Bent Ericksen & Associates

For over 30 years we have helped thousands of small business offices achieve confidence in their employment compliance and human resources.

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Appreciation in the Workplace – It Really Does Make A Difference

You may have heard about appreciation in the workplace, its contribution to employee engagement and the role it can play in a business’s success. It’s that smart-sounding thing that, like cleaning the attic, you know would be good to do but haven’t gotten around to doing.

A lot of employers and employees think that they already do a great job of showing and communicating appreciation. Yet, here are some current and striking statistics*:

Only 29% of employees are engaged with their work

54% of employees are not engaged with their work

17% of employees are actively disengaged, meaning they’re regularly sabotaging productive work

79% of employees who quit their jobs cite lack of appreciation as one of the main reasons for their choice to leave

Bottom line: you may not be doing as good a job as you think.

Maybe you’re wondering: why is my staff turnover higher than it should be? What about attitudes I experience from co-workers or employees (irritability, cynicism, sarcasm, or apathy)? Maybe someone has even said: “I never know if I’m doing a good job or if you’re about to fire me.”

When it comes to management styles, people have a tendency to mimic the style they learned from previous jobs or employers. After all, we tend to do what is familiar to us. And if that style didn’t proactively embrace appreciation in the workplace, then odds are you wouldn’t naturally do it either. The good news is: you’re not stuck with that model--you can learn a different style. There are libraries full of books on management styles, and there is data on the most effective management styles.

For this article, we will focus on one component: motivating by appreciation, i.e. more carrot and less stick. Ways of expressing appreciation can vary widely. We’ve all heard about Google’s free food and flexible work time benefits. Appreciation is at once both simpler and more complex than gimmicks like ping pong games on Fridays.

Here are 10 easy ways to express appreciation to almost anyone:

Give a verbal compliment

Write an email

Stop by and see how someone is doing

Do something together

Do a small task for someone

See if you can help

Buy coffee/tea/snack

Give a magazine related to an area of interest

High five when task is completed

Greet each other warmly

While some claim that appreciation (or the need for it) is a generational trend—that “baby-boomers” work all day with no whining while those “millennials” can’t answer the phone without needing a compliment from their manager—the reality is everyone wants to be appreciated.

Study after study has shown that every employee wants to know what is expected of them, how they’re doing, what they could/should do better, and that they are making a difference. The fact is that everyone needs appreciation in order to do their best work. The more the appreciation aligns with the individual the greater the impact.

It is also a myth that appreciation takes too much time. Developing a habit of and spending a few dedicated minutes on appreciation with employees and co-workers on an ongoing basis takes very little time. Investing in workplace appreciation in this way can yield significant results.

Thankfully, some smart people have studied this concept and found that people’s appreciation needs are not entirely the same. Those smart people are Dr. Gary Chapman and Dr. Paul White. They have studied and authored The 5 Languages of Appreciation in the Workplace.

Dr. Chapman is also the author of The 5 Love Languages, which, along with The 5 Languages of Appreciation in the Workplace, is a New York Times bestseller. Both books are quick, excellent reads and are highly recommended for both personal and professional growth.

One concept behind the 5 Languages of Appreciation in the Workplace is that we all have a primary and secondary language in which we like to receive appreciation. Those languages are: Quality Time, Words of Affirmation, Gifts, Acts of Service, and Touch. Obviously touch in the workplace can raise red flags, but an occasional high five or fist bump may, at times, be acceptable for certain people.

The Languages

1) Quality Time. Like it sounds, this is quality time and focused attention given to your employees, usually one-on-one. The important thing is quality, not quantity. Don’t fit this in when you have distractions. Block out 5-10 minutes, put your cell phone away, tell the other staff members not to disturb you, and get ready to listen. A focus on work is important; avoid just talking about trivial personal events. You may need to ask some probing questions like:

How are things going?

How’s your workload?

What do you think of the schedule?

What’s working and not working?

Getting quality answers may take time. If this is a new experience for the staff, don’t expect them to open up the first time. Trust will build with persistence and genuine connection.

Other examples of Quality Time:

Focused attention when an employee has a question

Genuine companionship

Shared experiences

Affirming feelings even if you disagree

Personal connection through listening and sharing

2) Words of Affirmation. Saying “good job” is a good start, but take it further. Avoid blanket statements to all employees like “great work everyone, keep it up.” Find something in particular the person did, even if it’s as simple as the way s/he answered the phone, and compliment that person for that action. While the old adage is “critique in private, praise in public,” keep in mind that some staff will prefer individual praise over group praise.

Other examples of Words of Affirmation:

Written appreciation; email is fine, handwritten is better

Compliment an employee for an attitude or behavior that you enjoy, such as being optimistic, organized, or self-directed

Mention at a staff meeting the solid work someone did on a difficult project

3. Gifts. Keep it unique. Buying everyone the same present won’t get you the “Boss of the Year” award, nor will be giving basketball tickets to the person who hates sports. Gifts should be personal and unique to the individual. This requires listening and learning. There are certain gifts, like food for example, that everyone enjoys. Take your staff out for lunch, or schedule a company dinner where significant others are invited. Gifts do not have to be expensive; a small, personal gift will go much further than an expensive impersonal one.

Other gift examples (if the person enjoys these things):

Tickets to a music show or sporting event

A gift certificate to their favorite store or restaurant

Spa treatments

A small vacation or retreat to a place they want to visit

Giving someone the afternoon off (paid) to enjoy time for themselves

Tickets to a comedy club

4. Acts of Service. Everyone can use a helping hand. Take note of your team and their workloads. If someone is on vacation, where is the extra pressure? Can you assist someone with a particular project? What if you stayed late to help the final push of a big task? Could you supply food or complete menial tasks to allow the team to focus on their project?

Keep in mind:

Ask first, don’t assume the person needs help

Be cheerful

Do it their way, follow their lead

Finish the task, don’t leave them hanging halfway through

Most people are not aware that these subtle language preferences exist, for themselves or others. This can create confusion, tension, and resentment. A manager may give a material gift to an employee only to find the employee marginally excited because his/her primary language is not Gifts. The manager thinks, “I would have been thrilled to receive this and s/he doesn’t seem to care at all, what is wrong with her/him?”

How do you learn and understand yours and others individual languages? Drs. Chapman and White developed a simple quiz that identifies a person’s primary and secondary languages. The assessment, coupled with an appreciation workshop, can lead to greater understandings and enhancements in the types and kinds of interactions that take place.

While it can be challenging to address everyone, you can mix it up to increase your odds of hitting on something that works. For example, you may consider a once or twice-a-year event that combines multiple languages. For example:

Take the staff on a weekend retreat where you discuss challenges and solutions for the office

Close the office early and have a catered lunch

Do a company trip to a city with entertainment that everyone enjoys, mixing group and individual time

Have the next local company event somewhere fun like a bowling alley

Conclusion

Many business owners like to say “our business doesn’t exist without our #1 priority: our customers.” Where would your business be without your employees? Where would your employees be without you? You have your goals, they have theirs. It’s a symbiotic relationship. Yet, those employers and employees do not have a habit of showing appreciation.

