ADA and Batman—by Robin

March 27, 2017 0 COMMENTS

Recently, Ben Affleck stepped down from directing the new Batman movie to focus on his recovery following recent treatment for alcoholism. His reason for stepping down was due to his belief that he was unable to give the directing role the focus and passion it requires.  Alcohol in the workplace

Alcoholism and drug addiction present complicated issues under the Americans with Disabilities Act (ADA). The ADA protects “qualified individuals with disabilities” – individuals who can perform the essential functions of their position (or the position they are seeking) with or without reasonable accommodation. “Disability” is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities, or has a record of such impairment.

Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a “qualified individual with a disability” (and therefore not protected by the ADA) when the employer takes action on the basis of their drug use. However, the ADA may protect a recovered addict who is no longer engaging in the illegal use of drugs, who can meet the other requirements of the definition of “disability.” The ADA may protect an alcoholic who can meet the definition of “disability.”  Notwithstanding, the ADA has specific provisions stating that individuals who are alcoholics or who are currently engaging in the illegal use of drugs may be held to the same performance and conduct standards as all other employees.

In the event an employee engages in misconduct or poor performance due to alcohol or drug abuse, the employer is entitled to discipline the employee. If the employer determines that discipline is necessary, the nature of the discipline should be the same that it would be for any other employee for failing to meet the employer’s performance standards or who engages in similar misconduct.

An employee whose poor performance or misconduct is due to the current illegal use of drugs is not covered by the ADA. Therefore, an employer has no legal obligation to provide a reasonable accommodation and may take whatever disciplinary action is appropriate, although the employer can offer the employee leave or other assistance so that the employer may receive treatment. On the other hand, an employee whose performance or conduct is attributable to alcoholism may be entitled to a reasonable accommodation to obtain some form of treatment, separate and apart from any disciplinary action the employer may choose to implement, assuming the discipline is not termination.

Like Ben Affleck, if the employee self-discloses their alcohol addiction before any performance related issues or misconduct surfaces, then the employer would be required to offer a reasonable accommodation; perhaps time off or a modified work schedule in order to attend treatments. The Family and Medical Leave Act also applies to eligible employees who seek treatment for drug and alcohol related conditions.

While Ben Affleck decided to go public with his addiction, most employees do not. Employers must be mindful of confidentiality requirements to ensure that information relating to employees’ disabilities or accommodations are kept confidential. It is human nature for employees to be curious or perceive that certain employees are given preferential treatment. Regardless of any morale issue, employers must respond to such inquiries that they do not discuss one employee’s situation with another in order to protect the privacy rights of all employees.

Developing a PIP that will make employees comeback heroes—Tom Brady style

February 07, 2017 0 COMMENTS

I’m sure you all watched or heard about the Super Bowl on Sunday night: Despite the fact that his team was trailing by 25 points, Patriots quarterback Tom Brady led New England on the greatest comeback in Super Bowl history. Brady’s season began with a four-game suspension for his involvement in the “deflategate” scandal and ended as Super Bowl MVP. It’s a comeback within a comeback. Despite not knowing much about sports, as a New Englander, I would be remiss if I let this opportunity pass without drawing some sort of analogy to HR. Because my law firm is based in Atlanta, I admit, I’m cowering just a little.  Patriots' parade in Boston for winning Super Bowl XLIX

As HR professionals, we are often called upon to assist managers in addressing concerns with employees who appear to be falling behind company expectations. How can we encourage employee “comebacks” and assist supervisors by providing effective tools to help employees to do so?

When verbal counseling and written disciplinary action have not been successful at correcting performance-related deficiencies, a performance improvement plan (PIP) is often used as a means to correct performance and avoid termination. Developed and used properly, a PIP can be an effective tool. Here are recommendations for developing an effective PIP:

