word. It’s a gift from God. How we use our Word defines our lives. It’s not just about what we say, but who we are. We can use our Word with others as well as with ourselves. Unfortunately, such factors as fear and greed can have a negative impact on our Word.

How can we be impeccable with our Word when it comes to HR? Begin by clarifying expectations for ourselves. Do we really want to be great HR executives? Have we committed our Word to this fact? Do we have the integrity to follow up and keep the promises we make to ourselves and to others? Are we willing to expose those who are less than willing to have integrity?

2. Don’t take things personally. Ruiz tells us this is the main reason for conflict at home, work, and on the world stage. It dovetails with my scenarios concerning Victims, Villains and Heroes. When we play Victim, we can’t wait to take things personally. When we take things personally, there’s always the potential of turning a molehill into a mountain. Of course, the person that we attack or blame will begin with their justifications, launch a counter-attack — and then the drama really begins! Here’s my question: Where are you taking things too personally? Are you taking the lack of support for the HR department personally? Do you take things the owner or managers say to you personally?

3. Don’t make assumptions. You know what the word “assume” means. However, we’re assuming all the time. It would be hard to run your life without making some assumptions along the way. For example, we assume that when we step on the gas that the car will move forward. We also assume that when the light is green nobody will be traveling through the intersection from the cross street. If we move blindly forward with our assumptions, we might be hit by someone who ran the red light. We have to watch the assumptions or stories that we place on people or circumstances — often without even knowing them. I have an assumption about this person, and they’re upsetting me by not living up to the assumption. As the fox said in Aesop’s fables, “I was just being a fox.”

Where do you make too many assumptions? Do you assume that you have your HR act together? Do you assume you have the best possible employees on every seat of the bus? Do you assume that the recession is now history, and we won’t have to worry anymore about layoffs or RIFs any time soon?

4. Do your best. This is all we can ask of ourselves and anyone else. Do your best and then let go. Of course, the question is are you doing your best or is something else happening? Are you really making an effort to improve your value to the company or are you stuck on auto-pilot? Are you willing to take a risk and do something new, or will you remain rooted in your comfort zone? Doing our best requires us to stretch ourselves and make mistakes, like toddlers who fall down repeatedly before they learn how to walk and run. So, here’s my last question: Where can you honestly say you’re not doing your best? Where are you trying to ignore, bury, or deny the fact you’re not giving it your best? How will you feel when you’re finally “found out” about this known area of weakness?

Do yourself a huge favor and pick up a copy or audio book of The Four Agreements. You’ll be glad you did!

For an employer embroiled in a discrimination lawsuit, summary judgment is usually the last opportunity to get the case dismissed before going to trial. A decision by the District of Columbia Court of Appeals demonstrates how lying about the reason for an adverse employment action can torpedo an employer’s defense to a claim of discrimination on summary judgment and allow the case to proceed to trial.

The Case: In Colbert v. Tapella, a 30 year-old African American female employee of the federal Government Printing Office sued her employer for race and gender discrimination after she was passed over for two different promotions that were filled by white males. The decision-makers for the positions did not interview the candidates. Instead, they evaluated each on their written applications, respective qualifications, responses to a questionnaire, and any personal knowledge of the candidates’ work performance. During the initial EEO investigation, one of the decision-makers told the investigator that he did not select the plaintiff, in part, because she “wandered.” When the decision-maker was later deposed, he admitted that he did not tell the truth when he said that the plaintiff wandered. Despite the employer’s attempt to downplay the admission, the decision-maker’s stated rationale for passing over the plaintiff was called into question.

The Ruling: The D.C. Circuit overruled the district court’s grant of summary judgment in favor of the employer, finding that the lower court erred when it required the plaintiff to prove both that the employer’s reason for not promoting her was pretext, and that race and gender bias was the actual reason she was passed over. The Court of Appeals held that “a jury can conclude that an employer who fabricates a false explanation has something to hide; that ‘something’ may well be discriminatory intent.” Although a plaintiff cannot always avoid summary judgment by showing that the employer’s explanation to be false, the evidence in this case demonstrated that the employer’s proffered non-discriminatory reasons for the non-promotion was unfounded. The court found that the evidence in the record did not support the decision- maker’s statements that the plaintiff was less qualified and lacked the same experience as the white male applicants who were selected for the positions. The Court further noted that there was insufficient, independent evidence that no discrimination had occurred. Instead, the decision-maker’s lie about the plaintiff wandering, his lack of knowledge about the plaintiff’s actual experience, and the employer’s record of failing to promote minorities, provided enough evidence of discrimination to defeat the employer’s motion for summary judgment.

