Pennsylvania Employment Lawyer & Attorney : Russell Krafft & Gruber Law Firm : Lancaster, York, Harrisburg

Being Named one of the Best Places to Work in PA is an honor for any business.  We contacted Amy Eidemiller of RGS Associates, Inc. which was named to the list of best places to work in Pennsylvania. We asked Ms. Eidemiller to comment on her experience by answering the following questions:

What motivated your organization to pursue the award?

Amy: RGS has a corporate philosophy of continuous improvement. We utilize annual employee satisfaction surveys to help gauge our employee’s attitudes on the things that are important to them, including work experience, benefits satisfaction, and the overall health of the company. We identified “Best Places to Work” as an opportunity to integrate two strategic goals: (1) receiving feedback from staff, (2) being recognized as a great place to work. Our goal was to go through the application process the first year and gain valuable feedback to use as part of our strategic plan going forward. I must confess it was a bit frightening to take the employee survey process to a more public forum like the Best Places to Work, but we made a decision to go forward.

We were beyond excited to be chosen as #20 Best Places to Work in PA in the medium size company category the first year.   Upon notification that we had won, we celebrated with a companywide announcement at the end of the day. The recognition and reward of being a “Best Place to Work” in PA has been fantastic for all of us! 

What makes RGS one of the top places to work?

Amy: Organizations who want to be a company of choice for employees and clients, must find ways to differentiate themselves in the marketplace. We believe that great organizations pay close attention to their culture.

Company culture has internal and external aspects.   From an internal perspective,  RGS has an amazing group of 39 professionals committed to exceeding client expectation in our project delivery and results.   The company was built on a continuous improvement philosophy and a strong company culture. Cultural values including trust, teamwork, and communication were part of our culture from day one. When employees have a strong level of trust in company leadership, amazing results take place. At RGS, we’ve created a partnership between leadership and staff members; we truly are in this together. Key performance and strategic information is shared with the team at monthly staff meetings. Client relationships are solid and staff satisfaction is high because our employees know their work performance is the key contributor to company success. 

RGS's culture also has an external impact. It motivates us to give back to the community by our staff volunteering time to activities. RGS sponsors an annual golf tournament to raise funds for the American Cancer Society and all staff members participate by either helping or playing golf. This is just one example of a company opportunity to serve the community, build on teamwork among the staff, and gain recognition of being a business that cares for others.

What collateral benefits are there for receiving such an award?

Amy: This award is symbolic of the pride our staff takes from being a part of this organization, which has positively impacted our staff retention and recruiting efforts!  The engineering and land planning industry is experiencing an extreme shortage of professionals nationwide. This serves as an opportunity for us to differentiate ourselves in the marketplace for the best talent. We also used the survey results to benchmark ourselves against the other “Best Places to Work” companies to see where we could make additional improvements, showing our staff we are continually looking for ways to raise the bar. The resources required to participate in the “Best Places to Work” award process, continues to provide a significant return on the investment for RGS Associates.

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The immigration reform battle on Capital Hill turned into a skirmish over the EEOC's enforcement of to English-Only rules in the workplace. By a narrow 15-14 margin, a Senate Appropriations Committee voted June 28 to approve an amendment designed to prevent the EEOC from bringing new lawsuits against companies that adopt English-Only workplace rules. As is often the case, Congressional policy disputes find their way into agency funding bills.

The EEOC views English-Only Rules as potential national origin discrimination and has adopted regulations prohibiting them unless the employer can show that the rule is justified by business necessity.   According to the EEOC's COMPLIANCE MANUAL, an English-only rule is justified by "business necessity" if it is needed for an employer to operate safely or efficiently. The following are some situations in which business necessity would justify an English-only rule under the EEOC's view:

• For communications with customers, coworkers, or supervisors who only speak English
• In emergencies or other situations in which workers must speak a common language to promote safety
• For cooperative work assignments in which the English-only rule is needed to promote efficiency
• To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers

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Most HR professionals abhor their role as "fashion police" and arbiter of seemingly childish workplace skirmishes over perceived wardrobe malfunctions, odoriferous perfumes/colognes and other personal hygiene gaffs. However, ignoring these matters can land an employer in court for an alleged violation of the American's with Disabilities Act ("ADA").

A recent AP article entitled "Eau de Lawsuit: Woman sues over scent" describes an employee in the Detroit planning department who claims she is severely sensitive to perfumes and other cosmetics. She has sued the city, saying a co-worker's strong fragrance prohibits her from working. Her lawsuit under the ADA claims that her employer failed to accommodate her disability by banning perfumes in the workplace.

