Talk versus Email: When Electronic Communications Gets You Sued

 

Electronic communications are a mixed blessing. Business is more efficient and new ways of commerce continue to open. However, ubiquitous electronic communications have eroded our personal time and presented near-addicting distractions. From a legal standpoint, electronic communications, and especially e-mails, not only create damaging evidence but may even contribute to legal claims.

The Role of E-mails in Business

E-mails and increasingly text messaging allow us to quickly send detailed responses in a fraction of the time it may take to talk. It allows one to send messages in the wee hours of the morning when one could not call the other party. On occasion, a complex topic requires a written explanation or the recipient may be a visual learner who needs to read the instructions. Or perhaps you want to set the tone or provide essential background before engaging in the serious discussion and analysis with others. As a lawyer, I readily admit to crafting my clients’ e-mail communications to build a paper trail or to establish a necessary legal framework. Perhaps the issue is a sensitive legal point and you want no misunderstanding. All valid ways to use e-mail.

Of course, we may use e-mails when we simply do not want to talk to a person. Perhaps the person drones on and you simply don’t have the time to chat. Perhaps you consider yourself a cut-to-the chase kind of manager and don’t believe that you have the time for pleasantries. Perhaps the person has a difficult personality and you are trying to avoid conflict. Maybe you’re just swamped. And … sigh … how many of us foolishly multitask by sending emails while in a meeting or on the phone. I confess my guilt and my increasing acceptance of the fact that one often doesn’t multi task, but rather only does a half … er … halfway job on both tasks.

So e-mail is not “bad.” E-mail is a tool and can be used properly or improperly.

Properly Using the Tool

The proper use of e-mail in communications has been on my mind this week because I have seen situations where the e-mail process exacerbated a situation because of the lack of real time back and forth or because an employee responding was not acting in good faith and was using the e-mail to prevent amicable resolution. Therefore, I will provide some rules and guidance on the proper use of this tool.

    • In a perfect world, I’d tell you to draft every e-mail communication as if it will later be an exhibit in a trial … because it may in fact end up as evidence.  I’ll settle for you stopping and thinking in this manner about emails which deal with discipline, counselling, accommodation, complaints and investigation, serious safety matters, and similar HR and Safety topics.
  • Always ask yourself, “should I be making this communication in person or over the phone?” “Do I have a specific reason to use E-mail?”

 

  • If you have more than one reason for using e-mail, determine the main reason because your purposes may conflict with one another.  As an example, are you trying to build evidence or document your response?  Or is the principal goal to defuse a situation or to genuinely show employer interest and respond to a concern.  These two goals may conflict with one another.
  • These questions become more important when the recipient is a complaining employee.
  • E-mail is tone deaf. If the matter is sensitive or inflammatory, think through how a reasonable person will receive the message.  Does the message unintentionally come across as brusque or dismissive? 
  • What about perception? As another example, does the e-mail read as if you were attempting to engage in the interactive process to discover a possible reasonable accommodation, or does it look as if your mind is already made up?  Does the e-mail suggest the employer’s good faith or due diligence, or does it appear disinterested?  Does a discussion of the costs of abatement of a hazard appear to be a reasonable determination of feasibility and the most prudent way to expend capital, or does it appear that the employer is callous and putting money ahead of safety.  Remember, we are not talking about your intent, we are talking about PERCEPTION and how the communication may be spun.
  • Also consider how an unreasonable person might respond to an email.  Sometimes, no matter what you type, the person will find something objectionable and the communication will throw fuel on the fire or be misused as evidence against you.  A very short e-mail response or the use of other communication method may be wise.
  • Admittedly, sometimes e-mail is the only way to respond for any number of reasons, but when the other person is in any way reasonable, a face-to-face meeting allows you to read their expressions and revise your approach.

My conclusion? Think about your e-mails, especially in the HR setting, and use the tool properly.

Howard

 

Posted in ADA, attitude/culture, discipline and discharge, discrimination, employer policies, generational differences, internal investigations, performance improvement, social media, training, whistleblower/retaliation | Leave a comment

Why Am I Still Getting Sued By Employees?

(From Industrial Distribution Magazine).

After covering union challenges and safety compliance concerns in previous articles, we’ll conclude the series by discussing those common employment law claims that continue to vex distribution employers. I will deviate from the usual format and first provide some big picture suggestions on how to minimize all types of employment law claims.
 
Take a long and serious look at how you select and train frontline supervisors, and you may determine why many employment law claims occur. Frontline supervisors are often ignorant of the more challenging aspects of the Americans with Disabilities Act, the Family and Medical Leave Act and workers’ compensation retaliation protections. A related issue is that many frontline supervisors have not been trained in communication and in consistently applying workplace requirements. Advertisers long ago figured out that “perception is as powerful as reality.”  If employees feel that their supervisor was a “jerk” to them or treated them differently than their co-workers, the normal response is to believe that a sinister motive guided the supervisor’s actions. If one is over 40, Latino, African American, has a disability condition or recently complained about safety or discrimination, that person might suspect that he was treated differently because of one of those factors.