Lesson Learned: An employer must base its reason for taking an adverse employment action on a legitimate, non-discriminatory reason that should be supported by facts and not change over time. Changing the articulated reason for taking the adverse action only reveals that it might not have been the real reason for the action. Bear in mind that the people who evaluate your responses might have a different perspective from you. What you might see as a benign misstatement can be perceived by a jury as evidence of a malicious, discriminatory act. It might be trite, but honesty is always the best policy.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

The U.S. Court of Appeals for the Eighth Circuit has ruled that an employer had legitimate, non-discriminatory reasons for laying off its three oldest employees through a reduction in force (RIF). The Court found that the employees, who sued their employer for age discrimination under the Age Discrimination in Employment Act (ADEA), failed to prove that the employer’s stated reason for the RIF and the criteria it used to determine which employees to let go were pretextual.

The Case: In Rahlf v. Mo-Tech Corp., Inc., after a manufacturer of molds for the automobile, medical, consumer products, and computer industries laid off its three oldest employees as part of a RIF, the employees sued for age discrimination under the ADEA. The employer claimed that the RIF was necessary due to a change in client needs and anticipated reductions in workload and profitability. The employer further explained that technological advances in the mold-making process reduced the company’s need for manual mold makers such as the plaintiffs. To determine which mold makers to lay off, the employer ranked each based on several factors, including their proficiency with the new computerized manufacturing process, general mold-making efficiency, and management’s personal knowledge of each employee’s work performance. Based on these criteria, management agreed that the three plaintiffs should be let go.

The Ruling: The Eighth Circuit upheld the district court’s grant of summary judgment in favor of the employer, rejecting the plaintiffs’ claim that the employer’s stated reasons for the RIF were meant to conceal the real, discriminatory reasons for their terminations. The employees argued that the RIF was not necessary because within a year after they were fired, the employer hired five new employees. The court, however, noted that none of the new hires were mold makers. Rather, the new employees filled lesser skilled positions or were skilled in the computerized manufacturing process. The court also held that the fact that the remaining mold makers were busy and the company’s sales increased after the three employees were terminated did not support an inference that the RIF itself was pretextual. The court ruled that an employer does not have to demonstrate financial distress to justify its RIF decision, and then rejected the employees’ attack on the employer’s methods to determine which mold makers to terminate.

The employees contended that the employer’s failure to review positive performance evaluations and its reliance on the subjective evaluations of management were evidence of pretext. However, the court noted that given the small number of mold makers considered for the RIF (11) and management’s close involvement with the daily operations, subjective knowledge of each employee’s work performance and skills was relevant to the ultimate termination decision. Moreover, the employer relied on both objective and subjective criteria. The company measured each employee’s productivity and profitability objectively, based on whether hours budgeted for particular jobs were met or exceeded. The employer also consulted a computer program that assessed each employee’s performance. As for the employer not considering positive performance reviews, the Eighth Circuit held that it was not required to consider them in making its RIF decision because it had many other relevant factors under consideration. Finally, the court dismissed the employees’ argument that the employer provided inconsistent rationales for the layoffs, where there was no evidence to support the claim. Indeed, the Court of Appeals found that the employer maintained consistently that the reason for the RIF was shifting client needs and an anticipated decrease in workload and profits.

Lesson Learned: Because reductions in an employer’s workforce often give rise to litigation, it’s important to establish legitimate, business-related reasons for the move in advance. Although using objective criteria provides the best defense against a discrimination claim, the Rahlf decision shows that subjective factors can also be relevant. Whatever your reasons for doing an RIF, identify them clearly and base them on documented facts in case the reduction leads to litigation. See the RIF Checklist and Report In HR That Works.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

Things can look great on the surface. However, dig a bit deeper and all of us share at least some of these fears:

• The fear that we won’t live up to our expectations of ourselves.
• The fear that we won’t live up to expectations of someone else.
• The fear that while we are successful, we’re doing the wrong thing. As the saying goes, we might have climbed to the top of the ladder, but it’s leaning on the wrong wall.
• The fear that no matter how successful we might be now, it’s still not enough.
• The fear that we aren’t always a good person.
• The fear that we aren’t attractive or well liked.
• The fear that we’re disconnected with ourselves.
• The fear that we’re disconnected from family members and other loved ones.
• The fear that there has to be more, but we’re not sure what it is.
• The fear that we might fail.
• The fear that our “secret” might be disclosed.
• The fear that we have to do it all alone
• . The fear that we’re exhausted and out of balance.
• The fear that people will leave us.
• The fear that we’ll waste what we’ve accomplished because we have no loved ones with whom to share it.
• The fear that we’re out of control.
• The fear that our time and health are slipping away.
• The fear that we’ll become obsolete and put out to pasture.
• The fear that our children would rather have more of us than the money we earn or, conversely the fear that they would rather have our money instead of us.
• The fear that our greatest successes lie in the past.
• The fear we won’t be able to afford retirement.

