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

These days, everyone is reacting to rising gas prices, including the Internal Revenue Service. Through Announcement 2008-63, the IRS is raising the optional standard mileage rate for operating a vehicle for business purposes from 50.5 cents to 58.5 cents per mile, effective July 1, 2008. 

The new rate applies to applies to qualifying expenses that are both incurred and reimbursed on or after July 1.

While there are generally no Pennsylvania laws requiring employers to use the IRS' rate, there may be some tax advantage for doing so. The IRS will deem employers who make qualifying reimbursements up to 58.5 cents per mile as meeting their accounting requirements, thus no income reporting or withholding is required for those reimbursements. However, employers need to make sure that their employees have provided adequate proof that the mileage was strictly for business use.

Qualifying employees who are not reimbursed for their business mileage will be able to deduct 58.5 cents per mile on their individual tax returns. However, it is important that the qualifying miles incurred between January 1, 2008 and June 30, 2008 are recorded separately from the miles accrued on and after July 1 because the old rate continues to apply to them

            More information on this topic is available in section 5 of IRS Publication 15, although the Publication does not currently take into account the new rate.

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The Pennsylvania Employment Law Blog has experienced some change recently. Those who read our blog regularly know most of our content has been generated by Michael Moore. Mike has left Russell, Krafft & Gruber, LLP to pursue a position with another law firm. We are grateful for the time and effort Mike has put into our blog and we would like to continue to uphold the standard he has set for our readers. We wish Mike well but as they say, "the show must go on."

Our readers can look forward to content by Christina L. Hausner and Roxanne C. Garner. We also look forward to utilizing the expertise of other lawyers in our firm to help expand the information contained in our blog. For example, Matthew A. Grosh made his first appearance last week with his post Payroll Taxes for a Single Member LLC.

We recognize that many of you have become regular readers and we greatly appreciate your interest. It's important to us to hear from you. Do you have a particular subject on which you would like us to post? Have we blogged on a subject you would like us to revisit? We will continue to blog about matters that are of interest to us but we also want to hear from you.

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Today’s headlines about Governor Eliot Spitzer’s link to a prostitution ring recount another scandal involving a high level government official. Spitzer attempted to “manage” the scandal by calling a press conference, his spouse at his side, apologizing for his behavior and describing the rest as a “private matter”.   After this "ritual of repentance", Spitzer is “weighing his resignation”. To this, I refer back to a statement attributed to  Representative Dick Armey who was asked if he had been in President Clinton’s place after the Monica Lewinsky scandal would he have resigned? He purportedly responded: “If  I were in the President’s place I would not have gotten a chance to resign. I would be laying in a pool of my own blood, hearing Mrs. Armey say : ‘How do I reload this damn thing?’”

While I don't advocate this approach, an organization's or individual's response to a scandal can make or break it.  Human Resources professionals may be called upon in times of turmoil to be the spokesperson for the organization. I have no training in public relations, but from a legal perspective here are some things I can say don’t play well for future litigation:

• The “categorical denial” that proves otherwise like “I never had sexual relations with that woman”.
• Legalistic answers like those that turn on the definition of “is”.
• Opinions offered without facts or investigation.
• Any comments made by a company official in handcuffs or an orange prison jump suit.

Occasionally, I will get contacted by a company facing adverse publicity.  Here are some general rules that I remind clients when they call in a crisis:

• Consider the quick engagement of a PR firm.
• You don’t have to say anything and that may be the best course.
• Identify one spokesperson and tell everyone else to refer questions there.
• Plan what you will say and provide a written press release
• If you don’t know the facts, don’t speculate
• If you don’t have something to say then don’t talk.
• You don’t have to answer questions and be very careful if you do.
• You can end a press conference of interview at any time, just try to do it gracefully.

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Rush Nigut of Rush on Business tagged me.  The rules of “tag” are simple:

• Link to the person that tagged you and post the rules on your blog.
• Share 7 random and or weird things about yourself.
• Tag 7 random people at the end of your post and include links to their blogs.

I wondered if this “tag” is a blogosphere version of a chain letter. I quickly did some research and discovered that it’s a meme. A meme (pronounced /mi:m/), as defined by memetic theory, constitutes a theoretical unit of cultural information, the building block of culture or cultural evolution which spreads through diffusion propagating from one mind to another analogously to the way in which a gene propagates from one organism to another as a unit of genetic information and of biological evolution. To avoid the bad luck that will befall me if I don’t send this “meme” on to seven other bloggers, I will dutifully comply.