To get started with appreciation in your workplace, use the top 10 list provided. Also, use the examples listed with each language. Try them out. See what works. The benefits of an engaged, appreciated workforce are numerous:

Increased productivity and attendance

Better employee interactions

Improved relationships

Increased job satisfaction

Lower turnover and human resources costs

Stronger loyalty

Higher employee morale

Enjoying coming to work!

It has been said that it is better to give than to receive. The science now backs that up. By giving to your employees and your co-workers, you become happier and more fulfilled. You start a positive feedback loop that yields tangible financial results and reduced stress. Give it a try today!

*Source: 5 Languages of Appreciation in the Workplace

Written by: Alan Twigg and Fran Pangakis

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Avoiding Claims of Retaliation

Claims of retaliation against employers have become one of the fastest growing areas of employment litigation. You need only look at the statistics published by the Equal Employment Opportunity Commission (EEOC) to get a grasp of this bleak trend.

In fiscal year (FY) 2011, it was big news when the EEOC reported that for the first time the number of retaliation charges filed with the EEOC exceeded the number of charges filed for discrimination based on disability, religion, race, sex, or age. For the most currently released statistics (FY 2013), we again saw retaliation as the most frequently filed claim for the third year in a row at a staggering 38,539 charges filed. The fact that retaliation charges are higher than the other discrimination charges is becoming the norm.

The monetary benefits the EEOC recovered in FY 2013 for retaliation claims topped $169.4 million. OUCH! Back in 1997, when tracking retaliation charges started, the monetary benefits recovered was a mere $41.7 million. For all statutes, the EEOC recovered $372.1 million, a new record for the agency (up $6.7 million from the year prior).

This begs the question, what is retaliation in the workplace, and how can you protect yourself?

Simply put, employees have a basic right to raise concerns, express opposition to, or complain about practices by the employer that they perceive to be unlawful. Employees can bring forward these concerns either internally or to an outside government-type body.

Regardless of how it’s reported, punishing, reprimanding, or otherwise taking “adverse action” against the employee in response to the complaint can constitute retaliation by you. Examples of retaliatory or adverse actions are:

Terminating an employee who complains about not being paid overtime,

Threating, providing negative evaluations or references, or denying a promotion  to an employee who raises concerns about your OSHA or HIPAA compliance

Individuals who are covered are ones “who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability.” Furthermore, “individuals who have a close association with someone who has engaged in such protected activity are also covered.”

When an employee expresses opposition to an employer’s practice that s/he believes is prohibited discrimination, this is called a “protected activity.” Protections exist even if the claim made by the employee is later determined to be unfounded. The employee need only make the claim “based on reasonable, good-faith belief that the complained of practice violates anti-discrimination law and the manner of opposition is reasonable” for the retaliation protections to be triggered.

According to the EEOC, here are some examples of protected opposition:

Complaining to anyone about alleged discrimination against oneself or others;

Threatening to file a charge of discrimination;

Picketing in opposition to discrimination; or

Refusing to obey an order reasonably believed to be discriminatory.

Employees are also protected if they take part in an employment discrimination proceeding. Examples of participation include:

Filing a charge of employment discrimination;

Cooperating with an internal investigation of alleged discriminatory practices; or

Serving as a witness in an EEO investigation or litigation.

Just because the employee is engaged in a protected activity, doesn’t mean s/he is entirely untouchable. However, extreme caution and care must be taken when issuing disciplinary action or terminating the protected employee in order to avoid potential claims of retaliation. Timing, consistency and documentation are three key components:

Timing: ensuring that disciplinary actions, counseling meetings and/or terminations do not appear suspicious (i.e. immediately following protected activity).

Consistency: ensuring that disciplinary measures and/or termination decisions are the same for all employees in similar situations (i.e. don’t fire a protected employee for an infraction that another employee only received warning on).

Documentation: ensuring that it is objective, factual, and job-related; shows a pattern of behavior and a failure to improve; demonstrates history of poor performance before the protected activity; is cumulative.

With today’s trends, retaliation is not an issue to be taken lightly. Know and understand what it is and be cognizant of your risks. No one wants to become part of the overwhelming statistics and you don’t have to as long as you’re managing your employees appropriately.

Written by: Rebecca Boartfield and Tim Twigg

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Bullying: A Threat to Your Practice

We saw them, and sometimes encountered them, on the playground when we were kids. And they exist today in the workplace as adults--that’s right, bullies. They are often surrounded by sycophants, projecting an air of intimidation.

Human resources experts have been warning about this toxicity in the workplace for years. Whether from a dysfunctional or an unreasonably demanding supervisor; an employee who appears to enjoy placing co-workers in uncomfortable or compromising situations; or a vendor who, when visiting the office, promises rewards for purchases with the veiled threat that you will "rue the day if you ever choose a competitor." Sadly, this has become more common as a workplace challenge.

Try as we might to avoid and/or ignore them, there will be times, as an employee or an employer, when bullies and bullying behavior is encountered and must be addressed. For the practice owner, the impact can be a loss of team function or productivity and also carries liability. “Hostile work environments” are the concern that employer’s must be aware of today.

Not too many years ago, a federal court in New Jersey dismissed a female auditor's complaint of harassment by her supervisor. The court found that the supervisor's "loud, profane and obnoxious" behavior, including vulgar sexual and racist jokes, swearing and abrasive contact was "inappropriate and unprofessional.” They also found that his behavior was allegedly intended to make him "appear powerful" in relation to female subordinates. In the end, the court concluded that the supervisor's offensive conduct and profanity "was obnoxious to all employees, male and female" and not specifically directed to the complainant because she was a female. Thus, a summary judgment was granted in favor of the employer that appeared based on the patently absurd defense that "our loud, profane and offensive supervisor conducts himself with equal opportunity, therefore we win."

As Bob Dylan stated almost fifty years ago, "the times they are a-changin'." And in this arena they are changing fast.

Since then, in March, 2007, the Bureau of National Affairs, Inc. reported that "approximately 44 percent of American employees have worked for an abusive boss." Furthermore, the Employment Law Alliance has found that, when asked about specific kinds of workplace abuse, more than half of workers have experienced or heard about supervisors making sarcastic jokes, rudely interrupting, publicly criticizing, giving dirty looks, personally insulting, yelling at, or ignoring subordinates. An Alliance representative concluded: "only an employer in a state of denial would ignore the poll results and not re-examine their personnel policies, supervisor-employee relations, and management training."

A 2008 study, conducted by M. Sandy Hershcovis, Ph.D., et.al, concluded that bullied employees reported more job stress, less job commitment and higher levels of anger and anxiety. "Bullying is often more subtle and may include behaviors that do not appear obvious to others," she observed. She added that "the insidious nature of these behaviors makes them difficult to deal with and sanction."

Last June, the Wall Street Journal reported that the New York Senate passed a bipartisan measure that would allow workers who have been physically, psychologically or economically abused while on the job to file charges against their employers in civil court. The Journal stated that sixteen other states have introduced legislation in recent years aimed at curbing workplace bullying.