Although I focus on the word “fear,” the term “unfair” also applies. What feels unfair to you? Why is that the case? What is it that you fear related to the unfairness? For example, if an employee doesn’t hand a project in on time, this feels unfair. However, it goes deeper than that. What lies behind the unfairness is fear that the employee is incompetent or doesn’t care, that you have misjudged or mismanaged them or will end up doing their work, or that your customer or client will misjudge you.

What does this have to do with management and HR? Absolutely everything!

Here’s the point: Nobody escapes feelings of unfairness or fear. Dr. Deming preached that one of the 14 Principles of Management is to drive fear out of your company. Acknowledging the fact that something feels unfair and then finding the fear behind it can be a powerful source of revelation. In my experience, the answer is to remain grateful and find the lesson that you need to learn. This is the ultimate responsibility; the source of growth that gives you the opportunity to let go without guilt and move on, knowing you’ve done your best. What more can you ask for?

Confidentiality Provision in Employment Agreements. In NLRB v. Northeastern Land Services, a non-union temporary staffing agency terminated an employee in violation of the confidentiality provision in his employment agreement after he complained to a client of his employer about the amount of pay he was receiving for the use of his personal computer for work.

The Court of Appeals for the First Circuit upheld the NLRB’s decision that the confidentiality provision, which prohibited the employee from discussing the terms of his employment, as well as his compensation with “other parties,” was overly broad and a per se violation of Section 8(a)(1) of the NLRA. Section 8(a) (1), which bars employers from interfering with employees’ right to discuss the terms and conditions of their employment with others. The NLRB had found that employees could reasonably understand this provision as prohibiting from discussing their compensation with union representatives.

The First Circuit held that the NLRB did not have to consider the employer’s justification for enforcing the confidentiality provision, which the employer stated was to prevent employees from disclosing its labor costs — one of the key components of its bid to clients.

The court held that when a discipline is imposed pursuant to an overly broad rule, this discipline is unlawful, regardless of whether the conduct could have been prohibited for lawful reasons.

If the employer had not relied on the confidentiality provision, but instead on the employee’s disruptive conduct, the employer probably would have been within its right to terminate him.

However, by relying on the overly broad provision, the employer lost any defense against the termination.

The idea of employee “engagement” remains a corporate buzzword. I find it interesting that the term “engagement” implies only a willingness to commit, without consummating this commitment. Webster’s defines “engage” as:

• Involved an activity
• Pledged to be married
• Greatly interested
• Involved especially in a hostile encounter

None of the above has anything to do with productivity. For example, you can be involved in your work without being motivated to do anything about it! Likewise, you can be greatly interested but inept. Interestingly, the word derives from the French word “gage,” which means something thrown down by a knight as a token of challenge to combat. Historically “engagement” means to be in the process of battle. True to the “at will” nature of employment, it seems that we’d rather have engagement than true commitment.

My diatribe on word choice aside, the 50 Most Engaged Workplaces Award identifies these eight criteria as the foundation for generating employee engagement:

• Leadership
• Communication
• Culture
• Rewards and recognition
• Professional and personal growth
• Accountability in performance
• Vision and values
• Corporate social responsibility

Essentially, this is a checklist of good management practices. You might as well cross out the word “engaged” and substitute “profitable.”

Noticeably absent from that list is any mention of compensation. I continue to believe that pay is the No. 1 reason why people go to work every day. However, once employees earn what they perceive to be a fair day’s wage, then these other factors come into play. Of course, another way is to look at what drives “engagement,” or its older equivalent, “motivation,” in Maslow’s Hierarchy of Needs, which focuses on the need for survival, security, belonging, ego gratification, and self-actualization.

After surveying numerous organizations and speaking in confidence with thousands of business owners and employees, I can tell you that the No. 2 concern at work is also the No. 2 concern at home: The quality of communication. Ultimately, we’re looking for some financial security at work and at home and then communication that’s clear, caring, and allows a safe place for dialogue. When you do a good job of communication, you support all the other factors mentioned.

Although all of the award criteria mentioned are great, your primary concern should be what matters most to your company and its employees. One way to learn this is to ask questions. Of course, unless you’re deaf, dumb, blind, or uncaring, you usually realize the major concerns. The question is, do you really want to do anything about it?