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The White House announced that President Bush signed of the National Defense Authorization Act (H.R. 4986) which includes additional FMLA leave for military families.  Section 585 (full text set forth below) of the bill (similar to the one vetoed in December) adds two new FMLA-qualifying events, expanding FMLA to include employees caring for an injured service member as well as family members who have a family member called to active duty.

The DOL has summarized the provisions and indicated that the caregiver provisions of the law are effective immediately while the other provisions aren’t effective until DOL issued final regulations. The DOL is “working quickly” to prepare comprehensive guidance, and will require employers to act in good faith until guidance is issued. Employers should immediately adopt FMLA-type procedures for substitution of paid leave and notice as it applies to the new legislation.

Under the new law, FMLA-eligible employees will now be entitled to the following:

Caregiver Leave for an Injured Servicemember:  This benefit permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

Family Leave Due to a Call to Active Duty:   This benefit provides 12 weeks of FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.”

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A recent federal court of appeals decision in Simple v. Walgreens Company is a case study on two important points. First, how the pressures of marketing in a competitive retail environment can overtake the limits of discrimination laws. Second, how a supervisor’s communication with an employee can create an issue of discrimination.

Like many retailers, Walgreens tracks demographic data and relates it to each retail store. At issue in the case was whether the racial demographic data was used in promotion decisions to assign personnel to “black” or “white” stores depending on the race of the employee. The court noted as follows:

There is no evidence that [the successful white candidate] was more qualified to manage the store in Pontiac[, Michigan] than the plaintiff, who had twice her experience as an assistant manager, the mandatory stepping stone to store manager. But she is white, and the store is in a predominantly white neighborhood, while the plaintiff is black and so was twice offered a "black" store--and when the store manager's job at the "white" store fell vacant he was ignored.

The evidence of the company’s racial motivation was found in a supervisor’s comments to the plaintiff in an effort to make him feel better:

"I may have stated that Pontiac was possibly not ready to have a black manager. It is well known in this area that some of the smaller, outlying towns have some very racist tendencies, and I was simply trying to make [the plaintiff] feel better because my feeling was he may not have been very happy working there."

From this statement, the court concluded as follows:

The significance of [the supervisor's] remark about racism in Pontiac lies in the fact that as an experienced Walgreens store manager (it appears that she had been one for at least four years) she was undoubtedly aware of what [the district manager] was looking for in a store manager in Pontiac, and one interpretation of the remark is that the plaintiff's race would bar him from consideration…. The plaintiff would not feel "happy" among Pontiac's white racists, which is a standard euphemism for refusing a job to someone of a different race from the people he would be associating with. Racial segregation is obviously a form of racial discrimination.

The presumption underlying “customer preferences” is that people prefer to interact with those of the same race, gender, religion, or other characteristic. Employment decisions are justified by appealing to a target demographic group. Courts have universally rejected customer preference as a basis for employment decisions except in the narrow case where it is a Bona Fide Occupational Qualification (BFOQ).

The attorneys at Godfrey & Kahn have a great post analyzing the role of customer preference in health care marketing called Can We Use Gender in Our Hiring Decisions? The Discrimination Bona Fide Occupational Qualification (BFOQ) Applied to Health Care.  Fay Hansen’s post Recruiting on the Right Side of the Law describes the pressures of retail establishments to market an image through their sales associates and the resulting discrimination issues.

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The Associated Press reports that Bush Administration blogging Mideast trip and notes that “Everybody's doing it, so why not the White House? President Bush's team is joining the blogosphere, planning regular postings during his Mideast trip.”   The blog can be found at http://www.whitehouse.gov/infocus/mideast/notes/index.html. Let the comments begin!

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Most of the Human Resources world looks to federal law when it considering the classification of a worker as an employee or an independent contractor. The IRS and most federal employment statutes use a common law rules which analyze the degree of control and the degree of dependence in the relationship between the business and the worker. The IRS recommends using Form SS-8 for this determination; however, the usefulness of this process is marginal.