Just this February, the state of Washington focused on workplace bullying based on the assertion that one in five employees "directly experiences health-endangering workplace bullying, abuse, and harassment" and that "abusive work environments can have serious effects on targeted employees and serious consequences for employers." It is proposed that the Washington Law Against Discrimination (WLAD) be amended to make it an "unfair practice" to subject an employee to "an abusive work environment."

It is easy to see how quickly and dramatically the landscape has shifted as legislation is enacted to ensure a safe and protected workplace for employees. In so doing, the responsibilities and liabilities placed on employers have also increased.

Whether your motivation is impending legislation, potential liability from a claim for a hostile work environment, a tort action for "intentional infliction of emotional distress," a claim of assault based on behavior that is perceived to be "threatening," a workers' compensation claim, or simply the belief that all employees should be treated with dignity and respect, bullying must no longer, and can no longer, be ignored or tolerated in the workplace.

What is the best course of action? A person subjected to bullying behavior is best advised to:

Walk away when behavior becomes abusive.

Ask the person exhibiting the offensive behavior to cease doing so.

Have a co-worker present as a witness, if the interaction will be confrontational.

Log abusive incidents in a journal, including the date, time, and location when they occurred in addition to the specific content of the interaction.

Report flagrant and/or repeated examples of bullying to a practice owner, supervisor or human resources representative.

Employers should:

Exercise care that hiring procedures are in place that identify the potential propensity to bully. Conducting reference checking is essential. Background checks and personality instruments, such as the one Bent Ericksen & Associates’ provides, are also valuable and proven screening tools.

Ensure that bullying is prohibited and is properly addressed with written policies covering:

1) established reporting procedures (call for a copy of our

Problems/Concerns Report),

2) retaliation prohibitions,

3) confidentiality assurances,

4) a commitment to a prompt and thorough investigation, and

5) resultant discipline that will be considered if the allegations are found to be true.

Have a conflict resolution mechanism in place that will result in allegations being addressed respectfully and decisively.

Include the respect for others in the practice's values statement and include relevant behavioral examples. Recognize and reward unique and/or consistently respectful conduct with regard to customer relations in ongoing and regularly scheduled performance evaluations.

Be attentive to ostensibly minor personality conflicts in the workplace and address them positively and constructively before interactions deteriorate and cause tension and negativity.

Do an exit interview with employees who are severing employment with your practice (call for a copy of our form for this purpose). This provides you with the opportunity to obtain valuable information, to prevent a severance when you believe it to be inappropriate and/or be able to intervene when problems in your practice are identified.

Contact a human resources expert such as the technical assistance team at Bent Ericksen & Associates for assistance. Occasionally, an employee will allege the existence of a hostile work environment when in actuality it is a product of a confrontational but legitimate and non-discriminatory remedial intervention to ensure that work performance expectations are met. A human resources expert can help sort out the details and determine the best way to move forward given the allegations, whether legitimate or not.

Unquestionably, bullying is unacceptable in the workplace and should not be tolerated. The times have changed in this regard and the issue is more important than ever. Whether you are motivated to avoid liability and/or proactively ensure respectful behavior, as noted above, "only an employer in a state of denial would ignore bullying and not re-examine their personnel policies, supervisor-employee relations, and management training."

Written by: Rebecca Boartfield and Tim Twigg

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Common Practices Fraught with Risk

“Working interviews,” volunteering and/or unpaid internships are not uncommon in the industry, but they have become a source of increasing risk to dentists, both financially and emotionally. Getting caught doing these without considering compliance requirements can leave you vulnerable to a plethora of problems.

Working interviews, in particular, present complex issues that have serious ramifications for dentists who, knowingly or unknowingly, fail to be aware of or properly comply with the requirements. Here are two actual examples:

A dentist was interested in hiring an applicant as a dental assistant and had her come in for a “working interview.” She filed successfully for workers’ compensation as an employee, alleging that during the day she fell off a chair and hurt her back.

An applicant came in for a “working interview” and was not hired. She filed for unemployment. The doctor was ruled to be her last employer and liable for the unemployment claim.

While it is quite common in the industry to have applicants demonstrate their job-related skills by asking them to participate in a “working interview,” you can see from the two cases that this extension of the verbal interview can become a costly problem for the employer if not handled correctly.

Recently, the Department of Labor has made statements that they are going to crack down on employers who aren’t, or don’t, follow wage & hour regulations correctly, which results in an employee losing out on compensation rightfully due to him/her. They are on the “hunt,” so to speak, for violators.

When and how can applicants engage in “working interviews,” internship programs, or otherwise “volunteer” their services for an employer? And, if any of these can happen, what’s the best way to use them and still protect yourself? The following will shed some light on this and provide some best practice guidelines.

Definition of Employee

To start, we have to look at the government’s definition of an "employee." Simply put, employment is defined very broadly and considers an individual an employee if s/he “suffers or is permitted to work” by an employer.

“Working Interviews”

In some practices, the “working interview” is paid time for one or a few days. In terms of wage & hour rules this is not a problem, provided the person is receiving compensation for his/her time, the rate in effect during that time is at least minimum wage and the individual is paid for applicable overtime hours.

In many other practices, the “working interview” is conducted for one or a few days and is not paid. Clearly, based on the very broad definition stated above, this is simply not allowable. If you ask an applicant to perform work at your practice, whether “officially hired” or not, and no matter how short the time period, it is work time and must be paid.

Since the individuals in the examples above are considered your employees, for good or bad, then your workers’ compensation insurance comes into play if the person is hurt on the job, and you will likely be considered the person’s most recent employer if the person does not remain employed and seeks unemployment compensation. Unfortunately, there is no avoiding this problem when conducting “working interviews.”

You may ask, “Is there a way to test an applicant’s skill before hiring that keeps him/her from becoming an employee and risking all of the above?” Yes, it’s called a “skills assessment.” In order to conduct a skills assessment legally, the following guidelines must be applied:

Never have applicants replace regular workers, or fill-in for workers who are off. This could appear as though the person is an employee, or temporary employee, because s/he is being treated as one by replacing another.

Do not have the applicant perform a skills assessment for more than 1-2 hours.

Refrain from providing any form of compensation, even something as little as a gift certificate, for participating in the skills assessment. Recent interpretations state that an employment relationship does not exist if there was no contemplation of payment to begin with.

Be sure no productive work is performed, or “no productivity is derived,” by the applicant’s participation, such as would occur when an applicant provides services to clients, which are billed for, like a hygienist cleaning a patient’s teeth. In the case of a dental assistant or a hygienist, working on patients, potential colleagues, or anyone else who may benefit from the work or fulfill an employer’s obligations, is considered performing productive work and should not be done. Instead, assess the applicant’s skills on a ceramic model, yourself or an employee who does not receive dental treatment as part of a dental benefits program. For other employees, billing insurance companies, receiving payment from patients, scheduling patients, calling cancellations, etc. is also considered productive work and should be avoided.

