A Fast and Furious Safety, Labor and HR Update 1 (3/26/16)

A New Approach to My Posts

Last week I was honored to be named a Top Author in J.D. Supra Readers’ Choice Awards. I write a great deal when I should probably be billing, but you guys seem to enjoy my stuff, so thanks! However, I often read an article or have an experience which merits discussion, but I don’t have the time to prepare my preferred detailed analysis.

So, this Post is my first effort to alert you to a number of important issues and link you to pertinent articles without as much discussion. Hope you find these observations useful in your business.

Howard

A Flurry of D.C. Activity

We’ve told you that this Administration is not going out quietly. They will work until the midnight hour of their last day in office to change the law by regulation, decision, directive or fiat. On Wednesday, March 23, the US DOL released the long-awaited “Persuader Rule.” On Thursday, Secretary Perez announced the even longer awaited Silica Rule. On March 22, the NLRB issued its Memorandum on “Mandatory Submissions to the Division of Advice,” which shows the NLRB’s aggressive priorities. We assume that we will soon see the release of OSHA’s Electronic Reporting Rule.

US DOL Persuader Rule

So what you may ask is the “Persuader Rule.” See our recent Alert for more detail. Many commentators view this rule as an effort to make it more difficult for employers to obtain legal guidance in responding to a union organizing effort. However, assuming that the proposed Rule survives the inevitable legal challenge, management labor law firms will comply with the regulation and still continue to provide needed legal counsel. The current NLRB has reversed 40 years of precedent and in this brave new world, employers need legal guidance on bargaining units, handling routine discipline and discharges during election campaigns, and avoiding promising benefits or wrongly changing existing terms and conditions of work.

ACTION POINT: Recognize the confusing changes in NLRB enforcement and seek advice to avoid pitfalls. An employer cannot respond to a Union Representation Petition in the same fashion as it did under past Administrations. Trust your attorneys to obey whatever eventually emerges as the Persuader Rule. It’s manageable.

Silica Rule

DOL Secretary Perez announced OSHA’s new Silica Rule on Thursday. This is the second time that Secretary Perez or OSHA Head Dr. Michaels used a widely broadcast NPR show or series to gain maximum coverage, which is a great way to gain the maximum public impact. Dr. Michaels previously used NPR to announce the 2015 Hospital Ergonomics and Workplace Violence Effort.Dr. Michaels views the Silica Rule as his legacy achievement now that the I2P2 Rule is seemingly DOA. The Agency’s proposed rule would set a new permissible exposure limit (PEL) for respirable crystalline silica of 50 micrograms per cubic meter of air calculated as an eight-hour time-weighted average (TWA), down from 100 micrograms for general industry and 250 micrograms for construction and shipyards.Construction employers will struggle, but we worry that the new Standard will especially harm foundries and primary metals. There are also reputable studies showing that if the current OSHA Standards were effectively enforced, almost all of the employees expected to benefit from the new standard might be equally protected. The AGC of America’s Analysis is indicative of industry groups’ valid concerns. See also the American Foundry Society page. Silica must be addressed but there are many concerns about OSHA’s approach.

ACTION POINT: Carefully review your compliance with the existing OSHA Silica Standard cut-offs and determine where the new much lower PEL’s will affect your operations and how to comply.

EEOC Issues

I am always shocked when I see a discrimination case involving a “noose.” There is nothing more inflammatory than using a noose as a joke. A recent 9th Circuit case reminds us that employees remain capable of doing such foolish things. The important point is that some moron did not idly walk in one day and decide to place a noose as a misguided joke. Teasing and banter probably started out innocently and grew into a monster. If teasing and horseplay are allowed to get out of hand, these actions can mutate into bullying or harassment.

ACTION POINT: Train supervisors to recognize and control bad behavior at early stages before it results in harassment or discrimination claims or workplace violence.

Another case shows the importance of your written job description. An Oregon ADA-case has been allowed to proceed where a Sales Rep claimed that driving was not an essential function in the job and that if it is essential, providing a driver is a reasonable accommodation.