To make matters more difficult, state laws also impact worker classification using sometimes differing legal standards. The post –gazette NOW Business reports that FedEx Grounds was fined $190,000 by the Massachusetts Attorney General for misclassifying 13 drivers as independent contractors. The Massachusetts test for an independent contractor differs focusing on three factors: the degree of control; work outside the usual course of business of the company; and the person engaging in a business that is customarily conducted as an independent trade or profession.

Pennsylvania has similar test for independent contractors which requires that the individual be free from control or direction over the performance of the services involved and be customarily engaged in an independent trade, occupation, profession or business. The impact of misclassification frequently appears in unemployment and workers’ compensation cases, but also had important tax and other compliance issues.

The state law employment classification issue may well be fertile ground for multistate litigation and class actions. Employers face real difficulties in complying with 50 states laws on employment classification along with a nebulous federal standard. Likewise, I don’t see how a worker could be classified as an employee for state law purposes and an independent contractor under federal law.

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Many employers traditionally provide year end bonuses and holiday gifts for their employees. Bonuses may be included in a nonexempt employee’s regular rate depending upon the manner in which the bonus is calculated and the company’s prior communication. Inclusion in the regular rate impacts overtime calculations and payments.

Bonuses paid to nonexempt employees are included in the determination of the employees’ regular rate under section 778.208 unless the bonus falls into one of several exceptions. The bonuses are allocated to the pay period and added to other wages paid to nonexempt employees and then divided by the hours worked for the same period to determine the new regular rate under the methodology described in section 778.209. For bonuses earned over more than one work week, the bonus must be allocated to pay periods to which the bonus applies and the regular rate recalculated. If overtime was worked during this period, the overtime rate must be revised to be time and a half the recalculated regular rate that includes the bonus payment. This is a nightmare.

Department of Labor regulations provide for several exclusions. Among these excludable bonus payments are discretionary bonuses, gifts and payments in the nature of gifts on special occasions, contributions by the employer to certain welfare plans and payments made by the employer pursuant to certain profit-sharing, thrift and savings plans. These exemptions are discussed in Section 778.211 Discretionary Bonuses, Section 778.212 Gifts and Holiday Bonuses, Section 778.213 Qualified Profit Sharing and Savings Plans, and Section  778.214 Other Qualified Plans.  Bonuses which do not qualify for exclusion from the regular rate as one of these types must be totaled in with other earnings to determine the regular rate on which overtime pay must be based.

Typically any bonus announced in advance and tied to work performance, hours or other productivity will not qualify for an exemption.  There three ways to manage the recalculation problem, other than utilizing qualified plans:

1. Holiday Bonuses: The Holiday Gift and Bonus exemption under section 778.212 allows for the exclusion from calculation of an employees “regular rate” of pay “sums paid as gifts; payments in the nature of gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not measured by or dependent upon hours worked, production, or efficiency…”   The following sets forth some of the parameters of the exclusion:

If the bonus paid at Christmas or on other special occasion is a gift or in the nature of a gift, it may be excluded from the regular rate under section 7(e)(1) even though it is paid with regularity so that the employees are led to expect it and even though the amounts paid to different employees or groups of employees vary with the amount of the salary or regular hourly rate of such employees or according to their length of service with the firm so long as the amounts are not measured  by or directly dependent upon hours worked, production, or efficiency. A Christmas bonus paid (not pursuant to contract) in the amount of two weeks' salary to all employees and an equal additional amount for each 5 years of service with the firm, for example, would be excludable from the regular rate under this category.

2. Discretionary Bonuses: This is an area of DOL audit scrutiny and should not be used on a regular or aggressive basis. Truly discretionary bonuses are not included in the regular rate of pay under section 778.211, if both the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement, or promise causing the employee to expect such payments regularly. The following sets forth some of the parameters of the exclusion:

For example, any bonus which is promised to employees upon hiring or which is the result of collective bargaining would not be excluded from the regular rate under this provision of the Act. Bonuses which are announced to employees to induce them to work more steadily or more rapidly or more efficiently or to remain with the firm are regarded as part of the regular rate of pay. Attendance bonuses, individual or group production bonuses, bonuses for quality and accuracy of work, bonuses contingent upon the employee's continuing in employment until the time the payment is to be made and the like are in this category. They must be included in the regular rate of pay.

3. Percentage Total Earnings Bonus: Bonuses based on a percentage of the nonexempt employee’s total earnings under section 778.210 do not result in a recalculation of the regular rate because overtime is already been accounted for in the calculation.   Under this method, the bonus is described as a percentage of the nonexempt employee’s total (W-2) earnings, thereby including both regular and overtime payments and obviating the need for recalculation of the regular rate.