Some surveys show that more than 80 percent of employers are dissatisfied with their frontline supervisory development. When pressed, many employers cannot define what constitutes a “good” supervisor” or provide detailed examples of how they develop supervisors to manage employees. Not surprisingly, frontline supervisors say that the number one reason they are reluctant to discipline or discharge an employee is that they fear that they will get the company (or themselves) sued. As a result, supervisors allow performance problems to linger and fester.
 
Claims De Jour
Although claims of race discrimination have increased more slowly than other types of discrimination charges, they remain the most common claim. We have seen an increase in claims of national origin discrimination, but that also is a reflection of a changing workplace more than of negative attitudes toward new citizens or those of Islamic persuasion. One of the fastest growing areas involves allegations of same sex discrimination by male employees. In most cases, horseplay and teasing got out of control until an employee alleged that the treatment created a hostile environment or was based on his sex or other factor. And don’t forget about the rise in claims of harassment based on a mental or physical disability condition under the ADA.  However, any plaintiff lawyer will tell you that the three boom areas are:  the ADA, retaliation claims and wage-hour actions. We won’t talk about wage-hour claims in this article, but suffice it to say, few employers have classified all employees properly or maintained adequate records.  (CONTINUE READING AT INDUSTRIAL DISTRIBUTION MAGAZINE)

Posted in ADA, aging workforce, attitude/culture, discipline and discharge, discrimination, EEOC, employer policies, generational differences, harassment, managing legal matters, supervisor development, whistleblower/retaliation | Leave a comment

Warren Bennis, Safety, Labor Relations and Leadership

 

I love reading the Economist and they justified my appreciation with an August 9 Obituary on Warren Bennis, who they rightly described as “the world’s most important thinker on the subject that business leaders care about more than any other: themselves.”

I cannot do a better job than this article in describing this thoughtful and ethical man’s contributions to business theory, to leadership and to the question of “what matters the most?”

I’m also a fan of Peter Drucker, and the Economist contrasts their focuses:

If Peter Drucker was the man who invented management (as a book about him claimed), then Warren Bennis was the man who invented leadership as a business idea.

Central to his thinking was a distinction between managers and leaders. Managers are people who like to do things right, he argued. Leaders are people who do the right thing. Managers have their eye on the bottom line. Leaders have their eye on the horizon. Managers help you to get to where you want to go. Leaders tell you what it is you want. He chastised business schools for focusing on the first at the expense of the second. People took MBAs, he said, not because they wanted to be middle managers but because they wanted to be chief executives. He argued that “failing organizations are usually over-managed and under-led”.

Mr Bennis believed leaders are made, not born. He taught that leadership was a set of skills—that can be learned through hard work. Bennis’ autobiography was so appropriately titled: “Still Surprised.” Yep. Never stopped learning and evolving.

As the Economist explained, Bennis believed that “what constitutes good leadership changes over time:”

Mr Bennis was convinced that an egalitarian age required a new style. Leaders could no longer crack the whip and expect people to jump through hoops. They needed to be more like mentors and coaches than old-fashioned sergeant-majors. Top-down leadership not only risked alienating employees. It threatened to squander the organization’s most important resource: knowledge. There is no point in employing knowledge workers if you are not going to allow them to use their knowledge creatively.

A Management Labor Lawyer should love Bennis’ approach to so called business leaders over the last 25 years.  If business leaders heeded his advice, there would be few employee lawsuits, even lower union activity, and a safer workplace culture.  The Economist explains:

The last quarter of the 20th century often saw Mr Bennis in despair. He loathed the Masters of the Universe who boasted about how many jobs they had nuked and how much money they had made. “On Becoming a Leader” is full of prophetic warnings about corporate corruption, extravagant executive rewards and short-termism. He also lamented the quality of leadership in Washington, DC.

But he became more optimistic in his last few years, at least about the corporate world. The Enron, WorldCom and Lehman disasters taught businesses the danger of hubris. And a new generation of CEOs, whom he dubbed “the crucible generation” and compared to his own second-world-war generation, were more impressive than their immediate predecessors, characterized not merely by tolerance of other people, but respect for them.

I’ll conclude my post with the Economist’s fine ending:

When Drucker came to a party at Mr Bennis’ post-modern house on Santa Monica beach in California, in the late 1990s, the two men were a study in contrasts: Mr Bennis, thin, tanned and dressed in a light suit; Drucker paunchy, pale and encased in black. Mr Bennis talked animatedly about leadership. Drucker growled that what mattered was followership. But in fact the men were brothers under the skin and worthy counterweights to each other: big thinkers who took subjects too often synonymous with platitudes and gobbledygook, and, by dint of a lot of hard twisting, wrung some sense out of them.