Action Point: Review those job descriptions and make sure that all essential functions are covered.

Wage-Hour

You have no doubt seen the articles about this week’s Supreme Court decision allowing statistical analysis to be used in a “donning and duffing” wage-hour class action instead of requiring individualized evidentiary analysis. This decision makes it much easier for plaintiff employees to pursue class actions. Attorneys are still debating the extent to which this is a fact-specific ruling.

ACTION POINT: Maintain accurate timekeeping records to make individual, class and collective actions more difficult to pursue.

Workplace ViolenceEmployers are wrestling with an expanding list of questions:

  • Should I respond to reference checks on former employees with violent histories?
  • Are there settings where we should allow employees to bring firearms on site?
  • Should we ask employees to tell us when they are involved in domestic abuse situations and/or seek a restraining order?
  • What is our “duty” to employees and their coworkers with regard to outside threats?
  • How do we handle employees going alone to customer jobsites or homes?
  • How can we recognize signs of potential violent behavior?
  • What’s our duty of accommodation to people with mental or emotional issues who display violent or antisocial behavior?

We are hosting two webinars on March 29 and April 14, where we will discuss these issues with several current and former security or law enforcement advisors. We’ll start with the list on March 29 and continue on April 14

Drones

Construction, mining, agriculture, entertainment, utilities and other types of employers are using (or want to use) drones. As many as 2.7 million commercial users are predicted by 2020. Groups such as members of the National Association of Tower Erectors (NATE) are effectively using drones on a wide scale. However, the FAA has not yet provided official guidance for commercial use.Much of industry is awaiting FAA guidance. Currently one needs, among other things, an exemption to Section 333 of the FAA’s Modernization Reform Act of 2012. It is expected that the FAA will not require a full pilot’s license but employers and lawyers will still wrestle over the definitions of adequate training and procedures.

Chris Gibson of Sentera recently spoke at the Carolinas AGC HR and Safety Conference about how they train their professional operators or customer-employer operators. Sentera also works with Boeing on assembling and modifying drones for commercial use and is an impressive organization. Drones are surprisingly simple to operate, but once the FAA issues guidance, employers will be expected to determine and follow industry standards, and companies like Sentera, provide examples of the training and procedures that they deem necessary. If you use drones, make sure that you can show that you are following industry best practices.This week’s Construction Today includes a detailed article by Georgia Tech Professor Dr. Javier Irizarry, P.E., CGP, Professor of Building Construction and Director, CONNECTech Lab. Things to Consider B4UFLY a Drone on a Jobsite.

Examples of Superior Safety and Building Ideas

The winners of the AGC-Willis Safety Awards were announced at the AGC National Convention this month. We have linked to the Lists of the Winner’s Best Practices from 2014 and 2015. Can’t wait to see the 2016 List of Best Practices. I know the Judges of the exhausting process used to determine the winners. If a contractor wins 1st, 2nd or 3rd in a category, they did far more than draft nice policies and achieve a low recordable rate. This year, Sundt Construction, Inc. was the Grand Award Winner. Try to imagine what it takes for a company this large to so excel in its safety efforts. I’ve served on the AGC National Safety Committee with Sundt Safety Professionals and they deserve the award. Got other clients and friends on the list, such as Faith Technology, and we’re proud of them.

Follow this link to the AGC Alliant Building Awards, which were also released at the AGC National Convention. Must give a shout out to Gilbane. See also: http://www.businesswire.com/news/home/20160322005228/en/Alliant-Announces-Winners-2016-Build-America-Awards . Send us information about other safety and HR Awards.

Follow this link to Construction and Engineering giant AECOM’s recent release of its thoughtful 2015 AECOM Safety Report: Getting to the Heart of Safety. I’m sure that AECOM would wisely state that they are a work in progress, but what does it say about a company that they go to such effort for an annual US and International Safety Report? AECOM includes sterling safety professionals from URS, Hunt, Tishman and other entities and seems to be drawing ideas from an All Star Team.