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There is only one war story I ever tell because I don’t talk about my client’s problems with anyone no matter how humorous they might be.   The Connecticut Employment Law Blog and  Ohio Employer’s Law Blog have postings on an employer’s liability for the “mere presence” of pornography in the workplace. All I can say is sometimes the most obvious things are overlooked.

About ten years ago, I  was asked by corporate counsel to conduct sexual harassment training at a series of distribution centers. At one remote location space was tight so the plant manager had set up rows of chairs in the receiving department. What had escaped his notice was on the wall of the receiving department behind the podium from which I was to make my presentation was a collage of every Playboy Centerfold for the preceding 20 years. The pin up shrine went from floor to ceiling and encompassed an area about 40’ X 40’.  I thought I was on candid camera.

My first reaction (well maybe my second) was to cancel the training, but it was obvious that this company was in dire need of it.  In any event, I also realized that I had hit the mother lode of future business in defending  this company from discrimination claims.  I decided to orient the chairs in the other direction and go on with the training. Admittedly, I downplayed some training materials on the problems with sexually explicit materials in the workplace.

The training went surprisingly well, with no mention of the “wall”.  Perhaps it had been there so long, no one even notice it anymore, but you can bet it would have been the centerpiece of any sexual harassment claim.  After the training was over, I read the plant manager the riot act.

The next time I was in that plant, no mention was made of the shrine but it was gone.  In its place was one of those signs detailing the number of days since the last lost time accident.   I wasn't sure I had gotten my point across to this company until I drove out of the parking lot.  It was then that I saw the three guys from the  receiving department  standing in an open garage bay giving me the finger. I thought again about the mother lode of future business.

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The average corporate health benefit expenditure in 2008 will be $9,312 per employee—an increase of 7 percent over 2007—with annual per-employee contributions exceeding $2,000, according to Towers Perrin's 2008 Health Care Cost Survey. Some highlights of the survey are as follows:

• Employers are expecting to subsidize 78 percent of next year's premium costs, and employees will have to cover the remaining 22 percent, plus usage-based co-pays, deductibles and co-insurance.
• Employee contributions, on average, will jump by $156 per employee per year to $2,040, an 8 percent increase that is roughly twice that of annual employee merit increases.
• Analyzing the data by coverage level, the average reported 2008 cost of annual medical coverage will be:
  • Employee-only coverage:              $4,704
  • Employee-plus-one coverage:       $9,660
  • Family coverage:                         $13,704

The Towers Perrin Survey also tracks the cost variations across “High-Performing” and “Low-Performing” Companies noting a cost disparity per employee per year of $8,844 and $10,320 which is explained as follows:

According to the Towers Perrin data, these [high-performing] companies have clear strategies in place to drive improvements in employees’ overall health and wellness, engagement in health care decisions and health-related behaviors, as well as to identify problems early and take advantage of opportunities for improvement by understanding the current state of their benefit program and the health care system overall.

To the extent that high performance is enhanced by plan design, I am seeing a strong trend to High Deductible Health Plans coupled with either Health Savings Accounts, Medical Savings Accounts or Health Reimbursement Arrangements. The pros and cons of some of these arrangements have been discussed previously in Problems with Health Savings Accounts (HSA). 

There is also a clear trend among employers to adopt wellness programs with financial incentives for behavior changes.  Some of the issue surrounding wellness programs have been discussed in Wellness Programs Must Comply with HIPAA Restriction;Successful Wellness Programs Implemented by D&E Communications;  Sizing Up Obesity: Can Wellness Programs Curb BMI?

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The Pennsylvania Employment Law Blog participates in and will host the HR Carnival on May 28, 2008. The HR Carnival is the brain child of Evil HR Lady who was the subject of a recent and exclusive interview by this blog.   This weeks carnival is hosted by  The Work Clinic a blog in the UK and features a compilation of interesting HR related posts from different perspectives..

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Tony Karrer of eLearning Technology has an older post on Top Ten Reasons to Blog and Top Ten Not to Blog. This post has a great summary of blogger motivations collected from those who do it. 