I’ll leave it to the reader to ponder the implications of Bennis’ teachings to an employer’s role in workplace safety and HR.  For more information on Warren Bennis.

 

Posted in attitude/culture, management and leadership, supervisor development | Leave a comment

Safety Concerns When Buying or Leasing Office Space

What Should Be Your Safety Concerns When Buying or Leasing Office Space?

What is in this article?:

Are you counting on landlords or contractors to ensure that your office space meets OSHA and NFPA standards? That might not be the right move.

Use office safety as a way to engage employees. Find an employee who would enjoy involvement and give him or her the opportunity to assist you with safety.

Location and price generally control office-space decisions. Even if you construct a new building or do extensive build-out, you probably have not devoted much consideration to whether your new space meets OSHA requirements. 

It’s an office, after all – not a manufacturing plant or refinery. So you rely on your builder or landlord for that. You figure that they’re well-regarded contractors and developers, so presumably they adhered to OSHA requirements along with local ordinances and electrical codes. 

Unfortunately, OSHA standards mainly focus on employees working safely, and contractors don’t view the standards as dictating the final structure. Thus, contractors follow OSHA construction standards to protect workers building the structure, but they don’t really think about OSHA standards applicable to the finished structure in the same way that they faithfully adhere to National Fire Protection Association (NFPA) standards such as 70E or state or local building codes. Your building might be structurally sound and safely wired, but don’t be surprised if you discover a missing mid rail on a stairway or missing knock-outs in electric cabinets and fixtures.

CONTINUE READING AT EHS

Posted in safety programs, Uncategorized | Leave a comment

If Employees Are Unhappy With Politicians, Does That Make Them Mad At the Company?

One of my partners and I discussed what the results of yesterday’s NBC/Wall Street Journal poll might tell us about worker attitudes. NBC News pointed out that President Obama’s approval rating was at its lowest point.

The more troubling results of the poll were that 60% of Americans are dissatisfied with the state of the economy, and a whopping 70% said that, they believe that

“the Country is headed in the wrong direction.”

Nearly 80% stated that they were “down on the country’s political system.” Both parties may see political advantage in these numbers. However, any way one spins these numbers, they are not good for the Country.

The poll apparently did not ask employees what they thought about their employers. It would be interesting to see if there is a correlation between respondents who are frustrated with the Country’s political process, and those that are dissatisfied with their workplace. I suspect that a correlation exists. Would the employee who generally believes that the country is headed in the wrong direction decide that the workplace needs change … maybe more regulation or a union? Probably.

Much has been written about the end of the workplace Social Contract. Many employees believe that the 1950’s era Informal agreement that a company would take care of you if you did a good job has been forever breached.

The Occupy Wall Street Movement and its offspring, such as the attacks on fast food restaurants and efforts to legislate a “fair wage,” show that many employees are dissatisfied with our economic model.

One conclusion from the polls is that employers should not continue to engage in “business as usual.” Even before the Great Recession, employee productivity was on the rise and employees were doing more with less. Many managers are so busy that they do not think about their more vague duties to communicate with and respond to employee concerns.

Mix dissatisfied workers with over extended managers and you get conflict in the form of lawsuits, complaints to the government, and interest in unions.

And let’s talk about unions. Organized labor has become such an insignificant portion of the non-government sector that many employees know little about unions. Employees may not even know friends and family members who are in a union and their personal experiences. Among other things, this lack of familiarity may breed ignorance about legal and practical challenges presented by a union.

 It read employee handbook?   Even more importantly, has the employer taken steps to make a union unnecessary?

I don’t know if these dismal polling numbers will translate to employee legal claims. Perhaps the so-called “summer of discontent” will only affect the political process. Nevertheless, the wise employer should use these polling results as a motivation to train managers and supervisors to better communicate with their employees and to respond to employee concerns.

Posted in cultural changes, management and leadership, managing legal matters, Uncategorized, whistleblower/retaliation | Leave a comment

Four Steps for Managing Employees from Afar (from Construction Business Owner)

Follow these steps to avoid OSHA violations and ensure your workforce values safety and professionalism regardless of who is watching.
Written by:

Howard Mavity

Published:

June 1, 2014 

 

A CEO friend of mine was trying to exit a hotel. As he emerged from the designated exit stairway, he 
almost fell into a hole and tripped over construction debris. Spotting a contractor foreman, he reasonably pointed out that the workers were violating a host of OSHA and local codes and that the head of the state’s OSHA agency was actually meeting with his supervisors at that same hotel. This moment of politeness was greeted by an expletive and then dismissed. When the CEO returned to his office, he asked his construction managers if they had heard of the contractor. “Why, yes,” they responded, “we use them a lot.” The CEO’s response? “Not anymore.”