Send me your ideas and we’ll tout them.

Finally, 11,000 employee Children’s Healthcare of Atlanta, deservedly recently won its 10th consecutive placement on the elite “Fortune magazine 100 Best Companies to Work For.” Their win (again!) was not an accident. CHOA is wildly creative in how they recognize employee achievements and they celebrate and support employees who are pregnant, seek to improve their health, or serve in the US armed forces. Recently, CHOA formed teams of runners to push runner wheelchairs of disabled kids in the Atlanta Half marathon. Try to top that!

Seriously, send examples to me.We’ll talk in future posts about other Construction and General Industry employers and their journeys in improving their safety, quality, and creating a workplace where employees want to work. We can learn from each other’s’ successes AND stumbles. There are only two stages in business … improving or declining. There is no such thing, at least in my experience, in staying the same. What do you think?

Self Help, Management and HR Guidance

I try on Twitter (@howardmavity) to review and repost Articles which are unique and practical but it’s a near-overwhelming task. Please send us articles and posts that you find useful to your work. My buddy Travis Vance does the same (TVanceLawyer).

SITUATIONAL AWARENESS.

We’re often oblivious to our surroundings and that’s a problem for quality and especially for avoiding hazards. I fought full-contact mixed martial arts until I was 5o and had to undergo surgery to repair my optic orbit. Yes, I know that sounds weird, but the comraderie was great and no one intended to hurt one another. As I got older, I was fighting men one half my age. As I aged, I had to be supernaturally alert just to survive. There is something to that old saw about guile overwhelming youth, but only so far. A useful side effect of my middle aged efforts to survive is that I automatically and continuously survey EVERY setting, and even my jock 21 year old son is amazed at my reflexes when I am in LA traffic. My point is that we MUST train workers to be situationally aware. They must never become nonchalant. Employees must constantly evaluate their workplace for hazards.

This attitude is also vital if one has the misfortune to be in an active shooter scenario. Most employees would freeze and/or fall to the ground. That would not be my response. Admittedly years of boxing, judo and karate means that I’d refuse to be a victim. I’d be a hunter. But you don’t have to have 20+ years of fighting experience to be situationally aware. A situationally aware person would somehow find a way to run, and that’s the right decision in most cases.We can’t encourage our workers to get the snot beat out of them for years in martial arts, but we can train employees to constantly survey their environment and to react.With that rather self-serving introduction, please review The Art of manliness’ article: 10 Tests, Exercises, and Games to Heighten Your Senses and Situational Awareness  

Many of us are addicted to social media, so read this article: http://www.entrepreneur.com/article/273031

There are so many worthy articles on this topic, but I really liked 11 Skills that are Hard to Learn but Will Pay Off Forever. These suggestions are so damned practical.

There is so much more that I could share. Let me know what subjects most interest you. I am fairly efficient at reviewing electronic media and I’ll happily post what interests you.

Thanks again for reading my posts. The literally tens of thousands of hits I have received has been an honor. Let me know WHAT YOU WANT TO SEE.  I’ve already received quite a few suggestions after posting this piece last week at Fisher & Phillips Workplace Safety and Health Blog.

 

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Is Your M & A Due Diligent Analysis Really that Diligent?

Due to employers’ understandable aversion to paying legal fees, they often wait until something goes wrong to avail themselves of counsel. That’s regrettable because guys like me with over 30 years of specialized experience prefer to assist clients in avoiding problems and using human capital to succeed. Despite the huge sums paid to lawyers in M& A transactions, many due diligence efforts are rote and ineffective with regard to labor, employment, and especially safety concerns. There are recognizable standards and guides to environmental due diligence but safety due diligence efforts seem to flummox even solid law firms and consultants.

The safety due diligence efforts focus on injury and illness data, OSHA citation history and EMR or other workers comp numbers. These are lagging indicators and tell you almost nothing about the compliance and safety culture of the target company. Even worse, focus on these items and supposed benchmarking with other companies can distract the purchaser from the real meat. Not only may the purchaser miss costly items, they hinder the crucial post purchase integration efforts.

