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The SESCO Report – April 2014

Six Management Mistakes

Sometimes it seems as though there are a thousand ways supervisors and managers — with the best of intentions — can get your company into a lawsuit. The following mistakes are the most common:

Mistake #1 — Making Unlawful Preemployment Inquiries

That's an interesting accent you have. Where were you born?

Do you have any children? If so, will you have any daycare problems?
How will you get to work?

Inappropriate questions during interviews and other preemployment contacts are a primary source for claims of discrimination. The courts generally assume that if you asked a question, you intended to use the answer as a factor in your hiring decision. Therefore, any questions about or references to protected categories like sex, age, race, national origin, or religion can later be used against you in a discrimination claim.

Mistake #2 — Delivering "Dishonest" Evaluations

I'm giving you a "satisfactory" rating and I think we both know what that means in this company.

I gave her a "good" rating even though her work is poor, because I think a "poor" rating would be demotivating.

Many managers and supervisors avoid the discomfort of delivering a review that indicates poor performance and instead cop out with a "satisfactory" rating. As a result, many legitimate actions taken against an employee based on poor performance can be questioned because the performance reviews are positive.

Mistake #3 — Too Vague in Discipline and Performance Write-ups

Sally, your work could use improvement.

I'm making a note here that we talked about your performance.

Jay's poor performance is unacceptable, and I'm just going to spell it out — he's lazy.

Because of the desire to avoid unpleasantness, managers and supervisors will often write something on performance evaluations like "needs improvement." That's too vague. Does it mean the employee did a great job, but there's always room for a little improvement, or does it mean that the employee did a terrible job?

Or, how about "Talked about your performance." Was that to tell her how exceptional her performance and behavior were?

And then we've got judgment words like "lazy." Again, too vague. Create documentation and give specific examples of the unacceptable behavior.

Mistake #4 — Making Rash Disciplinary Decisions

That's it, I've had it, you're fired.

Ultimately, firing may be the appropriate thing to do, but instantly in anger isn't the way to do it. First of all, an angry, public tirade gets those "I'm going to sue" juices flowing. Second, you should never fire without carefully reviewing the circumstances with HR or SESCO. They are in a good position to evaluate the appropriateness of the punishment and its consistency with previous similar cases.

Mistake #5 — Making Uninformed Responses to Medical Leave Requests

Why will you need time off? Can you verify your medical diagnosis?

Why were you in the hospital?

Why do you have to take that medication?

Few supervisory situations are as frustrating and challenging as dealing with employee requests for medical leave, but managers and supervisors have to curtail that frustration and respond professionally.

You just don't want your managers and supervisors managing FMLA leave. The basic rule for managers and supervisors should be: Contact HR or SESCO.

Mistake #6 — Not Realizing the "Power" of the Supervisor

Let's go out for a drink after work. Then maybe we'll grab dinner.

I'm hoping everyone will contribute generously to my son's baseball team.

Inviting an employee out for a drink after work may seem like a simple gesture, but the subordinate may view it as an order. Especially if the request is repeated, it can always be viewed as coercion or harassment. Supervisors and managers are agents of the company, and when they engage in behavior that may be considered harassment, it's especially egregious because of the power they have over their employees.

Another aspect of supervisors' agent status is that if the supervisor knows, the company knows. The company can't say, "We weren't aware of the situation."

SESCO Staff Recommendation

It is critical that supervisors and managers be trained on the basic do's and don'ts of human resource management to include:

Screening and hiring
Disciplinary action up to and including termination
ADA/Family and Medical Leave
EEOC rules and regulations
Company policies/employee handbook

Not only does SESCO's training provide to managers and supervisors what they cannot say but also we provide our recommendations for what employers should do and say during these critical times of employment action. We welcome the opportunity to assist in training your supervisors to ensure that they are not only effective but also avoid getting themselves or you organization into a legal mess.

Unions Are Dead. Think Again!

With a pro-union-friendly White House and subsequently a very pro-labor NLRB, union activity across the country is on the rise. Union membership is at an all-time low in the private sector and as such, unions are desparate for dues paying members. Activity is also up due to the power of Executive Order rule making by the White House and their push for "quicky elections." This pro-union environment allows big labor to target smaller employee groups which have traditionally been left alone.

With unions targeting smaller employer groups to include non-traditional unionized industries, SESCO clients have experienced labor activity in the following industries:

Fast food
Automotive retail dealerships
Smaller manufacturing companies
Home health/hospice care
Physician groups
Automotive service
Long-term care

And, of course, the traditional industries such as auto manufacturing, hospitals, energy/natural resources and others.

It is critical that all organizations are aware of the potential vulnerabilities. Recently, a client contacted SESCO stating that they had heard "about two weeks ago there was union activity. Then we received a petition to schedule a secret ballot election."
This is alarming in that the employer was so unaware of the activity within their organization.

To make things more difficult, union tactics have changed drastically over the years. Many times, as in the case noted above, an employer will not know that a union has targeted their facility until it's too late. Current union tactics include:

Union salting — A paid union employee will apply and be hired on at an employer of choice. Once hired, this union radical will identify employment law compliance issues, safety or other employee relations vulnerabilities to exploit internally with a very targeted group of employees. Only until a large group of employees have committed and signed union cards will the union become visible in their activities.