We all have our reasons. For example,  there are a lot of business reasons for doing it, but that's not what sustains my efforts. From my perspective, blogging is social networking in an intellectual forum (and without the drunken photos of MySpace and FaceBook). 

There is an amorphous network of human resource bloggers out there whom I will probably never meet face to face (thanks to the restraining order they filed). I find their posts thought provoking, but also fun.  The network also has a regular carnival which moves around to different blogs, its competitive with HR Power Rankings, its creative with cool aliases like Execupundit  and  Evil HR Lady, but mostly it shares ideas about human resources subjects from different perspectives.

I thank those who have read, commented and referred to this blog.

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There are a lot of good HR-related Blogs out there many of which I read on a daily basis. The HR Capitalist has undertaken an ambitious project to rank these resources. For readers seeking a compilation of HR Blogs, this is an excellent site for one stop shopping. Incidentally, Kris Dunn's HR Capitalist Blog is one of the best.

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Personality tests have always held a certain amount of fascination for me. I vacillate between thinking they have the same credibility as horoscopes and really believing they have some keen insights. I have blogged on personality assessments previously so I won't repeat the legal issue.

Kris Dunn, at the hr capitalist has a great post on Hiring Jason Bourne via the Myers-Briggs Assessment. Kris concludes that Jason Bourne is an ISTP. I was wondering if this classification appropriately places him in his current occupation (CIA hit man). Furthermore, how would he fit in your organization?

Career and Personality Tests On-Line lists the following traits for many ISTPs in an organization:

[A] good job includes being rewarded for paying attention to what is logical, allows for hands-on experiences, and gives them freedom to do the work as they see fit. They often enjoy work that is project oriented and task focused, particularly if it involves immediate problem solving. Independence and autonomy are likewise important for ISTPs at work. Action is usually more important and interesting to them than long discussions. ISTPs often lead by example, and expect each person to contribute to the group effort. They can be quite expedient, finding the best solution for the moment. They usually dislike both giving and receiving close supervision. Many ISTPs can keep track of all kinds of detailed information and can become the source of "institutional knowledge" for an organization.

Some areas where ISTPs can have difficulties include taking shortcuts to get things done and skipping important steps. They might miss sharing information with others, who then assume the ISTP is uninvolved, unconcerned, and lacks interest. Sometimes, in their hurry to get things done, they can jump to a new task before the previous one is finished. Perseverance can be a problem. Likewise, goal setting can be difficult. The focus on the immediate can make it hard to look at the long term and plan accordingly, or even create a plan in the first place.

Based on this summary, I'm thinking Jason Bourne, Vice-President of Human Resource.   The Personality Page has a Geocities page that list the following occupations for an ISTP:

Police, detectives, forensic pathologists, computer programmers, system analysts, computer specialists, engineers, carpenters, mechanics, pilots, drivers, athletes, entrepreneurs, firefighters, paramedics, construction workers, dental hygienists, electrical engineers, farmers, military, probation officers, steelworkers, transportation operatives, hitmen. With the ability to stay calm under pressure, they excel in any job which requires immediate action.

Right now, I am in the camp of thinking these personality test are right on the mark.  But wait, how can hit men and dental hygienists both be ISTPs?  Now, I am vacillating again.  Jason Bourne, Dental Hygienist?  That's why I'm not the Hollywood director.

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Anyone who has ever driven by a business when its unionized employees are on strike has undoubtedly observed the "picket line". The image or workers carrying placards with anti-company slogans walking back and forth in front of a gate at their workplace is associated with every labor dispute. But what is the purpose of the picket line?  Is it antiquated or effective?

One of the simplest summaries of "picket line" appears on Howstuffworks which states that "[t]he purpose of picketing is to draw public attention (and sympathy) to their cause, inform the public of the goals and the reasons behind the strike and discourage anyone from violating the strike order and going to work. Anyone who does this literally has to cross the picket lines, and they usually are called scabs."   As you might expect, the National Labor Relations Board (NLRB) has a slightly more complex approach to picketing which can occur in many reasons other than a strike.

Picketing has strong symbolism. Political candidates line up, literally, to garner union support by marching in picket lines. The picket line establishes a boundary between the business and the outside world. It attracts attention (better than a giant inflatable rat). It disseminates information (sometimes).