  1. Outline, with specificity, performance-related concerns, i.e., the reasons for the PIP. This section should be very detailed (in terms of facts and dates), include applicable requirements from the job description, and summarize/reference previous performance-related discussions/discipline.
  2. Establish specific quantifiable and realistic goals for the PIP so that the employee can clearly understand what is expected. The PIP should include consequences for failing to meet the goals.
  3. Provide a list of available tools. For example, the employee can be provided with training that targets any deficiencies, whether inside the organization or through a third party. Alternatively (or additionally), a mentor can be assigned to answer questions on an ongoing basis. The employee should be given an opportunity to discuss what tools he/she believes are necessary to meet the goals outlined in the PIP. The tools may change as the employee progresses through the PIP.  The employee should be given an opportunity during feedback meetings to discuss whether any additional tools are needed.
  4. The PIP should include a schedule for the feedback meetings, which should be frequent and meaningful. The employee should be aware of how he/she is progressing through the plan at all times. The meeting frequency may need to be adjusted depending upon how the employee is progressing. The discussions should be calm and free-flowing.
  5. The PIP should include a duration. The time period may need to be adjusted depending upon the particular circumstances. For example, if some progress is made and there is promise but the employee hasn’t yet reached a satisfactory level of performance, the time period may need to be extended.
  6. The PIP should be signed by the employee.

Hopefully, the PIP will result in the improvement in overall performance, even without the assistance of Lady Gaga falling from the sky.


“It’s not me, it’s you!” Seinfeld lessons on candid employee evaluations

July 27, 2015 0 COMMENTS

I confess, I’m a Seinfeld junkie. I’ve watched every episode multiple times and literally love every single oneeven the finale (I know, I know, I’m in the vast minority, but I’m committed, you could at least give me that). To this day, I watch Seinfeld’s re-runs over and over again, which I’m sure makes me cute in a geeky, boy-next-door kind of way, at least that’s what I tell myself. My wife just rolls her eyes and continues Facebooking, Tweeting, Instagramming, Pinteresting, Ashley Madisoning (actual users note recent security breach and structure assets accordingly), or whatever other social networking it is she does during my near daily half hour of “Ed time.” But irrespective of Seinfeld’s purported outdated-ness (likely not a word, but you’re smart, you understand), the fashions, Jerry’s updating (dating someone much hotter than you), or the fact that it is primarily intended for comedic purposes, employers can glean valuable lessons from Seinfeld if they watch closely.  Performance Evaluation

In Seinfeld episode number 140 (“The Fatigues”), Elaine, serving as interim company president while her boss is in Burma, is all set to can an employee for poor performance. Prior to meeting the employee, Elaine seems almost giddy to figuratively drop the guillotine on the unsuspecting employee. But once Elaine confronts the employee in person, Elaine can’t bring herself to do the deed, likely due to the fact that the employee is wearing fatigues, looks deranged, and has a spooky, guttural voice. Rather than deliver the news, Elaine promotes the employee from a mailroom position to a copywriter position.

Once in the copywriter position, the employee does such a poor job that Elaine decides to:

(A) counsel him;

(B) put him on a performance improvement plan;

(C) demote him;

(D) terminate him; or

(E) promote him.

While Elaine should have considered options (A) through (D), as any fellow Seinfeld-ian (I make up words like they’re “bodily functions”also a Seinfeld reference for the Seinfeld-initiated) knows, Elaine promotes the ill-performing employee. Elaine’s promotion backfires, however, when the other key employees resign leaving Elaine and Corporal Fatigues to run the catalog business.

So what’s the deal with performance evaluations?

While this situation may seem like something that could never happen in your business (because yes I’m sure all of your businesses are perfectly run and that’s why employment lawyers are so busy right?), the cold hard fact is that supervisors routinely have problems candidly evaluating the employees under their charge. While I understand that it is very difficult to deliver bad news to your employees about their performance issues (unless you’re sadistic or an attorney), trust me it’s far more difficult to endure the attorneys’ fees and costs you’ll incur defending an employee discrimination claim from an employee that you frankly treated way better than you should have and who was rightly terminated for poor performance (even if the reviews don’t reflect it).

I’ve seen and heard it so many times:

Employer: Ed, Employee X (we’ll call him George) sucked. George was totally useless, everyone knew it, he slept with the cleaning service girl, so we had to terminate him.

My response: That’s fantastic! I’m sure George’s reviews will reflect his poor performance. Please send them to me.