Seem odd? A quick review of the ADA case law shows no less that 18 reported court decisions with similar facts. In Davis v. Utah State Tax Commission, the employer was held liable for an ADA violation because it failed to engage in the interactive process to evaluate possible accommodations. In Kaufmann v. GMAC Mortgage Corp., the employer prevailed because it took steps to accommodate and the court recognized that providing a completely scent-free environment was unreasonable.

The difficult employee relations issue presented is the balancing of one employee's ADA rights with other employees' personal rights. As many employer's have learned, the ADA rights trump personal rights in the workplace. Nonetheless, employer's must avoid disclosing too much confidential medical information or allowing the disabled employee to be ridiculed or harassed for the requested accommodations.

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The incidents of corporate raiding and mass employee defections to competitors are on the rise as businesses scramble to find and retain high quality employees. Under any business model, it is far easier to recruit away a group of experienced employees with a "book of business" than it is for an employer to start from scratch.   Whether or not these actions are "illegal" or just aggressive competition primarily turns upon the existence of any contracts limiting competitive activities by employees and former employees.

Corporate raiding isn't just a Wall Street phenomenon. It was recently reported that Resource Bank, a Virginia based subsidiary of Fulton Financial Corporation, was hit with a defection of nearly its entire mortgage company staff to a rival lender. The employees allegedly followed two executives who are now accused of orchestrating an employee raid. The former Resource Bank executives signed employment agreements containing restrictions on soliciting employees on behalf of a rival business. This good business practice will undoubtedly form the primary basis for legal claims by Resource Bank against its competitor.

Noncompetition Agreements are invaluable in protecting legitimate business interests provided they are carefully drafted and properly executed. Such agreement typically contain some or all of the following clauses:

• Prohibitions on a former employee's competition by working for or starting a competitive business.
• Restrictions on soliciting, selling to, or providing services to customers and prospective customers of the former employer.
• Restrictions on soliciting employees of the former employer.
• Prohibitions on using or disclosing confidential business information of the former employer.

There are special legal requirements for noncompetition agreements under Pennsylvania law. As restrictions on free trade, these agreements must be:

• Necessary to protect an employer's legitimate business interest
• Entered into at the commencement of the employment relationship or supported by "additional consideration" in the form of a promotion or payment
• Reasonably limited in duration and geographic scope

On the other hand, prohibitions on disclosure of confidential information need not be supported by consideration or limited in duration. However, it is essential for an employer to define the scope of what is confidential by delineating the specific categories of material and taking steps to keep it from entering the public domain.

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Beginning September 30, 2007, Employers who are required to submit EEO-1 Reports to the Equal Employment Opportunity Commission (“EEOC”) must do so on a new form. The EEO-1 Report collects annual data on the race, sex, and ethnicity of the workforce of private employers with 100 or more employees and certain federal contractors.

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Merrill Lynch is reportedly cracking down on time off abuses through new attendance guidelines that provide for a verbal warning and possible loss of pay after use of four sick days and termination after use of nine sick days without valid excuse. The new corporate policy is purportedly designed to reign in workers who misuse sick days by playing hooky on nice summer days, extending weekends, etc. The new policy replaces a program that providing up to 40 sick days per year.

Sick day programs are one of the most fretted over of all employment policies because they involve so many management and legal issues. Sick time is disruptive to the workplace because it is almost always unscheduled. Misuse of sick time has a dramatic impact on employee morale because of work inequity perceptions. Employers must manage abuses within the legal parameters imposed by the wage & hour laws, disability discrimination protections, Family and Medical Leave Act compliance, and wage payment regulations.

Almost every employer offers some form of sick time benefit.   Statistics show that the average business offers 8.1 sick days per year, but employees use only 5.2. However, the growing trend is away from traditional sick days to creating a paid time off bank (PTO). PTO programs combine into one pot all categories of time off, like vacation, sick days, personal days, and floating holidays. Some of the advantages and disadvantages of PTO are as follows:

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Helicopter parents may hover over their children, but what's their management style in the workplace when it comes to other people's kids and their peers? Phyllis Weiss Haserot on her Blog "Practice Development Counsel" posted a set of questions concerning how Helicopter Parents operate as managers in the workplace some of which are as follows:

• Do the helicopter parents (those that hover too much and interfere) exhibit similar behavior with their juniors as they do with their children? Do they bring their parenting style to the workplace to over-protect and push their people ahead?

• Or do they take an opposite approach and expect great results without giving the guidance and support they want for their children?
• Are Baby Boomer managers (only some of whom are "helicopter parents") hard on younger generation workers because they are demanding the results they would like to see from their children, but without the coddling they give their kids?
• Is it because many Boomers are so competitive and status conscious that they want everyone (children, junior people on their work teams, etc.) to make them look good?