There is little or no empirical evidence that I could find on the effectiveness of picketing as an economic weapon. Anecdotally, picketing is intimidating to customers and employee's who may be inclined to cross the picket line. It generates media attention which may cast the company in an unfavorable light. The picket line is disruptive to business when sympathy strikers won’t cross the picket line to enter the business. It is a boon to lawyers, security companies and videographers who monitor the picket line shenanigans.

Unions obviously think picketing is important for reasons other than giving there members something to do to earn their strike benefits. As observed by the hr capitalist, unions may even be willing to pay others to walk the picket line. A typical day on the picket line is featured in an article entitled Garment strikers sticking together by Spencer Soper. In many ways, a picket line seems like a team building exercise gone bad.

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It won't surprise you that I read other Blogs. There is a posting on Evil HR Lady about a new website called eBoss Watch where you can anonymously rate your boss and search other employee's ratings. I think the sight is largely an effort to capitalize on wave of "bullying" articles that have appeared lately.

The Evil HR Lady doesn’t like the site and I agree. These anonymous ratings are purely cathartic and usually don't have enough structure to give meaningful feedback. I tried to take the eBoss survey, but it was blocked by the office firewall. Major marketing oversight.

There are a whole host of management assessment tools that include employee feedback. Whether its called 360 degree feedback or some other name, it sometimes finds its way to a lawyer's desk as evidence in a termination case.

The peer feedback and evaluation contained in a 360 feedback can be powerful evidence in employment discrimination cases arising from a performance termination or reduction in force. Although the opinions expressed are entirely subjective, the structure of a 360 evaluation makes it seem objective. In the cases that I have presented 360 evaluation evidence to a judge or jury, it has been a powerful persuader because 360 feedback:

• Demonstrates that the employer had a process that was designed to help the employee improve performance.
• Includes both a numeric rating and anecdotal comments.
• Usually isn't all negative.
• Bases its assessment on a broader group of people.
• Communicates clearly and in writing.

On the other hand, I can't imagine relying on anonymous website gossip to convince someone that my boss's performance was good or bad.

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Yes, I am one of the 60 percent of Americans who bring their laptop on vacation.  But this time, two good things happened.  First, I eventually got my computer to work.  Second, I was able to read a very nice article about our blog written by Judy Strausbaugh entitled "The paperless chase" that appeared in the Lancaster Sunday News on June 24, 2007.  I was also able to update the blog.  I must confess that it has become rather addictive.

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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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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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A few weeks ago when we made the decision to launch the Pennsylvania Employment Law Blog, we knew this was not the usual manner in which lawyers communicate with their clients, friends and associates.  However, we were pleased to have the opportunity to get in on the ground floor of a growing trend in the legal community.  We did not anticipate the most frequently asked question as we started telling everyone about our exciting new project - "What's a Blog?" 

 

For those of you who are already a card carrying member of the Blogosphere, please skip to the last paragraph of this posting, for all others we will share what we learned during development of this blog.  Wikipedia defines a blog as "a user generated website where entries are made in journal style and displayed in a reverse chronological order."  Blog readership has grown 60 fold in the last three years capturing more than 30% of all internet users. A blog is a web page with frequent, short postings on a particular subject matter. You may be familiar with this concept as it relates to personal blogs that are used to keep family and friends updated, but we learned that most people were unfamiliar with how it could be used professionally.  It provides us an additional opportunity to serve our clients and the business community.    We chose this medium because it will allow us to communicate with you in real time.  Many of you don't have time to browse paper or even electronic newsletters to determine if there is an article that is of interest to you, and it sometimes takes too long for us to publish the information.  Enter the Business Blog. 

 

Employment Law can be a complex subject.  The Pennsylvania Employment Law Blog will provide you practical information to help you negotiate the maze of employment law and apply it to your situation.  Some postings will relate to current events, a new court decision, changes in law or discussions regarding a local or national news story.  Other postings will be on issues that clients have asked about or that we feel will be of interest.  We will also provide links to other internet resources.  All postings are searchable by topic or text, allowing you to view our blog at your convenience and perform a search on the subject that is of interest to you at that time.  Postings will be relatively brief so we hope that you will bookmark the site and check back on a regular basis.  You may also use the link to subscribe via email so that you will be informed when there is a new posting.  For our technologically savvy readers, subscribe using RSS/XML.  Also, please post questions and comments.  Our goal is to make this site an interactive way to stay in touch with all of our clients and associates.  Please join us as we venture into the Blogosphere.

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