Prior to conducting the skills assessment, each applicant should sign an agreement, such as our “Skills Assessment Interview Agreement” [call us for a sample copy of our form #108]. This agreement outlines that a) the skills assessment is an extension of the interview process and is voluntary, b) there is no promise of employment, c) no employment relationship exists, and d) no compensation will be provided. Get the applicant’s signature on this form.

One final note, while following these recommendations will protect you from employment-related claims, if a person is hurt on your premises, then you may still have to deal with a personal liability claim through your general liability insurance.

Volunteering & Unpaid Internships

Whether it is staff “volunteering” to provide dental services to a charity group or having unpaid interns work for the summer, employers often erroneously believe they have greater flexibility in determining whether the employee will get paid than they really do.

Under the FLSA, employees may not volunteer services to “for-profit” private sector employers. An individual can be considered a volunteer under the FLSA if the individual:

Performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation, or receipt of compensation for services rendered; although a volunteer can be paid expenses, reasonable benefits, or a nominal fee to perform such services;

Offers services freely and without pressure or coercion; and

Is not otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer.

Employees may end up volunteering for their employer when they are encouraged to get involved with a charitable organization. The big trap for employers is crossing the line from encouraging staff to coercing or pressuring staff to volunteer. The following factors could mean compensation is due:

Employer requests volunteers to participate;

The employee is under the employer’s control while volunteering;

The employee is required to be on the premises;

The volunteer work occurs during normal work hours;

Non-participation adversely affects employees’ working conditions or employment status; and

There is a significant connection between the employer and the charity and they are considered a single enterprise.

As for volunteering for an employee’s own employer, this will not pass the test with the FLSA when the work is performed during normal work hours, the work is similar to the employee’s regular job (regardless of when the volunteer hours occur), and the employees’ participation is not truly voluntary.

Regarding internships, in order to have an intern who is not compensated, the FLSA states that all of the following criteria must be met:

The training, though it may include actual operation of the employer’s facilities, is similar to training that would be given in a vocational school;

The training is for the benefit of the student;

The student does not displace regular employees, but works under close observation;

The employer that provides the training receives no immediate advantage from the activities of the trainees or students and, on occasion, his/her operations may even be impeded;

The student is not necessarily entitled to a job at the conclusion of the training period; and

The employer and the student understand that the student is not entitled to wages for the time spent training.

NOTE: The California Division of Labor Standard Enforcement (DLSE) adds 4 additional points for criteria. Just know that if it doesn’t pass the federal test, it definitely won’t pass California’s.

Conclusion

Not paying individuals when they meet the government definition of “working” is very risky. Without carefully considering all of the various components related to working interviews, skills assessments, volunteering, or unpaid internships, the employer could wind up with messy claims that are sure to be more costly than it otherwise needed to be. The safest course of action is to pay people for their time spent providing a service to the employer--whether “officially hired” by you or not.

Written by: Rebecca Boartfield and Tim Twigg 

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Difficult Employee? No Problem!

As an employer it is safe to say that at one time or another (if not already) you will have to deal with a difficult employee. If you are one of the fortunate few who have not experienced this, then you probably have lent your ear to many a colleague, friend or family member, who has.

Some maybe you inherited when you bought or took over a practice, maybe you missed some signs of their true character when you interviewed them and/or you didn’t do an adequate reference check to learn difficulties or problems experienced by previous employers. Now, here you are, feeling stuck.

Once you find yourself in one of these situations there are steps you can take to either correct the behavior or, if necessary, end the employee’s employment on more positive terms. This means learning some basic management skills and gaining the confidence to proactively address the problems.

Negative Neal

Neal constantly complains about policies and procedures and when you make adjustments to your policies and/or procedures he complains about that too. He will openly let you know that your long-term employees don’t do their jobs right and that the new employee you just hired doesn’t have a clue. Overall his negative attitude is poisoning your practice.

Bullying Barbara

This employee asserts her will on everyone, even you. She manipulates every situation for her benefit by using condescending language and tone to make people uncomfortable and less likely to express their views, ideas or opinions. She may even carry herself physically in a way that seems threatening.

Over time you find this employee is controlling you and your practice, and your employees are scared to have an opposing opinion. Everyone is avoiding confrontation at all costs. A number of fantastic employees have resigned from your practice as a result and you realize your practice really is run by Bulling Barbara.

Know it All Al

This employee knows everything, at least he thinks he does, and he does not hesitate to tell you, his co-workers and your patients. He questions your decisions at every turn and does not have a problem publicly stating you are wrong in front of other employees and/or patients causing awkward and uncomfortable moments.

Better Late than Never Lisa

This employee is late more often than she is on time. She always has a major emergency that just happens to come up right before she is due into work. Sometimes she will call in to announce that she is running late, and other times no one knows what has happened to her and she is surprised that you and your staff are upset that she is an hour late and did not even bother to call. You have talked with her on numerous occasions resulting in an immediate change that falls back to old habits within weeks.

I will come to Work when I Feel Like it Felix

This employee comes to work when it fits into his schedule and makes it clear that his personal life takes priority. He may or may not call in his absence and will work time off for doctor and personal appointments to maximize his time away from your office.

Initially his requests for time off and excuses for his absences seem legitimate, so you worked with him. Now that some time has passed you realize your staff completely resents him and wonders why you keep this guy around. His absences are causing patient care to go below your standards and you realize a change needs to be made immediately.

What is the best course of action when dealing with these types of difficult employees?

As you can see all of these personalities bring great challenges to any practice no matter how big or small--don’t think these challenges will magically go away, they rarely do. The longer you wait to address these issues the more problematic each of these difficult employees becomes, at times creating mass destruction in their wake.

First, make sure “your house is in order.” Namely, making sure your policy manual is current and up-to-date; having signed acknowledgements and employment agreements with each employee, and having comprehensive, up-to-date job descriptions for each employee and position, including essential duties and core attitudinal and performance competencies.

Your policies, coupled with the essential duties, core attitudinal and performance competencies on the job description, form the foundation, basis, reasoning and/or justification for counseling an employee regarding their job performance or poor behavior. These also support consistent, effective and fair staff management that is objective rather than subjective.

Second, ensure that you have appropriately and objectively documented the past poor job performance issues. Focus on performance-related issues, not the emotions that surround them. This may include supervisory notes describing your verbal remedial intervention and the employee’s response or a formal performance evaluation.

Third, have a private meeting with the difficult employee and discuss how his/her attitude, behavior and/or comments are affecting your patients and the overall operation of your practice. Clearly explain your expectations, referencing your policies and the employee’s job description as needed.

If appropriate, solicit solutions from the employee. Some employees may be more open to assisting with the solution than others. When employees are part of creating a solution to the area(s) of concern they tend to take more ownership of the situation which increases the chances for a change in their behavior.

Employees who are negative, confrontational or who like to bully do not always see themselves in this negative light. They may be resistant to what you have to say. This is not the time to back down, but rather the time to insist on change and, if applicable, giving them the course of action they should take to make that change.

