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March 2015

The Sad Reality of “Post Education” Learning

By Your Employee Matters | No Comments

The vast majority of employees don’t educate themselves after their formal schooling ends. We even use the term “post-education” as if we are somehow done with learning. Ask yourself a simple question: how many of your employees have been willing to spend even $100 over the last year to improve their education? Chances are very few. The point is this: if you don’t put employees into a formal training program the odds are they won’t train themselves…and become more valuable in the process.


According to the Pew Foundation most Americans read less than five books per year with few of those books related to business acumen. (Just look at the top selling books on the N.Y.Times best seller list or on Amazon). Yet the graph below makes it abundantly clear that to earn more you have to learn more. There is a widening gap in income levels and it is primarily related to one’s education.


The sad reality is that left to their own devices most employees would do little or nothing to further their education. This means the only viable solution places them into a system where continuous learning is part of the company culture. We’ll talk about surveys in a future article but what you think the response would be if you surveyed your employees as it relates to their “voluntary” education?

Book readership according to a Pew Foundation Study. To train your employees take a look at ThinkHR Learn.

Participate In The “Interactive Process” To Impasse

By Your Employee Matters | No Comments
Given the EEOCs aggressive disability stance, employers are encouraged to engage in the interactive process until it is no longer possible and/or no longer reasonable.  A recent decision issued by the First Circuit Court of Appeals in EEOC v Kohl’s Department Store illustrates why this tip is important.
Facts of the case:
The situation at issue in the case should be fairly familiar.  National department store chain Kohl’s employed Pamela Manning as a sales associate.  In January 2008 Ms. Manning transitioned from part time to full time (36-40 hours per week), “work[ing] predictable shifts which usually started no earlier than 9:00 a.m. and ended no later than 7:00 p.m.”  However, in January 2010 Kohl’s restructured its staffing system nationwide.  As a result, Ms. Manning’s schedule became hyperkinetic.  Like other full time sales associates who were required to work two night/evening shifts per week, Ms. Manning’s schedule “became unpredictable” and included a number of “swing shifts” (defined as a night shift followed by an early shift the next day).
In March 2010 Ms. Manning told her supervisor that this schedule “was aggravating her diabetes and endangering her health.”  The supervisor requested a medical note and Ms. Manning provided one signed by her endocrinologist.  The doctor reported that working irregular hours contributed to high glucose levels and recommended that Ms. Manning work “a predictable day shift (9a-5p or 10a-6p)” so she could better manage her condition and treatment.
Upon receipt of the information, store manager Tricia Carr conferred with Kohl’s corporate HR department, which instructed the store manager that Kohl’s could grant the “no swing shift” request but could not guarantee that Ms. Manning would not work nights.  Ms. Carr met with Ms. Manning on March 31, 2010 to discuss her request in more detail.  At the meeting Ms. Manning (according to her later deposition testimony) clarified that she wanted a predictable day shift schedule: “I was asking for a midday shift, what I had before, the hours that I had before [the departmental restructuring].”
Ms. Carr informed Ms. Manning that a day shift schedule would not be possible.  The discussion ended there.  “Manning became upset, told Carr that she had no choice but to quit because she would go into ketoacidosis or a coma if she continued working unpredictable hours, put her store keys on the table, walked out of Carr’s office, and slammed the door.”  Ms. Carr followed Ms. Manning to the employee break room, “attempted to calm Manning down and requested that she reconsider her resignation and discuss other potential accommodations.”  Ms. Manning refused.  Two days later she contacted EEOC.  On April 9, 2010 Ms. Carr called Ms. Manning and again asked her to reconsider her resignation and return to talk about accommodations.  Ms. Manning again refused.
Kohl’s prevailed in litigation.
EEOC brought suit on Ms. Manning’s behalf in the United States District Court for the District of Maine.  The agency asserted that Kohl’s failed to provide reasonable accommodation in violation of the Americans With Disabilities Act.  The district court granted summary judgment for Kohl’s.  Although it found Ms. Manning to be disabled and to be able to perform the essential functions of the job with or without accommodation, the district court concluded that that Ms. Manning “had failed to engage in an interactive process in good faith.”
EEOC appealed this decision to the First Circuit Court of Appeals.  The three-judge panel considering the appeal affirmed summary judgment for Kohl’s by a 2-1 margin.  The majority observed that the interactive process is an informal bilateral dialogue between the employee and the employer for the purpose of discussing “the issues affecting the employee and potential reasonable accommodations that might address those issues.”
In this case it is clear that Kohl’s and Ms. Manning were involved in the interactive process.  It also is clear that the process stopped at some point.  On this point, the First Circuit majority concluded that Ms. Manning was responsible for the breakdown of the interactive process: she left the March 31, 2010 meeting; she confirmed her resignation when Ms. Carr followed her to the break room; and she rejected the April 9, 2010 invitation to reconsider resignation and resume the interactive process.
“We must emphasize that it is imperative that both the employer and the employee have a duty to engage in good faith, and that empty gestures on the part of the employer will not satisfy the good faith standard.  If an employer engages in an interactive process with the employee, in good faith, for the purpose of discussing alternative reasonable accommodations, but the employee fails to cooperate in the process, then the employer cannot be held liable under the ADA for a failure to provide reasonable accommodations.”
Consistent with this, the appellate court upheld the lower court’s summary judgment order.
EEOC subsequently asked the three-judge panel to reconsider its decision and asked the full First Circuit to review the decision.  However, on
February 13, 2015 the First Circuit denied these requests.
The HR Tip:
The First Circuit decision affirming summary judgment was 2-1.  The dissent did not believe that Kohl’s had done enough during the March 31, 2010 meeting, before Ms. Manning stormed out.  In particular, Ms. Carr did not assure Ms. Manning that it would be able to grant her request for no swing shifts.  In the dissenting judge’s opinion, this should have been enough to allow the case to go to a jury.  While the majority obviously disagreed, it is undeniable that this was a close case (the majority even described the initial response by Kohl’s as “ham-handed”).
What carried the day for Kohl’s was the extra effort to restart the interactive process.  Ms. Carr attempted immediately after Ms. Manning stormed out of the room to convince her to come back to the table.  Further, Ms. Carr telephoned Ms. Manning nine days later and asked her again to reconsider.
The lesson for employers is simply this: engage in the interactive process until it is no longer possible and/or no longer reasonable.  Kohl’s did that here; it pushed for interaction until Ms. Manning made it clear that she wanted no part of it.  Thus, continuing the process at that point was no longer possible.
If Ms. Manning had accepted the invitation to re-engage, then the obligation would have been on Kohl’s to participate in the process fully.  That process may have led to the conclusion that reasonable accommodation was possible; it also may have led to the conclusion that no reasonable accommodation was possible.
Article Courtesy of the Bullard Law Firm http://www.bullardlaw.com/