If we assume that Helicopter Parents operate as Helicopter Managers too, what impact will that have on the workplace culture and risks of litigation?

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The Today Show featured a story on "Helicopter Parents : Helping Your Child Get a Job" which was an interesting foil to our recent posting.   Matt Lauer's guest was Dr. Michele Borba (whose blog appears on iVillage website). Dr. Borba referred to some helicopter parents as 'Blackhawks" and said  that these parents haven't struck the correct  balance between "mentoring and meddlesome". However, the show noted that many large companies like General Electric are embracing helicopter parents by inviting them into the recruiting process and targeting them with advertising. I think  employers will need to be flexible in their approach to parents in the recruiting phase. Human resource professionals face the challenge of drawing the boundary at the workplace once the recruit is hired.

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Imagine that your company has decided to make a job offer to a very promising Ivy League MBA candidate. You call the candidate to communicate your company's very generous offer and what's the response?

"My mom will call you back to negotiate my compensation package". Welcome to your first encounter with a "Helicopter Parent". For the moment, let's leave aside the issue of whether this level of parenting does more harm than good and focus on the issue as framed by Stephanie Armour in her recent USA TODAY article:

Employers are finding that parents are increasingly involved in their children's job choices, as "helicopter parenting" extends to the workplace.

As Generation Y enters the job force, parents of new hires are calling employers to negotiate salary and benefits, and some are even showing up at job fairs. It's a new dynamic that has some employers responding by training recruiters and managers how to handle "helicopter parents," who hover over their children's lives.

Here are some considerations that I think are worth evaluating in anticipation of Mom or Dad's call:

• Temper your Gut Reaction: The almost universal reaction of most Baby Boomers and Gen X'ers to this scenario is shock and aghast. How can this seemingly bright candidate allow parents to run his or her life? However, this is a value judgment that ignores the sociological and demographic facts. The real questions are: Do you want the candidate or not? Are you willing to negotiate under these terms?

•  Balance the Pushback: Hey why not? Professional athletes and Hollywood stars, have agents do their negotiations and no one considers that a poor reflection on their future job performance. Evaluate whether parental involvement at the recruiting stage is really indicative of an inability to perform in the job. Obviously, these three-way conversations will have to stop once the candidate becomes an employee because that truly relates to job performance.

• Consider the Sociology: Generation Y also called the Millennials has already been labeled with there own set of workplace attitudes which may not respond well to the traditional recruiting model. Gen Y'ers collaborative relationship with others including their parents may make others a natural part of their decision making process. But where does it stop? Certainly parents cannot become an ongoing collaborator in workplace performance and personnel issues. Undoubtedly taking a cue from the academic world ,which is ahead of the curve on this one, would be appropriate. Academia's approach has been to develop a hard line in keeping parents out of the classroom.

• Recognize the Demographics: Following the acclimation of Gen-X'ers into the workforce, demographics have become a worthy consideration for HR professionals in sculpting corporate culture. The challenge becomes integrating the next generation of Helicopter Parents and Boomerang Kids. As noted by Carolyn Tang in her article "The Great Divide":

Traditional suit-and-tie Baby Boomers are interacting with denim-clad colleagues from both Generations X and Y. Disparities in career expectations and attitudes between the old guard and the new are causing subtle, yet significant shifts in corporate culture and the working environment. And perhaps some tension as well.

So what's the recommendation on HR's approach to helicopter parenting?

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There are psychological tests and assessment tools that are predictive of violent behavior, but there are significant legal restrictions on their use. Assessments that are not "medical tests" may be used on a pre-employment basis, but should not be used as the principal reason for a hiring or promotion decision.

There is no profile of a potential workplace violence perpetrator; however, there are traits when coupled with at risk situations that increase the likelihood of violent behavior. Sheryl and Mark Grimm of the Workplace Violence Headquarters have developed a Formula for Workplace Violence that includes a list of traits as follows:

• Previous history of violence, toward the vulnerable, e.g., women, children, animals
• Loner, withdrawn; feels nobody listens to him; views change with fear
• Emotional problems, e.g., substance abuse, depression, low self-esteem
• Career Frustration, either significant tenure on the same job of migratory job history
• Antagonistic relationships with others
• Some type of obsession, e.g., weapons, other acts of violence, romantic/sexual, zealot (political, religious, racial), the job itself, neatness and order .