What happens if the difficulties still persist? Then you meet again with your difficult employee taking a more formal approach through a written employee counseling memo. During the meeting, note that there has not been the necessary improvement needed to meet your expectations regarding attitudes, behaviors and/or comments. Once again use specific examples on the counseling memo and relate those examples to how their negative attitudes, behaviors, and/or comments are affecting your practice. This is also the time that you let your difficult employee know that if they choose not to make the necessary changes further disciplinary action, up to and including termination will follow.

By following the steps mentioned you not only give your difficult employee the opportunity to change, you also are documenting the legitimate, nondiscriminatory reasons for termination if your difficult employee does not heed your counseling and make the necessary changes to be a productive member of your team. Since difficult employees may be in a protected class (such as age, disability, religion, national origin or ethnicity), your documentation is key to supporting your decision for termination and keeping discrimination and/or wrongful termination claims at bay.

Do not be held captive by your difficult employee, take action and create a better working environment for yourself and your employees. No employee is indispensable--especially one that is adversely affecting your practice. There are good employees out there waiting to be discovered.

Written by: Michelle Allen and Tim Twigg

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Don’t Be Your Employee’s Banker/Counselor/Doctor!

Employers are regularly characterized poorly in various media outlets. While there are those who deserve it, most don’t. Throughout the years, we have met, and worked with, some of the nicest employers, who genuinely want to do right by their employees. This is to be commended, no doubt. The world needs many more good employers to outweigh the bad.

Unfortunately, sometimes the “nice” employers take this desire to do right too far--to a level that is not recommended. This can result in employers crossing boundaries that they shouldn’t and put their business at risk for liability.

Ensuring that employees are paid properly and are given every right due them under the law is a must. To be a good employer, you must be focused on this part of managing employees. You also need to create a good environment with good working conditions, which should certainly include having a solid team that provides support and who generally treat each other well. To retain your employees and compete with your colleagues for good employees, employers must be competitive with providing good benefits, paid time off and so on. This includes mentoring, coaching, teaching and training.

What you shouldn’t do is go beyond these essentials and become the employee’s counselor, psychologist, medical doctor, act like a parent, or anything else beyond being a good, solid employer. While it can be instinctual to want to lend a helping hand, provide emotional support, or in some other way “be there” for an employee, it can wreak havoc on you and your business in the real world if you go too far.

We’re not suggesting you suddenly become a cold-blooded individual and completely disregard your employee’s needs. We are simply suggesting that you carefully manage your actions to ensure you’re not inadvertently creating problems for yourself or your business. Let’s look at some ways this can play out at your business and how you can handle them to minimize potential problems.

Pay Advances

Your long-term employee, who you love, has just come to you and asked for a pay advance. She has provided a very compelling story about why she’s short financially and needs income fast to help her through this hard time. She’s a good employee, and you have no reason to doubt her. Besides, it’s only two weeks’ worth of salary – can’t be that bad, right? You decide to give it to her. Unfortunately, before she can pay it all back, she quits. You’re mad because she quit and owes you money. How dare she after how good you’ve been to her?

This started off okay – good and trusting employee, not much money, long-term individual – you thought you were doing a good thing. But then, you get burned because the employee is leaving even while owing you money. This is where the nice aspect becomes a problem for you – how do you get the outstanding balance returned to you? Are you just out this money?

All too often, we find that employers believe the outstanding balance can be deducted from the employee’s final paycheck. This is a mistake. While there is no federal law prohibiting this type of deduction, it does put limitations on how much can be taken at any one time. The employee must always earn minimum wage for all hours worked, without exception, and so, even if you can deduct it, you may not get much, depending on how big the outstanding balance is.

State laws do impose restrictions on deductions that can prevent any amount being recovered. Some states simply do not allow this deduction at all (looking at you California). Some states require written authorization that must be signed by the employee at the time the advance was provided before a deduction can be taken. While other states require employers to obtain permission from the state Department of Labor before being able to manage outstanding balances through paycheck deductions.

While it’s nice to help someone out like this, you may find it’s not worth it in the long run. This money may simply be a loss to you depending on the state you’re in and how your employee decides to treat you.

Suspected/Known Alcohol Abuse

Your employee is coming in late, missing work, looks disheveled, and has been seen over indulging at a local bar on weeknights. You suspect, or maybe even truly know, that he does have an alcohol problem. While this is affecting work and needs to be corrected, you are more concerned with his wellbeing. If it weren’t for the problems that have been occurring, you otherwise like this person, feel like a friend to this person and only want him to get better. You know that firing him will not help his situation. Wouldn’t it be better to give him support to get treatment? Wouldn’t it be better to help him correct the problem and remain employed?

Unequivocally, I think everyone would answer “yes” to those questions. Understandably, no one wants to see someone battling the problem of alcoholism and would instinctively want to get that individual help. Sadly, only the person in that situation can make the choice to get help. No one else can do that for him.

Two things can happen in these situations if the employer decides to get involved with “fixing” the employee: One, the employee can react badly. If s/he doesn’t think there is a problem, the individual can get defensive, angry, feel insulted, or feel as though their privacy has been invaded and so on. Ultimately, this can create more problems than is intended by the employer who is just trying to be nice.

Second, employers can put themselves at risk for liability because alcoholism can be considered a disability. In fact, even just coming to the conclusion that someone is an alcoholic can be a “perceived disability.” Either way, this means the employee is now protected by certain laws, which, if not handled properly, could become problematic for the employer in terms of liability.

It is best, and we recommend, handling only the job-related issues with the employee. Is the employee having attendance issues? Address that. Is the employee’s appearance suffering? Address that. Manage the employee’s performance and how it is affecting their job and your business – not why the performance is below your standards. Why performance is poor is not your concern and, in some cases, can create more problems for you. Until, or unless, you are forced to deal with issues like alcoholism, focus your efforts on job-related and objective issues and nothing more. You’re not a trained counselor – don’t try to be one.

Suspected/Known Mental Illness

Directly or indirectly employees can make it known that they have depression, anxiety, or other mental illnesses. In some cases, this kind of information cannot be ignored by the employer. In other cases, it doesn’t have to become part of the employment relationship or managed by the employer. It really depends on the facts of the situation at hand.

Mental illnesses become the employer’s responsibility when the employee, either directly or indirectly, indicates that his/her performance is hindered by what is probably a disability (i.e. the mental illness). For example, the employee states that s/he cannot handle a certain job duty because of his/her anxiety. In this situation, it is best to get professional guidance on how to manage this appropriately and legally because certain laws exist in this area.

If performance is otherwise okay and there is no indication that the mental illness is impacting the employee’s job, then employers should leave it be and not get involved further. Do not ask questions. Do not inquire about prescription drug use (unless there is a job-related reason or safety concern). Do not talk to the employee about problems in his/her personal life that can be impacting the mental illness. Do not probe the employee to know more about the illness s/he is dealing with. And so on.

Much like alcoholism, blurring the lines between employer and counselor can create liability. There are laws in place that protect employees from having to share this information. There are laws in place that must be followed if someone has a true mental illness, which results in a disability, and needs an accommodation. If not properly followed, you can experience serious consequences if the employee chooses to make this an issue with proper government officials.