ThinkHR Question of the Month

By Your Employee Matters | No Comments

Allegation of Misused SSN

Question: How should we respond to an allegation that a Social Security number (SSN) belonging to someone else is being used by one of our employees?
Answer: As a first course of action, you may want to confirm that the accuracy of the Social Security number (SSN) being provided matches Form I-9 and other payroll data points. You may also contact your local Social Security Administration (SSA) office to verify that the employee’s name and birthdate match the SSN being used.

When a matter of this nature is determined by the SSA, a mismatch letter is issued to the employer advising that the employer correct their records accordingly, which often results in the employee needing to correct the matter with the SSA.

If after contacting the SSA you find the allegation to have merit, we recommend speaking with the employee to advise that there is a discrepancy with the SSN that has been provided and permit the employee to go to the SSA office to rectify the matter during the next business day. More information is available at https://www.socialsecurity.gov/employer/ssnvshandbk/failedSSN.htm
According to SSA you should remember the following:
• A mismatch is not a basis, in and of itself, for you to take any adverse action against an employee, such as laying off, suspending, firing or discriminating.

• Company policy should be applied consistently to all workers.

• Any employer that uses the failure of the information to match SSA records to take inappropriate adverse action against a worker may violate State or Federal law.

• The information you receive from SSNVS does not make any statement regarding a worker’s immigration status.

Further assistance may be accessible through your legal counsel.