So it was with pleasure that I agreed to participate in Environmental Resource Management’s (ERM) balanced seminar at Georgia Tech next Tuesday (March 31) to discuss the safety issues along with ERM’s professionals’ explanation of environmental issues.

Information on this timely session can be found at ERM’s site. http://www.erm.com/M-A-workshop-Atlanta-March2015

Topics include:

  • Hidden Risks – Understanding ESG (environmental social and governance) matters as part of an acquisition.
  • Safety Due Diligence – Know what systems, culture, and risks you are acquiring. How to develop the right scope to strike a balance.
  • ASTM Phase I ESA Data versus Early Diligence and Critical Analysis of Possible Risks and Liabilities – How to gather the right data so that leadership can make good decisions in a timely manner.
  • Post Merger Integration – Addressing identified EHS risks and making the most of the EHS opportunities following a merger or acquisition.

If you do a proper due diligence into not just safety programs, but also into culture, history, and integration, you’ll not only gain a better picture of the costs ahead, but lay the foundation for later integration efforts. Many integration efforts are haphazard and driven only by efforts to achieve cost savings. Is that really how you want to integrate acquired companies? What happened to using the best of both companies? Is safety just one more item to check off or due to want to incorporate it into Lean manufacturing efforts and as a way to assimilate and engage employees?

I’ll write more on this topic in the future, but in the interim, attend the conference if opportunity presents.

Howard

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Unions and Third Party Groups Use Safety to Attack Fast Food Restaurants

 

Yesterday was one of those occasions when I wish that my predictions had been inaccurate. I have speculated that the SEIU and other unions harassing fast food restaurants would eventually add mass OSHA complaints to their joint employer, discrimination, living wage, and other attacks. Yesterday, you probably saw the articles about “Fight for $5’s” coordinated effort to file OSHA Complaints in 19 cities.

Now, don’t get me wrong. Restaurants, just like every other employer, must remain vigilant to protect their workers and to ensure compliance with OSHA standards. However, I question the sincerity of those OSHA complaints. I am sure that many restaurants need to improve compliance and safety, but I do not like third parties using OSHA’s limited resources to advance other agendas. OSHA deserves a larger budget, but until that exalted day, they have to employ their resources where they are most effective.

The SEIU and other groups readily admit that the OSHA complaints are the latest part of their “Fight For $15 Campaign” which allegedly seeks to hold restaurants accountable for working conditions at franchise locations. The unions’ obvious goal is to eventually organize the huge number of fast food workers, but the transitory nature of such workers has traditionally made them unreceptive to joining a union. The strategy is to make employers so miserable that they give up and simply agree to a card check or other reorganization effort instead of an NLRB-supervised election.

The Complaints are against Franchisees, but is the union trying to involve the Corporation?

Under existing OSHA law, and OSHA’s Multi-employer Citation policy, absent corporate employees on site, it’s difficult to see how the Corporation would be citable based on requiring adherence to corporate standards. Thus, individual franchise restaurants should not be treated as part of the McDonald’s corporation for purposes of determining repeat violations of the same standards for McDonalds Corporation. Company stores would be different. If a franchisee owns more than one unit, other units could be exposed to Repeat violations if the same violations occur in a five year period. Repeat citations of routine items account for most of the six figure citations against companies with multiple locations. I do not see how the corporation would be subject to OSHA citations for individual franchisee’s stores. However, given the NLRB’s recent efforts to allege joint employment between restaurants such as McDonald’s and their franchisee, it will be interesting to see OSHA’s approach.

Use this concern to “Check” OSHA Compliance.

In the interim, restaurants should treat these complaints as a wake-up call to ensure that they are in compliance with OSHA’s standards. Keep in mind that you may maintain a safe work environment but still miss certain OSHA requirements. Likewise, OSHA standards are just part of a good employer’s safety efforts.