[Performance evaluations sent. Ed’s office pens are snapped as Ed notes that George’s reviews reflect that George consistently met or exceeded expectations. *Sigh.*]

Then, there’s always the awkward attorney-client conversation, “If George was so bad, why don’t the reviews reflect it?” I normally approach this conversation in somewhat delicate fashion (as I’m diplomatic like that), but you get the picture. It’s not an easy conversation. The employer’s answer is virtually always the same, it’s some species of: I didn’t want to hurt George’s feelings; I didn’t want to jeopardize George’s career, family, livelihood, etc; I spoke with George about the issues but didn’t want to put it in his evaluation or in his file.

Serenity now, insanity later (so make evaluations accurate now, no matter how uncomfortable it is)

This is the part where I tell you nice guys (and girls) finish last. Plaintiffs’ lawyers know it’s human nature to give reviews that are more favorable than the employee’s actual work product. Plaintiffs’ lawyers use these evaluations like a freshly sharpened spear to kill the employer’s defenses. Plaintiffs’ lawyers rely upon the inflated reviews to show what a wonderful employee George was and that his termination could only have resulted from the decisionmaker’s discriminatory views on age, gender, race, national origin, disability, whistleblowers, or “low talkers” (take your pick). Guess whose head winds up on top of the spear? Not George’s headthe bad employee, the bad boyfriend, the bad son, the bad tipper. You guessed it, the decisionmaker’s head, along with a noticeable dent in the employer’s bank account.

The moral of the story, when it’s accurate, supervisors need to be brutally (and yes, I mean brutally) honest with underperforming employees. That means:

  • Telling underperforming employees, it’s not me, it’s you (see, Seinfeld references represent at least 20% of my lexicon).
  • Giving underperforming employees specific examples of their shortcomings. Counseling sessions, absent compelling circumstances, should be memorialized in writing, and the employee’s performance issues should be reflected in the employee’s evaluations.
  • Documenting if an employee isn’t meeting expectations. Save the nice guy/girl routine for the company picnic or holiday party, maybe both. But at work, you need to be honest with your employees about their performance, even if that means ruffling a few feathers and potentially sacrificing what would otherwise be a good personal relationship.
  • Contacting your friendly neighborhood FordHarrison lawyer and we’ll walk you through the situation.

By the way, as for the advice contained in this blog: it’s real, and it’s fantastic.

Avoiding the “own goal” at work: 3 lessons from Women’s World Cup

July 06, 2015 0 COMMENTS

On Sunday, the United States Women’s National Team (USWNT) soundly defeated Japan to claim the nation’s third World Cup championship. With this year’s Women’s World Cup breaking TV ratings expectations at every turn, it’s likely you or someone you know was glued to the tube as this spectacular victory unfolded. I know I was. And as I watched “el jogo bonito,” I was reminded of three simple lessons that translate well from the pitch to the office. Soccer World Cup

#1: Deal with the draw

When the groups were decided for this year’s World Cup last December, things didn’t look great for the USWNT. Although ranked No. 1, the USA drew Australia, Sweden, and Nigeria—affectionately called “the Group of Death” due to its having the highest cumulative FIFA points of any group. After group play, the USA had to overcome the upstart Colombians, the Chinese, and Germany to make its way to a rematch against 2011 World Cup winner Japan. This was hardly the “easy road” to victory. Rather than shrinking away from the steep climb, the USWNT welcomed the challenge and used it as motivation during training.

The same should apply to you when confronting difficult employee relations issues. The myriad challenges of managing personnel for any workforce can be daunting. Many times, we inherit the troublesome employees that another department or a previous HR manager didn’t want to deal with. Shying away from these employees or their problems will not make them go away. In fact, ignoring these problems will likely make them worse.

For example, say you have an employee whose production is severely lacking and has been for some time. Whenever you’ve tried to address the issue in a constructive way in the past, the employee gets defensive and makes a scene, which makes both you and the employee’s coworkers uncomfortable. So rather than proceeding past verbal warnings to a written discipline or performance improvement plan, you’ve decided to just sit on your hands and wait it out.

Perhaps, you’re hoping the employee’s performance will improve (miraculously) or he/she will find another job. But while your deft scheme of “wait and hope” may keep things quiet and cordial around the office, what you are really doing is telling the troublesome employee everything is OK with how they are performing now. Plus, you are sending the signal to your good employees that how they perform doesn’t matter either. Why should they keep giving extra effort if they can just be lazy and throw a hissy-fit to avoid consequences?