Editors Column: Five emotional traps that get in the way of your success

By Your Employee Matters | No Comments
Much what much of what gets in the way of success is… ourselves. Here a five emotional traps we should strive to avoid:
1. The desire to be comfortable – as Paulo Coelho said “only the mediocre are ever truly comfortable”. If your primary goal is to be comfortable then you can expect to get run over by someone not interested in being comfortable. There is no growth without discomfort so better get used to it. Where do you fear discomfort? Are you willing to move past it?
2. Not realizing that the only power you will ever have is right here, right now – it is so easy to project ourselves into a painful past or fearful future. All this does is create emotional noise which gets in the way of what really matters – getting things done now. While it is important to have plans it’s even more important to ask what’s the most important thing I should be doing right now? And then do it without delay. Every time.
3. Waiting for somebody else to go first – it is so easy to blame the environment including the people in it. It is “they” who get in the way of our success. It is “they” who don’t see the full measure of our value. Guess what – it’s not their job to notice your value or to play hero for you. You go first in spite of others. You don’t look for what’s “unfair”. You look for the opportunity you will create.
4. You don’t want to get over it…quickly- deeply successful people can weather most any storm. That’s because they have built a strong emotional foundation. They don’t harbor on the past but they do learn from it. Then they dust themselves off and get going again. So what if you made a mistake or blew a sale. Get over it, learn the lesson and move on!
5. There is an entitlement mentality – this is where “they” owe you something simply because of how wonderful you are. God’s gift to this planet. Maybe you were raised as the family prince or princess and now expect those you work with to cater to every need like your parents did. Newsflash – no manager wants to be your mommy or daddy. Very simply they want you to perform well because that makes them look good. Remember this: success is your responsibility and nobody else’s.

Risky Women and Timid Men – why you should seek both sexes risk management perspective

By Business Protection Bulletin | No Comments

According to Julie Nelson in her paper “Are Women Really More Risk-Averse than Men?”, this question is like stating Canadians are right-handed, since ninety percent are.  But, you would reject that thesis immediately.  Studies demonstrate that women are more risk-averse than male counterparts, at least in the social laboratory; however, no study has shown that risk-aversion is feminine or quintessentially female.


The real question, when risk management and loss control programs are designed, is what risks are acceptable.  Risk aversion may be the essence of great risk management.


The value of diverse opinions, risk tolerance, viewpoints, or just questioning standard operating procedures is enormous in retooling or creating a safety program in the workplace.  Efficiency experts and quality control people often go to the first person along the assembly line and show them the finished product.  They ask for input for improvements by way of the product, work conditions or safety.  After carefully listening, they continue to move down the line getting more input.  Why?  Because these folks spend eight hours a day thinking about it.  Nobody is more expert.


In the end, the management of the company has views from several stops along the assembly procedure, from divergent personalities, and from different levels of understanding the finished product.  Inevitably, this source of information proves most valuable and accurate.


Now consider your safety program review.  Everyone should be interviewed from the person ordering safety protection equipment to the president of the company.  Don’t ignore the office staff – very often are the best source for what really concerns the workers or how they view the company safety culture.  Don’t bias the study by interviewing only men or only women about certain jobs.  You want to know the concerns of the most risk averse and the mentality of the least risk averse employee.


You may find the women to be very willing to take measured risks in some areas while men are very timid in the same.  The important data involves what are the areas of agreement for what is universally acceptable risk and unacceptable risk.  The middle is the range of risk aversion.


Regardless of the sex of the individual, some training may be appropriate to bring the most risk averse into the mainstream and the most risk tolerant into a safer mental environment.

Industrial Accidents and the Bottom Line: cost accounting for injuries

By Business Protection Bulletin | No Comments
An employee injury brings production to a complete halt.  Concerned coworkers rush to aid their colleague.  Work ends for hours as supervisors manage care for the injured, investigate, and document the incident. This scene is the employers’ nightmare.
When the hard costs for first aid, hospitals and doctors, and the injured’s lost time begin to add up, the employer discovers the harsh expenses of industrial medical care; and gratefully, they’re insured through workers’ compensation for most of it.
Then the managers begin to communicate regarding the indirect costs.
Why was production off last month?
Lost three hours on the line to tend to an industrial accident.
Supervisor spent ten hours following up with hospitals, doctors and an incident investigation to understand how the injury occurred.
Managers needed to buck up employee morale and communicate what the company is doing for the injured employee.
Post-injury training programs were implemented to avoid the problem in the future.
Executives dealing with any negative publicity.
OSHA fines, hearings, documentation or just being shut down for their investigation.
And these are just the most obvious indirect costs.
According to the OSHA website (February 16, 2015), their small business “safety pays” cost estimator calculates a hernia as $22,540 direct expenses and $24,802 indirect costs a total of $47,352.
Converting that total into gross production, or sales required to pay for that loss, that number soars to $826,760.  The workers’ compensation provider will pay most of the direct costs of an injury; but the employer pays one hundred percent of the indirect costs, which are almost always higher.
No matter how you add up the numbers, industrial accidents cost the employers dearly.  With a little reverse engineering, spending some money up front on safety and personal protection equipment  seems very prudent.  It’s much easier to keep morale high by showing concern about preventing accidents than bucking up the troops after one.
Obviously, nobody wants employees injured on the job.  Cost accounting injuries is not about calculating how to press production forward at an acceptable rate of medical payments.  It is about rationalizing prevention costs, understanding the value of workplace safety.  Top management always must lead the safety program and hold it dear.  Equally important though, is sharing the management of the program with employees.  When everyone buys into this ethic, the company benefits through the safety dividend.