Knowing this kind of detail about your employees can always be used against you, even though you may be attempting to be nice. Let’s say you probe your employee about her anxiety. What is it? What is she doing about it? Does she need drugs? Is she taking those drugs? Then, after getting this information, somewhere down the line you decide to terminate this employee. Although the reason has nothing to do with the mental illness you talked to her about, the employee (and her attorney) can certainly make it appear as though it is. Unless you have the documentation to prove otherwise, this may be a losing (and costly) battle.

Don’t put yourself in this situation. Keep things professional. Be cognizant of the employer/employee boundary and don’t cross over it unless you have to and, when you’re forced to manage this situation, reach out to professionals to handle it properly.

Conclusion

Being an employer can be challenging. Sometimes it seems cruel because doing what’s right for your business may interfere with your ability to be someone’s friend, confidant, support person, etc. Sometimes following the laws means you have to keep your distance. While this is not a call for you to be mean, callous or completely disregard your employees and the situations that may impact them, it is important that you recognize what it means to do that, and what it means to cross those boundaries.

We wholeheartedly believe that keeping the employment relationship job-related, objective and professional is the best and safest approach for managing your employees as a whole. It’s hard for things to go wrong when you do that.

Written by: Rebecca Boartfield and Tim Twigg 

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Effective Disciplinary Documentation, Documentation, Documentation!

A dentist fired an employee who wasn’t performing well. She was absent a lot, failed to chart patients correctly, and had the lowest production numbers. After months of putting up with this, the dentist sent her packing and hired a replacement employee. Six months later the dentist received a letter from an attorney threatening to sue him for wrongful termination.

This former employee is alleging that the dentist discriminated against her. The dentist contacts a professional to seek advice and his/her first question is: “What kind of documentation do you have supporting the performance problems you had with her?” Unfortunately, the dentist doesn’t have anything. The dentist says, “Who needs documentation anyway when I am an “at-will’ employer?”

The Problem

“At-will” employment is a common law doctrine that does mean that the employment relationship can be ended, by either party, at any time with or without notice and with or without reason. All states, except Montana, adopt this common law doctrine as the foundation of the employment relationship.

Nothing in the employment “at-will” doctrine states that the employer will be free of any consequences should he/she exercise his/her “at-will” rights and fire someone. The evolving nature of employment regulations has imposed hurdles that supersede the “at-will” prerogative and, thus, can result in liability for the unknowing employer.

One of these hurdles is violating an employees civil rights, i.e. protections against discrimination. More specifically, employers may not discriminate against an employee who belongs to a “protected class.” This protection takes precedence over “at-will.”

Examples of protected classes are age, gender, sex, race, color, religion, or national origin. The list of protected classes is continuously growing to include more and more protections for employees, so, in a sense, most, if not all, of your employees will likely fall into a protected class at one time or another.

In a situation like the one described above, the dentist, even in an “at-will” state, will be considered guilty until s/he can prove s/he is innocent. In other words, the dentist has “the burden of proof” to demonstrate that the termination was based on legitimate and non-discriminatory reasons.

The solution

Written records of deficient work performance or misconduct help employer’s defend against an employee’s allegation of wrongful termination. The written documentation, or Employee Counseling Memorandum, (call us for form #418) should:

State the reason for the counseling in specific, factual, concise terms. For example, in the last two months you have been absent 10 times. The dates of these absences are May 5, 6, 15, 25, 31 and June 10, 11, 12, 20, and 21.

Outline the specific nature of the discipline. For example, verbal warning, written warning, or suspension. If suspension, specify the duration and whether or not it is without pay.

Describe the corrective action expected of the employee in specific, measurable terms. For example, production numbers must be at or above 30% each month.

Warn of potential consequences if the employee fails to improve. For example, a failure to improve may result in further disciplinary action up to and including discharge.

Include signatures and dates from all parties (employee, employer, and witness) in order to avoid “he said, she said” claims.

Do not:

Place the employee on probation or list a probationary period (this may negate your “at-will” status)

Put a time frame on improvement. For example, do not say “you have the next 4 weeks to improve,” or “we will re-evaluate your improvement in 4 weeks,” or anything of the sort. This, too, can negate your “at-will” status.

Make inflammatory remarks, subjective statements, or draw conclusions which may or may not be accurate

Be sure to attach all relevant records pertinent to the disciplinary action (policies, attendance records, written statements/complaints, etc.) to the counseling form and place in the employee’s personnel file.

Conclusion

Unfortunately, in most cases like the one described above, the dentist will be found liable for discrimination and forced to pay a significant monetary award to the former employee. This doesn’t have to happen! You can choose a different, safer path by adopting our Golden Rule in Employment Compliance: “Objective documentation is the single most effective defense in any type of legal action.” Start creating that paper trail NOW!

Written by: Rebecca Boartfield and Tim Twigg

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Help! What is An I-9 Form?

An I-9 form is a document that all employers, no matter the number of employees, are a required to have for each employee. While this requirement has been in place since 1986, we find dentists are still sorely lacking in the knowledge and/or are failing to properly manage this area of employment compliance.

This should concern you because, according to the most recent data:

In fiscal year 2007, Immigration and Customs Enforcement (ICE) conducted only 250 audits. In fiscal year 2012, ICE I-9 audits had risen to more than 3,000.

From 2009 until 2012, fines for I-9 violations grew from $1 million to $13 million.

The number of company owners, executives and managers arrested during ICE investigations increased to 238.

All indications are that fiscal year 2014 will, in fact, be worse. So this is not the time to be slacking off in this particular area of employment compliance.

Why bother?

The Immigration Reform and Control Act of 1986 (IRCA) requires all employers to verify the identity and employment eligibility for all employees hired after November of 1986. This is accomplished through the use of the I-9 form.

What needs to be done?

Section I is completed by the newly hired employee. Beyond getting basic information, this section asks the employee to indicate whether or not s/he is a citizen of the U.S. If not, the employee must state how it is that s/he is authorized to be in the U.S. working.

Section II is completed by the employer. In this section, the employer examines Section I and asks for documentation supporting the employee’s claim that s/he is authorized to work in the U.S. The employer reviews the documents and records the required information on the form.

Section III is also completed by the employer when an employee’s documents expire or an employee is terminated from employment and is re-hired at a later date.

You should be using the most current I-9 form available. Visit the United States Citizenship and Immigration Services website for the most current form (or call us). The form should have an expiration of 03/31/16 on it.

What are the Form I-9 Requirements?

Section I of the form must be completed on the employee’s first day of employment. Section II must be completed by the employer within the first three working days of the employee’s employment. This includes inspection of the provided documents. You cannot require the form to be completed prior to hiring the employee. NOTE: If employment is for 3 or fewer days, then both sections one and two must be completed on the employee’s first day of work prior to the employee commencing work duties.

The list of permissible documents is on the form under List A, List B, and List C. The employer must get one document from List A, or one from List B and one from List C. The employer may not specify the documents they will accept, nor may the employer request more documentation than is required. If the employee cannot provide the document(s) within the given timeframe, then termination of employment is advised. Continuing to employ undocumented workers is not recommended.