Common restaurant OSHA violations include:

  • allowing materials to occasionally block exits, fire extinguishers and electric panels, such as during deliveries;
  • inadequately marked exits; unacceptable accumulation of water on the floor and trip hazards
  • failure to maintain Safety Data Sheets (SDS) for hazardous chemicals used
  • failure to document training employees who wash dishes, clean and perform other duties which require such chemicals
  • adequate eye protection and other PPE for the use of chemicals

The Press Releases and posted “Fight For $15” video emphasizes exposure to grease burns; especially associated with cleaning and emptying grease. Restaurants should carefully check for proper procedures, PPE, and disposal practices.

Do Restaurant Managers know how to handle an OSHA Inspection, as well as handbiling and protesters?

Most restaurant managers never meet OSHA and have no idea how to manage an OSHA inspection. The way in which they manage the inspection may be the difference between a good result and thousands of dollars in citations. Is a corporate, private consultant, trade association or law firm ready to advise such managers?

It is questionable whether the unions’ latest efforts will in anyway assist in organizing restaurant franchisee employees, but review my past article about UNITE-HERE’s multi-year safety attacks on the Hyatt Corporation if you want to see the extraordinary expense and hardship such corporate-wide attacks can cause. You might also review these past posts on third party attacks on Retailers, Restaurants and on Distribution.

Howard A Mavity

Fisher & Phillips LLP

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The Pragmatic Lawyer’s View of Building a Safety Culture

From SAFETY OUTLOOK


After 30 years of practicing labor law and managing more than 500 fatality cases, I am a pragmatic guy and I don’t like jargon. I look for practical solutions. And yet, I absolutely agree that we must do more than “comply,” we must build a safety “culture.” One can achieve decent compliance by diligence and discipline. Of course, “compliance” with OSHA standards will not alone prevent injuries. Even more tellingly, a practical focus on preventing injuries will not guarantee that you’ve crossed all the “t’s” and dotted the “i’s” to comply with OSHA standards. One has to expressly focus efforts on both goals. The only way to have a decent shot at achieving both of these goals is to build a “culture” in which employees and management automatically and continuously stop, consider the hazards, then address them. We can’t force this mindset. Management has to visibly embrace it and then convince employees that they are as serious about maintaining a safety culture as they are about other business goals. Sure, safety is a “core value,” but that term may be a bit too theoretical for a chief financial officer or plant manager. I prefer to treat it like any other business goal with plans, mile markers and accountability.

Marketing Safety

Our first challenge is thus to market the “culture” concept to management, and that involves disabusing them of some erroneous assumptions. First . . . every CEO genuinely believes that “safety is number one.” It’s not. Few executives have a realistic grasp of their safety culture, and many assume that they are just fine, thank you. In fact, a safety culture always is improving, otherwise it’s going backwards. I’m wary of the executive who blithely assumes that safety is number one. The CEOs that I trust will wince and candidly admit that they’re taking concrete steps to build a safety culture, “but they’re not there yet.” That’s the desirable mindset; then you can work on even building “passion.”

The second erroneous executive assumption is “I’ve got good people who take care of safety.” If executives silo safety as a task that only the safety professionals handle, compliance won’t occur and the culture will be one that is, at best, ambivalent. No number of safety professionals can build a safety culture without leaders pushing concrete steps to engage employees and managers.

This problem leads to our next “marketing challenge” . . . the safety professional’s attitude. Some safety professionals seem to view themselves as lone crusaders in an “us against them” battle. Granted, some companies’ safety atmosphere can contribute to such attitudes, but that’s irrelevant. The safety professional’s job is to protect workers and one does whatever it ethically requires to achieve this goal. Accordingly, I enjoy working with safety professionals that have so immersed themselves in the business process that managers view them as their partners in manufacturing or distributing goods, except that the safety professional also keeps them straight about safety. We can’t become “internal affairs cops.” Master the business. Focus on making it better … and using safety to do so.

(CONTINUE READING AT SAFETY OUTLOOK).

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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 | 1 Comment