The CEO Leads: but who manages the safety program

By Business Protection Bulletin | No Comments
The safety culture is established by leadership.  If the CEO and COO take safety seriously, it shows up as education, safe processes, and personal protection.
Who manages the safety program?  Line managers?  Executives?
Safety programs should be a collaborative effort to create a safe workplace.  Safety management, to be most effective, must reflect this ethic.  Line or labor workers should be represented, supervisors, supply chain people, maintenance workers, loaders and drivers, office workers, management and the executive suite in a limited capacity (okay the budget or explain the constraints).
Establish responsibility for safety, which in turn, establishes authority.  Everyone should be vigilant.  Everyone aware.  Committee members should be responsible to report safety issues inherent in their specialty, and bring up issues reported by coworkers.  Equally important, bring to the committee any suggestion which improves operations or safety or both.
Improved operations and the collaborative safety culture are symbiotic, not exclusive.  Doing tasks better and more efficiently is part of doing them safely.  Build that collaborative trust by encouraging  participation in a fully vertically integrated manner.  Safety and process improvement are open topics of discussion from any organizational level to anyone in the organization.
One case study involved an awning company which manufactured units in the chronological order of acceptance.  This process required changing the fabric spool more often to match the color to the order properly.  Changing fabric roles was risky and dangerous, not to mention inefficient.
The line workers had wondered about this requirement for years.  Why not run reds on Monday, blues on Tuesday, and so on as orders were batched?  The managers followed orders because they were told traditionally “it’s the way dad did it”.  The founders legacy from a time when the changing fabric was less of a headache because the awnings were dyed after assembly.  So, completing the orders in sequence made sense.
The newly established safety committee brought about the change to batched orders, justified by decrease in risk to the employees changing out almost full rolls of fabric often.  The side-effect was an increase in manufacturing efficiency of over fifty percent.
This case study demonstrates the importance of the CEO leading the safety program; in fact, prior to the change, they led a poorly designed safety program.
The case study also demonstrates the importance of vertical open communications.  Respecting everyone’s point of view.
Lastly, it demonstrates the requirement that good business reasons be the burden of proof rather than tradition.

Duty to Defend: undergoing changes in interpretation

By Business Protection Bulletin | No Comments
Duty to Defend means the liability carrier, your insurance company, must provide claims investigation resources and legal counsel to you in the event of a potential loss covered under any liability policy.
Implied in this duty is that the duty to defend is more broad than the duty to fairly pay legitimate claims.  Since you must defend non-legitimate claims, it’s the potential coverage which initiates defense, not the final indemnification amount.
What’s not so clear is where this line is crossed.  When does the insurance company not have a duty to defend?
Each state is currently struggling with this issue.  The insurance companies are less inclined to pay legal fees for feud lawsuits or clearly excluded circumstances.  Contractual liability, environmental and cyber liability seem to be the areas of test cases.
In the settlement negotiation process; however, the insurance company representatives are in a unique position to sway the proximate cause of the claim.  For example, in a situation where a liability policy has an absolute environmental exclusion, but products are covered.  If a claim occurs for the product creating an environmental issue, either liability could respond.  In the case where the insurance company attorneys argue that the environmental liability is the correct one, and the company should not be responsible for legal fees, a conflict of interest arises.  Should two sets of attorneys represent the defendant?
Obviously, this type of settlement where the company negotiates an uncovered peril as the cause is bad faith, and the public needs protection as the insurance company is protected against fraudulent claims like arson.
It is not, however, without precedent.  Look at the uninsured motorist coverage.  You pay for this coverage in your personal automobile or in the company fleet policy.  An accident occurs and the other driver flees the scene.  When you turn in the uninsured motorist claim, your insurance company hires a lawyer to defend the uninsured motorist, the hit and run driver, against your claim.  On the surface, this protocol may not seem logical; but the uninsured motorist may be caught.  In order for the insurance company to collect through subrogation, they must demonstrate mitigation of the loss, that they acted in good faith on behalf of the other driver or car owner.
Under professional liability policies, the insured pays a first dollar retention which includes the cost of investigation and indemnification.  After that amount is exhausted, the insurance company pays for all legal costs until they reach a settlement agreement.  At that point, the insured has the option of accepting the agreed terms or taking over the claims procedure and paying any legal fees over the settlement amount.  Or, any additional indemnification awarded.
It’s worth researching your state law regarding legal expenses and the duty to defend.  This issue will be settled on a state by state basis.