The point is, being an HR professional isn’t an easy job. That is why the other managers and C-level employees created your department—to deal with the tough issues. So, if you are faced with handling the “Employees of Death” at your company, take a tip from the USWNT and meet the challenge head-on.

#2: Avoid the “own goal”

Aside from the frequent flashes of brilliance, the Women’s World Cup also saw one of the most devastating sources of heartache in soccerthe “own goal.” With the game tied against Japan in the last minute of stoppage time, England defender Laura Bassett attempted to stop a cross by Japan by extending her right leg, only to see the ball deflect off her foot, over her goalkeeper’s head into the bottom of the cross bar, and fall across the line for a goal to Japan.

Unfortunately for England, this isn’t the first time the Brits have experienced a heartbreaking loss in the elimination rounds of a World Cup. (I’m talking to you, Diego Maradona.) What’s more, the resulting devastation wasn’t for a lack of effort. Indeed, had Bassett not reached out for the ball, it may very well have gone into the waiting feet of the Japanese striker for a one-on-one duel with the keeper. And had the ball hit Bassett’s foot at impact, it may have deflected out of bounds rather than into the goal, at least forcing the Japanese attack to reset for a corner.

The prospect of the “own goal” is no less real in the world of human resources. Try as you might to get a grasp on all the important issues in the world of HR, many situations require the help of a legal professional. A familiar illustration would be employee requests for accommodation. With the Americans with Disabilities Act’s loose definition of “disability” and the Equal Employment Opportunity Commission’s aggressive stance on disability issues, employers might be quick to accept an employee’s accommodation request just to keep from being labeled discriminatory.

On the flip side, the employer might be too quick to reject an accommodation (or fail to entertain the request altogether) to rid itself of an employee who the employer thinks may be trying to “game the system.” Either way, failing to consider all of the pertinent factors in making this decision is the equivalent of sticking your foot out and hoping for the best. While you might get away with it, the consequences of a bad bounce can have real, long-term effects on you and your company. Instead, in these tricky situations, consult a neutral third-party or a trusted legal professional to help you set up your best course of action.

#3: Best defense is a good offense

If you’re an American, I hope you watched the World Cup final. Not only was it played just one day after the celebration of our nation’s Independence, it was freakin’ awesome! Within just the first 15 minutes, the United States jumped out to a 4-0 lead, mainly on the right and left feet of Carli Lloyd. Lloyd put the cherry on top of her hat-trick by chipping Japan’s goalie from just across the midfield stripe—MIDFIELD!

The American onslaught put the USWNT so far ahead of Japan that it was almost certain, even with nearly 60 minutes of play left, that the daughters of the land of the rising sun would not be able to overcome the deficit. And they weren’t. Despite Japan’s two-goal effort and relentless attack in the final 20 minutes, America captured its first World Cup title since 1999.

In the workplace, getting out ahead of your potential problems is the best way of ensuring you stay in the lead when it comes to common employee issues. You can start by making sure your employee handbook and employment policies are up to date. These policies are often affected by state and local laws, which are subject to change any time the legislature is in session, and often with less press. Others can be changed by agency rulemaking, without the necessity of new legislation.

Take, for instance, the U.S. Department of Labor’s recent announcement of their proposed amendments to the Fair Labor Standards Act’s (“FLSA”) “white collar” exemption tests for executive, administrative, and professional employees. The proposed rule more than doubles the annual salary required for an employee to be considered exempt from overtime or minimum wage under the FLSA’s white collar exemptions. Such a rule likely will drastically affect many employers’ operations should it take effect in some form or another.

Employers must stay on top of these changes to avoid getting tripped up by changes in the law. A thorough review of your policies will make sure your company is in the best position to deal with new changes to the law. You also should make sure your workforce receives notice of any changes and that you train your supervisors on how to deal with the administration of any new policies. In the employment world, your supervisors’ actions can be imputed to the company, so it’s important they understand the important points of any new changes.Failing to ensure your workforce is adequately trained can nullify the impact of having gone through all the trouble to update your policies in the first place.

Lastly, audit your practices. Many business practices develop far beyond the watchful eye of the HR department out of a necessity to meat business needs. By continually auditing what your company actually does, you can make sure you are doing your part to prevent potential legal blunders that may arise from the daily grind.