Many employees work alone at a customer’s site with no immediate supervision or safety professional to check for hazards and ensure professionalism. Many employees, such as journeymen electricians and certified crane 
operators, are trained to operate with minimal supervision. Other workers may be less equipped to individually analyze their settings. Unfortunately, both types of isolated workers may violate OSHA standards or act unprofessionally, as in the case of the soon-to-be ex-foreman mentioned above. Preventing that misconduct is more of a problem when employees—even those who are experienced—are working alone. In fact, the majority of the nearly 500 workplace fatalities I’ve managed involved experienced employees, not new hires. Experienced workers may become lax about hazards, or when fatigued, lose sight of good judgment.

An employer has some level of duty to protect its employees whether they are on the employer’s work site or working elsewhere. The employer cannot delegate this responsibility to others even when another employer controls the work site. The employer retains responsibility to protect its people—even highly skilled workers who are trained to operate alone. OSHA can cite multiple employers on the same job. For example, OSHA might cite the work site 
owner for creating the hazard and the actual employer for allowing its employee to be exposed to the hazard. However, a contractor can’t send a safety manager to conduct a site safety analysis at every power pole, ready-mix delivery or work site where skilled craftsmen are working alone.

Photo courtesy of ClickSafety of a Webcor Builders Jobsite by Ryan Hefferman Photography

If an accident occurs, OSHA will ask the employer many of the same questions that it would ask if the employer 
controlled the work site or had a supervisor present: Who did the site safety analysis? How did you monitor employees and ensure that they used fall protection? Did you 
conduct a pre-work meeting? When did these employees last attend a safety meeting?

You may assume that employees confer throughout the day with supervisors, dispatchers and technicians. You may have trained employees to exercise greater responsibility when working alone, but are these procedures documented? To ensure your employees maintain safe and 
professional conduct while on the job and to avoid violating OSHA regulations, follow the steps below.

(CONTINUE READING AT CONSTRUCTION BUSINESS OWNER)

Posted in construction, employee engagement, hazard assessment, OSHA, reducing injuries, safety programs | Tagged , , , | Leave a comment

Two New Webinars: Bullying, the NLRB and Its War On Employer Rules and “Live From the AGC National Safety Committee Meeting.”

Dealing With Workplace Bullying And Misconduct While The NLRB Challenges Your Rules
Join us for a Webinar on July 24
Space is limited.
Reserve your Webinar seat now at:
https://www1.gotomeeting.com/register/137864872
A quarter of American Workers claim to have been seriously bullied at work, and many discrimination and other claims were caused by such employee misconduct, rather than unlawful actions.  Many employers have implemented “anti-bullying” policies or made employee civility and code of conduct rules more robust.  Unfortunately, the NLRB is aggressively attacking policies which might discourage employee’s exercise of their Section 7 rights to organize.  While the D.C. Circuit Court has pointed out that union organizing is not synonymous with abusive and threatening behavior, the NLRB does not appear to agree.

 

Title: Dealing With Workplace Bullying And Misconduct While The NLRB Challenges Your Rules
Date: Thursday, July 24, 2014
Time: 3:00 PM – 4:00 PM EDT

 

After registering you will receive a confirmation email containing information about joining the Webinar.

 

System Requirements
PC-based attendees
Required: Windows® 8, 7, Vista, XP or 2003 Server
Mac®-based attendees
Required: Mac OS® X 10.6 or newer
Mobile attendees
Required: iPhone®, iPad®, Android™ phone or Android tablet

Live From The AGC Of America National Safety Committee Meeting

Join us for a Webinar on July 17
Space is limited.
Reserve your Webinar seat now at:
https://www1.gotomeeting.com/register/945519040
Howard Mavity will host three nationally regarded safety professionals to discuss concerns and lessons gleaned from the July 16 through 18 AGC National Safety Committee Meeting in Portland.  Nationally regarded safety professionals, Bob Emmerich, P.E., and Jim Goss, will join Kevin Cannon, Director of Safety and Health Services  of the AGC of America.  We will discuss trends in OSHA enforcement, new technology for safety efforts, and challenges and solutions raised by construction attendees.

 

Title: Live From The AGC Of America National Safety Committee Meeting
Date: Thursday, July 17, 2014
Time: 12:15 PM – 1:15 PM PDT

 

After registering you will receive a confirmation email containing information about joining the Webinar.

 

System Requirements
PC-based attendees
Required: Windows® 8, 7, Vista, XP or 2003 Server
Mac®-based attendees
Required: Mac OS® X 10.6 or newer
Mobile attendees
Required: iPhone®, iPad®, Android™ phone or Android tablet
Posted in attitude/culture, construction, discipline and discharge, discrimination, employer policies, harassment, internal investigations, management and leadership, NLRB, OSHA, safety programs, workplace violence | Tagged , , , , | Leave a comment
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