Make Your Site Child Safe

By Construction Insurance Bulletin | No Comments
Construction sites look like a top-notch playground to kids.  We were all young once, we understand.  For this reason, take extra steps to assure your site is child proof.
Fence your site, at least with orange safety fencing.  Use temporary gates for overnight and weekends.  Post no trespassing signs.
To the extent possible, grade the site eliminating all piles of soil or excavations.  Children are very susceptible to crush injuries from shifting soil and unstable excavations.
Use plastic caps on all reinforcement bars to avoid impalement injuries.
Police the site of all discarded nails, scrap lumber, any sharp object like scrap wire or sheet metal or flashing.
Avoid stacking materials high.  Kids can create unstable piles of anything resulting in toppling or crushing injuries.
Avoid leaving unfinished utility hook-ups open.
Discourage visitors from bringing children even during day time inspections, including the future owners of the property.  The more neighborhood kids see children welcome, the more entitled to trespass they will feel.
If compelled to allow children a visit, be sure they wear all the same personal protection equipment that anyone else would.
Most of these suggestions amount to good housekeeping and security.
Children love playing in partially completed buildings.  Go the extra mile when locking up, especially over the weekend or when school is out:
1. Close all entrances with plywood or doors.
2. Do not leave ladders on site.
3. Cover or close all openings in floors.  Children can slip through some very small openings.  If staircases have not been installed, cover those openings with secured plywood.  Don’t think guardrails look like a warning to kids.  They look like a challenge.
4. Store as few tools on site as possible.
Children love playing on construction sites, discourage this behavior for liability reasons.  If possible, openings in fences should be away from neighborhoods where children live.  This is a difficult task in new home subdivisions, but the more remote, the better.
Curiosity is a big part of the magic of youth.  Everything is new and exciting and worth exploring.  But adults are easily injured when trespassing on construction jobsites.
Think about everything you do to keep adults out, and then increase security by twice that.  Cameras discourage adults, not kids.  Physical barriers, the closer to the entrance the better to discourage children.

Inspect Employee-owned PPE and Tools Too

By Construction Insurance Bulletin | No Comments

Certainly someone in your organization inspects hand tools for wear and tear, cracking, or chipping.  Grounds on electrical tools should be periodically checked as well as operational fitness.

But your employees and subcontractors bring tools on site too.  Who checks those tools?

As a prime contractor, you are still responsible for overall workers’ compensation and general liability claims.  Check their tools and personal protection equipment (PPE) too.

A fairly quick visual inspection will tell you if hard hats fit properly, whether or not workers have proper eye protection, are they dressed correctly for the work, and if they have appropriate footwear.

Take time to check any suspicious or missing PPE.

Check hand tools to assure quality:  no spurs on hammers or chisels, handles securely attached, no cracks or breaks, nothing rusted shut or open?  Saws sharp?

Inspect the cords on power tools.  Are they grounded?  No loose prongs?  Are they appropriate for the application?

Most of these inspections can be done quickly and unobtrusively while the crew sets up their workspace.  Ask if they have an assured grounding program, and if so, could you review the paperwork.

Offer to help correct any deficiencies.  The idea is to work safely, not stop work completely.

Observe the safety attitude of these subcontractors.  It’s one thing to have proper tools, PPE and work clothes.  It requires discipline and good work habits to operate safely.

Tell and write your employees about your standards for proper tool maintenance.  They should want to bring their own tools.  You, however, are still responsible.

Certainly power tools must be properly grounded.  Require these personal tools to be inspected and tagged as acceptable.

If OSHA visits the site and corporate tools undergo an inspection process, but personal tools do not, or if it’s significantly different, OSHA will rightfully have an issue with this protocol.  You may still be in compliance, but sloppy habits point to greater potential problems.

Besides, don’t your employees deserve a safe workplace not invaded with dangerously maintained tools and ungrounded power equipment.

Observe the workforce, the entire workforce. Inspect tools to assure safety and proper maintenance.  Require subcontractors and specialty labor to follow the same rules.  Keep the workplace safe for all of them.