Unions targeting employers through local civic groups, churches and activities.

Contacting employees and their families at their homes.

Utilizing media
to their fullest extent. Big media is a friend of labor.

Contacting employees who have been terminated and/or filed EEOC charges or lawsuits and exploiting their cases.

The positive thing is that unions just don't happen. Unions are caused. Employees turn to unions when their needs go unmet by supervisors or leaders of an organization. Typically, issues as identified can be resolved and thus the vacuum for the need of unionization and third-party representation can be removed.

What should all employers do now?

Conduct employee surveys every 18-24 months. Employee surveys are not only sound communication tools thereby identifying issues and concerns causing turnover or morale issues, but will identify vulnerabilities that could be exploited by a third party.

Ensure that your organization has a well drafted, pro-employee, pro-company employee handbook.

Ensure that leaders are selected carefully based upon managerial skills versus technical skills. Provide ongoing development and training to all managers and leaders.

Ensure there are at least five (5) communication systems within your organization to include:

- Open-door policy
- Complaint system
- Employee surveys
- One-in-twelve meetings
- Management by walking around
- Bulletin postings/weekly or monthly updates
- Quarterly company meetings
- Employee recognition programs

The need for good employee relations is obvious in today's global environment. Good employment relations help attract, retain and create a highly-productive/highly-motivated workforce. Therefore, the benefits of good employee relations not only helps avoid unionization, but helps meet bottom line goals and objectives.

Please don't assume that your organization is not vulnerable to unionization. Unions are popping up everywhere and attacking any and all employers, in any and all industry no matter what size. Should you have any concern about your employee relations culture or vulnerabilities, SESCO is just a phone call away and boasts the following statistics:

The oldest labor relations consulting firm in the country.
A 90% win rate.
Staff who have represented clients in literally hundreds of union campaigns.campaigns.
Written a number of "how to" manuals on union awareness, avoidance and labor negotiations.

Contact Bill Ford at 423-764-4127 or

SESCO Special Publication

"How to Prevent and Combat Unionization Successfully"

$49.99 — Retainer Clients
$79.99 — Non-retainer Clients

SESCO Product of the Month

Special Pricing on Vital Learning Training System — Leadership Essentials

This system is designed to give supervisors, managers and team leaders the skills necessary to impact the bottom line, promote teamwork, create a positive work environment and increase productivity. Modules include:

Essential Skills of Leadership (ESL)
Essential Skills of Communicating (ESC)
Coaching Job Skills (CJS)
Communicating Up (CU)
Delegating (DE)
Developing Performance Goals and Standards (DPGS)
Effective Discipline (ED)
Improving Work Habits (IWH)
Managing Complaints (MC)
Providing Performance Feedback (PPF)
Resolving Conflicts (RC)
Supporting Change (SC)

For use in-house: complete with Facilitator's Guide/DVD's/Workbooks

Call for pricing: 423-764-4127

SESCO Client Feedback

"Bill, thank you — obviously there was tremendous interest in your presentation — several of us talked after the conference and all agreed your's was the best presentation we have had at any conference — you were great." ~ Bob Crumley — IHFA (Independent Hardee's Franchise Association)

"All of the service Jamie has provided has been exceptional and also accessible. Great customer service in all avenues, very personable. Working with SESCO is a great experience, highly recommend." ~ Dave Garcia, CEO — Contractors Precast Corp

"Most useful in helping us draft an accurate and appropriate EEOC response." ~ Jeff Sowers — M&M Auto Parts

"SESCO is a great organization and a good resource for businesses of all sizes." ~ Jeannette Edwards — Eastern Shore Rural Health System

Special Thanks to New SESCO Clients!

Irvine Construction Services, Inc.
Wytheville, VA

NRV Packaging, Inc.
Pulaski, VA

The Boys and Girls Club of Monroe Area
Madisonville, TN

Mahn Family Funeral Service
Red Wing, MN

Lexington Golf & Country Club
Lexington, VA

South Carolina Rural Water Association
Irmo, SC

Chimney Savers Solutions
Richmond, VA

Fairfax Memorial Funeral Home
Fairfax, VA

Environmental Chimney Service, Inc.
Fairview, NC

SESCO Client Inquiry — Staff Response

Question: Can employment be denied to an applicant based on their prior criminal history?

Answer: A distinction must be made between arrest records and conviction records. Because arrest records are not reliable evidence that a person has committed a crime, an employer would have difficulty justifying inquiries about an individual's arrest record. It is not recommended that employers inquire about arrest records on the employment application or during interviews.

Unlike arrest records, conviction records are reliable evidence that an individual actually committed a crime. However, a criminal conviction should not automatically eliminate an applicant from employment. The employer should consider when the crime occurred, the applicant's attitude about the crime, and the nature of the crime in relation to the job duties. For example, a bank would probably not hire a teller who had been convicted of embezzlement. On the other hand, a conviction for drug possession ten years ago might not exclude hiring a mechanic. Employers should check state laws for additional requirements regarding the use of criminal records in employment. Certain occupations such as child care workers and persons caring for the elderly may be subject to laws concerning criminal records.