There is a major legal distinction made between an employer's treatment of an applicant with a potentially violent personality and the treatment of employee conduct that exhibits violent behavior. The EEOC has stated that its position on the distinction between perception and conduction in its  Enforcement Guidance for Individuals with Psychiatric Disabilities :

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As a follow up to the previous posting, Dr. Ira Wolfe offers his thoughts on Psychopathy in the Workplace based in part on his experience with personality assessments conducted through his business Success Performance Solutions. Thank you Ira for your contribution.

 

When Psychopaths Go to Work

 

We may never know the final diagnosis that drove Cho Seung-Hui to his mass murder spree at Virginia Tech but one thing is for sure: our desire to know "What on earth is wrong with that guy?" will continue. 

Fortunately most of us will never have to face what the students and faculty did on April 16, 2007. What many of us have and will experience are our interactions with an equally destructive and dangerous group that lurks behind many resumes and executive desks. Specifically I'm writing about psychopaths who are walking and working among us every day.

Many of you will likely have the same reaction as I did when I picked up a copy of a new book, "Snakes in Suits: When Psychopaths Go to Work": you're thinking serial killers and stalkers or picturing Hannibal Lecter, Freddy Krueger, and Dr. No. Reality however paints a far different picture. Psychopathic behavior is not illegal. It is not in fact even classified as a mental illness. Psychopathy is a personality disorder and hiring managers today often confuse its symptoms with success attributes.

Psychopaths live and work freely among us. In fact in today's dog-eat-dog world where greed is good and the survivor of the fittest earns the most riches, psychopathic behavior is innocently recognized as talent. For example, how many rising stars have you known who are driven, ambitious, resilient, charming, articulate, intelligent, and charismatic? Their mere presence disarms the most skeptical while their supporters fawn and idolize them. Now remove a moral conscience and the incapability of empathy, guilt or loyalty to anyone but themselves and viola - you have a psychopath. What interviewers see is not always what they get.

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The Pennsylvania Employment Law Blog has added a new section which highlights and/or discusses legal situations which commonly confront human resource professionals. Click on the link titled "Did You Know? PA Employment Law Highlights" on the upper right side of the page. The short informational postings address Pennsylvania law's impact on specific HR activities to promote compliance, proactive risk management, and issue identification.   The postings will be made on a regular basis and archived in this special section of the blog for our reader's reference and review. 

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Design of an effective wellness program requires collaboration between insurance brokers, benefit providers and legal advisors in light of limitations placed on certain aspects of their design by HIPAA's Nondiscrimination Requirements.    Under the final regulations that take effect for plan years beginning after July 1, 2007, HIPAA impacts the design of wellness programs that take into account "health factors" when providing incentives under the program. Programs such as the following that do not take into account a participant's health factors when a reward is given or withheld for participation by an employee or beneficiary:

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As Steve Buterbaugh noted in the previous post, successful Wellness Programs need specific goals and top level support. These two factors play out in the design and implementation of the programs.

Wellness Programs have been successfully implemented by many central Pennsylvania companies.  One successful program was highlighted by David Wenner in a recent article about D&E Communications.  D&E's Wellness Program likely succeeded because it had a specific goal (90% employee participation in a health assessment) and it had a commitment from the top of the organization(CEO personal appeals).  These aspects are outlined in Mr. Wenner's article as follows:

D&E had been looking for a way to hold down health insurance premiums, which had risen 12 percent in 2005 and 20 percent in 2004, said Judy Naylor, vice president of human resources.

Highmark Blue Shield recommended its wellness program, Lifestyle Returns. The insurer offered D&E a 2 percent premium reduction this year if 90 percent of employees participated in the first two steps of Lifestyle Returns, Naylor said. Employees had to pledge to become more health conscious and complete an online health risk assessment.

D&E qualified for the premium reduction, which amounted to about $100,000. It divided the money among participating employees, giving each a $200 reward.

…

 Participation reached 65 percent after about six months, then stalled.  CEO James Morozzi begin visiting each work site and making personal appeals. In the end, 96 percent of employees completed the health risk assessment, which asks about their health-related habits.

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Design of an effective wellness program requires collaboration between insurance brokers, benefit providers and legal advisers. There are particular considerations relating to HIPAA's Nondiscrimination Requirements which I will discuss in my next post. Before we get to that, I am pleased to share the following contribution from Steven P. Buterbaugh, CPCU, AAI of E.K. McConkey & Co. Insurance. Thank you to Steven for being our first guest blogger. 

Wellness Programs Have Positive Impact on Group Health Insurance and Overall Company Productivity

Businesses are under constant and increasing pressure to find ways to manage and reduce health benefit expenses while maintaining or improving employee morale and productivity.