Photocopying the supporting documents provided is not required. Whether you choose to keep copies or not, you must be consistent with all employees.

What are the retention requirements?

You should keep the I-9 forms in a separate file. You must keep the forms on file for the duration of an employee’s employment. Upon termination, you must keep the forms three years from the date of hire or one year from termination, whichever is longer.

What are the penalties for lack of compliance?

Failure to comply carries civil and criminal penalties. Specifically, if you fail to complete or retain I-9s, civil fines range from $110-$1,100 per violation (i.e. for each time an I-9 should have been completed, retained, etc.).

Conclusion

Complying with I-9 form requirements is not difficult, or even time-consuming; it’s easy and, really, there isn’t a good excuse for being out of compliance. If you have been maintaining your I-9 forms, great, and you may want to consider an internal audit to ensure everything is in place correctly. If not, get on it now. Don’t risk serious financial losses if you ever find yourself in an audit situation.

Written by: Rebecca Boartfield

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Laboring over Pregnancy? Breathe, Breathe, Breathe

When an employee tells you she’s pregnant ideally your first response would be: “Congratulations!” It’s a happy time for the mother-to-be even though you may be thinking: “Oh _____, what do I do now?”

After reality sets in, questions then come up like:

How long is a pregnancy leave of absence?

Am I even required to provide a leave of absence?

Do I have to hold her job and if so, for how long?

How do I fill her position?

What if she refuses to do her job, like take x-rays?

YIKES!

Ideally you, along with your pregnant employee and the rest of your staff would easily be able to answer these questions. Why? Because you’ve dealt with it before: 1) you have a policy manual in place that spells it all out, 2) you have all of the necessary forms for proper documentation, 3) you have us as a resource, and 4) you’ve kept up with the changes in federal and state requirements regarding pregnancy.

While it may be impossible to anticipate all possible iterations, we do know how an employer “should” handle each situation for a safe and positive outcome. Failure to do so can become a big, screaming consequence.

The Laws in Play

Depending upon your state and the number of employees you have, employers have to take into consideration both federal and state requirements that govern pregnancy-related leaves.

The federal law is called the Family and Medical Leave Act (FMLA). This law applies to employers with 50 or more employees within a 75-mile radius. Your state may also have a state-equivalent FMLA law with employee thresholds that are either higher or lower and generally offer the same types of leave, with few differences, as FMLA.

Many states also implement separate Pregnancy Disability Leave laws that usually apply to employers with fewer than 50 employees. These state-specific Pregnancy Disability Leave laws outline the length of leave available, any eligibility criteria, as well as many other aspects to the leave.

Employers should be clear on which laws are applicable and what rules need to be followed in order to ensure compliance when dealing with a pregnant employee asking for leave.

Step One: Notification of Pregnancy

It is important to recognize that no law requires an employee to inform the employer of pregnancy whether during the recruiting process or after. At some point, though, the information does have to get out to the employer and, when it does, there are administrative aspects that should be completed:

Ask the employee to read the policy applicable to pregnancy-related leaves from your Personnel Policy Manual to establish expectations and outline certain parameters of the leave.

For planning and scheduling purposes, determine the following: 1) estimated date of delivery to help pinpoint when leave will begin and 2) the employee’s intentions following the leave, i.e. return to work or not.

Give the employee a copy of the Leave of Absence Application Form (call us for a sample copy of our form #427) for her to complete.

Have the employee sign the Health Hazards during Pregnancy Release Letter (call us for a sample copy of our form #413). NOTE: If the employee refuses to sign this document, do not force the issue. It is essentially a letter of informed consent. This document is not required by law; employees should not suffer any adverse action as a result of refusing to sign this form.

Once the above has been done, you and your employee can continue to work together provided there are no further job-related bumps in the road that impede you in some way.

Step Two (maybe): Employee Refuses a Job Duty

The desire to remove certain job duties from pregnant employees is not driven solely by employees. We get calls from employers all the time asking, all on their own, how they should modify the employee’s job to accommodate the pregnancy. Although it is natural to want to protect the mother and baby and, therefore, want to volunteer to change the employee’s job or move her to a less risky position in the business, you should not do this unless specifically requested. This act of compassion can carry legal ramifications.

When the employee states that she does not want to perform certain duties (i.e. heavy lifting, taking x-rays, etc.), you will, under certain conditions, have the burden of attempting to accommodate such requests. Here is the process for determining accommodation:

When the employee states that she cannot or will not perform certain duties, the employer is not under an obligation to immediately do as the employee asks. The employer should express a desire to accommodate such requests and, in doing so, must also consider the needs of the business. Then the employer should inform the employee that she must obtain written documentation from her treating physician about any restrictions that s/he has placed on her due to the pregnancy or pregnancy-related conditions.

The employee should be provided with her up-to-date job description that is compliant with the Americans with Disabilities Act (i.e. specifically lists the “essential functions” of her job) for her treating physician to use as guidance for determining whether or not restrictions should be placed on her. This way the physician can use objective criteria based on real facts about the employee’s job and not have to rely on just her word when making this decision.

Once an employer has been provided with written documentation of the restrictions, s/he must begin what is called a “good faith interactive process” with the pregnant employee. This is essentially an exchange between the employer and the employee about the restrictions and how to best accommodate them. Ideally, the accommodation will meet the employee’s requirements as well as not create undue hardship on the employer. Possible types of accommodation include, but are not limited to, shorter work hours, fewer days, elimination of specific duties, lifting or reaching requirements, voluntary transfer to another position, etc. It’s important to note that the accommodation need not be the one most favored by the employee. The employer can choose which accommodation will be provided. NOTE: All decisions about restrictions, the employee’s job, and/or accommodations must be based on essential job functions only.

It’s possible that the only accommodations available would result in “undue hardship” for the employer or business and, therefore, cannot be provided. “Undue hardship” means an action requiring significant difficulty or expense. The factors to be considered include, the nature and cost of the accommodation, the overall financial resources of the facility, the number of persons employed at the facility, the effect on expenses and resources, or the impact the accommodation has on the overall operation of the business. Although this is a valid, legal concept, it is often difficult to prove if challenged, so be very cautious if you are going to apply this to your situation.

Options for when accommodation cannot be met include termination of employment or putting the employee on an unpaid leave of absence for the duration of her pregnancy until she is able to return after the birth. Both are fraught with potential legal consequences; only proceed in this direction after consulting with professionals on your specific situation.

Step Two/Three: Employee Takes Leave

Be sure the employee is informed of the following:

The designated times she is to check in regarding her intention to return to work

That she must provide notification immediately if she decides not to return to work

The conditions upon which she can request an extension and that approval may be at your discretion

That if she does not return at the designated time and has not requested and been approved for an extension, it will be determined that she resigned from her position

How her health insurance, if applicable, will be handled during the leave.

Communication of the above can be achieved by providing the Pregnancy Disability Leave Letter (call us for a sample copy of our form #414).