Benefit redesign and changing employee contributions are often the first options to consider, but these can strain the important relationship between employer and employees. Significant long term savings will only occur when member health is actually improved, and this is where a wellness initiative can make an impact.

There is a wide disparity between the average claims and cost/person for someone who has a chronic illness and the average claims and cost/person for someone with non-chronic illness.  (See Chart) 

As we often are reminded through the media, there has been an increasing prevalence of chronic illness in our society including Obesity, Diabetes, and Heart Disease. Following are some compelling statistics:

• Obesity- The CDC’s Health-E Stats for 1999-2002 show that 64% of adults in America age 20 and over are overweight or obese^.
• Diabetes- the National Diabetes Information Clearinghouse states that:
  • Each year, approximately 798,000 people are diagnosed with diabetes
  • Diabetes is a leading cause of death and disability and costs $92 billion per year in direct medical costs.
• Heart Disease- in 2002, there were 23 million adults diagnosed with heart disease according to the Centers for Disease Control Summary Statistics for U.S. adults. The CDC also reports heart disease as the number one cause of death in the United States.

While these “big three” chronic health conditions are to some extent preventable and/or treatable, current health protocols can only do so much to address these problems.

Long term, the most effective way to control claims costs and keep insurance premiums down is to prevent claims from being incurred through health improvement.

The positive effects of a wellness initiative are cumulative. The longer the company participates, the greater the impact you should see. Taking action now could help stave off the development of future chronic conditions that will inevitably affect your bottom line and productivity in the future.

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The U.S. House of Representatives voted 241 to 185 to pass H.R. 800 which is a bill that would change the process for unions to organize a workforce.  The bill would require the NLRB to certify a union when a majority of workers sign authorization cards that designate the union as their bargaining representative.  The card check process would eliminate the secret ballot election traditionally used to determine union representation. 

Under the current law, union organization of a workforce occurs after a showing of interest to the NLRB by the presentation of authorization cards together with a recognition petition identifying what the union believes to be an appropriate unit for organizing.  The employer may contest the appropriateness of the unit by demanding a hearing before an NLRB representative.  After the unit is certified as appropriate by the NLRB, a secret ballot election is held (generally within about 30-45 days after the petition was filed).  If the union receives a majority of the ballots cast by employees in the unit, it wins the right to represent the employees in an appropriate bargaining unit.

Eliminating the secret ballot has a tremendous impact on an employer's ability to combat organizing attempts.  The following is a partial list of problems created by the card check process:

 

 

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The change to Daylight Saving Time a few weeks early this year has caused some internet buzz including discussions of the myriad of computer related problems that might result.  Fortunately, I still have the  stock pile of bottled water and cases of canned food that I purchased for the impending doom prophesized by the Y2K pundits. I came across an InformationWeek article that I thought put the issue into perspective. 

 

The change will certainly require some attention from your IT Department and may impact some things you will need to deal with personally.  I have taken the precaution of noting times in the text of my appointments on my Outlook calendar, just to be sure that I am where I need to be at the correct time in March.  I have also reviewed the Microsoft Daylight Saving checklist to be sure that I don't have any surprises on my personal computer.    

 

Some employee communications might make the HR department look good.  You might consider sending a reminder to your employees via your company intranet or in a mass email.  It is likely that the early time change may take some by surprise. 

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'Tis the season for human resources professionals to fret over an employer's liability for alcohol-related mishaps stemming from too much holiday cheer at the office party. Before you say "bah humbug" to the whole idea, you might want to weigh your return on investment from a year end boost in employee morale versus the specter of alcohol induced accident or incident.

 

Mixing alcohol and employees can result in a wide spectrum of possible outcomes ranging from mildly embarrassing to catastrophic. Like all good lawyers, we'll focus on the catastrophic: the automobile accident and the discrimination lawsuit.

 

In Pennsylvania, there is little difference in liability between an employer/host and the social host of a private party in a home. Whether the party is thrown by an employer or an individual, there is generally no liability for an adult host when an adult employee, guest or someone else is injured by an adult drunk driver who may have been served at the party. Courts reason that "it is the consumption of alcohol rather than the furnishing thereof, that is the proximate cause of any subsequent damage". However, there is liability for any host (whether an employer or a private person) who knowingly serves alcohol to anyone under age 21.

 

Employer's may also face claims from employees injured by the consumption of alcohol under employee benefit programs like workers' compensation insurance, medical and accident policies. Employee benefit plan and insurance exclusion for injuries arising from operating a vehicle while intoxicated are generally upheld. 

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