Step Three/Four: Employee Returns to Work

Assuming nothing has occurred during the leave that prevents the employee from returning to work (i.e. employee decides not to or doesn’t return, business necessity prevents the employer from having a position available, etc.), the employee should return on the day that was planned. At that time, she should present a Medical Release to Work Form (call us for a sample of our form #428), or one that is the equivalent, that has been completed by her treating physician before resuming her job duties.

Conclusion

In the workplace, women who are pregnant constitute a highly protected class of individuals. As such, improper handling of pregnancy can lead to labor board complaints and/or lawsuits, which, in turn, can be financially detrimental to the business and stressful for everyone involved. It is important to know what laws and requirements apply to you and successfully manage your obligations.

Written by: Rebecca Boartfield

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Playing the Independent Contractor Game – Not!

It all starts innocently enough. You are looking to add an associate, hygienist or dental assistant and don’t want to hire them until you become convinced that they are going to “work out”. So, you set the person up as an independent contractor to avoid (you think) the taxes, paper work, labor laws and other challenges associated with this person being an employee.

Sounds simple enough in theory; not so though, in real life. Like it or not, governments ideally want all workers to be employees. Why? That’s easy - more taxes. As such, the criteria for determining employee vs. independent contractor status are stacked in favor of workers being employees.

Bottom line: the overwhelming majority (in excess of 95%) of dental office employees do not meet the criteria to qualify as independent contractor. We find throughout dentistry that misunderstandings and misinformation abound on this matter. Using the information below will help you better understand and more successfully navigate the inherent risks.

A good rule to follow is: if the practice/business controls not only the results to be achieved, but also the means used in achieving the result, an employer-employee relationship exists, rather than an independent contractor relationship.

The relevant issues used to specifically determine an individual's status are: behavioral control, financial control, and the relationship of the parties.

Behavioral Control

Under the category of behavioral control, the IRS considers facts that demonstrate whether the business has maintained the right to direct and control how a worker performs the tasks for which s/he is engaged. The factors specifically considered under this category include the type and degree of instruction and the training provided to the worker.

Employees are generally subject to instructions about when, where and how to work. Independent contractors are not. In analyzing the degree and type of instruction, the IRS considers whether the worker receives instructions regarding:

Which tools or equipment to use

Which workers to hire or assist in performing work

Where to purchase supplies and services

What work must be performed by a specific individual

The order or sequence to follow in completing the work

The key consideration is whether the business has retained the right to control the details of a worker’s performance or, in the alternative, whether it has given up that right.

Financial Control

Under the financial control category, the IRS considers “[f]acts that show whether the business has a right to control the financial and business aspects of the worker’s job,” including:

The extent to which the worker has incurred un-reimbursed business expenses.

The extent of the worker’s investment.

The extent to which the worker makes his or her services available to the relevant market.

The manner in which the business pays the worker.

The extent to which the worker can realize a profit or incur a loss.

Type of Relationship

Factors considered with respect to the nature of the parties’ relationship include:

Whether a written contract describes the relationship that they intended to create.

Whether the business provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay or sick pay.

The permanency of the relationship.

The extent to which services performed by the worker are a key aspect of the regular business of the company.

Employment Agencies

When workers are provided through a contractual arrangement with a staffing firm, it is essential that the agreement between the employer and the staffing agency be carefully reviewed to ensure the staffing agency is considered the primary employer. In such a case, you would pay the staffing agency a fee and the staffing agency would pay the employee. Thus, you could consider the temporary help an independent contractor. If, however, you are paying the temporary help directly and you only paid the staffing agency a “headhunter’s fee,” then the temporary help cannot be considered an independent contractor. S/he must be treated as a regular staff member (i.e. taxes, workers’ compensation, unemployment insurance, etc.).

If you have independent contractor workers, review the arrangements carefully in consultation with your labor regulations consultant and/or legal counsel to avoid becoming an enforcement statistic.

Written by: Rebecca Boartfield and Tim Twigg

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Religion in the Workplace

When managing employees, a good rule-of-thumb for employers has always been to treat all employees the same, apply the same rules, and don’t treat some employees better or different than others.

It’s a good rule, and it seems fair enough. Adhering to this, you assume, would avoid legal problems, right? Not necessarily. Sometimes, as strange as it sounds, you will be required to treat some employees differently and perhaps more generously than you would other employees. One example is religion in the workplace.

Religion and the Law

The background starts with Title VII of the Civil Rights Act of 1964 which protects people from discrimination on the basis of race, sex, color, national origin, and religion. This means that employers cannot treat employees who may fall into one of the above categories, also known as protected classes, less favorably than other employees not in those groups.

As it relates to religion specifically, the law provides that employers give reasonable accommodation to employees based on “sincerely held” religious beliefs. The reasonable accommodation provision means that an employee might get an exception to a rule of some kind or be treated more favorably than other employees.

Definition of Religion

The definition of religion under Title VII is very broad. Specifically it includes “all aspects of religious observance and practice as well as belief.” Religion does not have to include a formal church or sect, it does not have to be subscribed by a large population of people, and sometimes it may seem illogical or unreasonable to others. A belief is “religious” for Title VII purposes if it is “religious in the person’s own scheme of things.”

Reasonable Accommodation

Accommodation of a person’s religious beliefs will need to occur when the person’s religious beliefs or practices conflict with the employer’s requirement of that individual. Providing reasonable accommodation is any adjustment to the work environment that will allow the employee to comply with his/her religious beliefs. Thus, accommodation may entail the employer making a special exception to policies or job-related expectations for the religious individual. Accommodating religious beliefs for an employee can encompass three areas of the workplace: the work schedule, the job duties, and appearance requirements.

Examples of reasonable accommodation may include:

Changing scheduled work hours to allow an employee to participate in religious observances;

Modifying dress standard requirements;

Allowing voluntary substitutes or swaps in staff;

Switching one paid holiday for another.

The term “reasonable accommodation” does not have a straight forward definition. The EEOC has stated that “reasonable” will be determined on a case-by-case basis. Therefore, what is a reasonable accommodation for one employee may not be for another. The ultimate goal must be eliminating the conflict between the employer’s practices and the individual’s religious beliefs. If this can be done, then it must. Simply reducing the conflict will not be acceptable if another solution provides for complete elimination of the conflict.

Undue Hardship

The EEOC allows an employer to deny a request for accommodation if it would result in “undue hardship” to the employer’s business. This is a concept not easily defined and certainly not simple to apply. When claiming “undue hardship,” the burden is fully on the shoulders of the employer to justify and prove if later challenged.

For a religious accommodation to cause “undue hardship” it must impose “more than de minimis cost.” This determination can only occur on a case-by-case basis and may include such factors as: the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will need a particular accommodation. The employer cannot rely on hypothetical information; only objective, concrete, fact-specific considerations when claiming “undue hardship.”

Conclusion

If faced with an employee requesting an accommodation or refusing to perform a job duty, based on workplace protections, know that you can’t ignore it, disregard it, or otherwise take adverse action against him/her, unless you want to subject yourself to liability. Consult with compliance professionals to get the right guidance on how to manage the complexity of religious protections and accommodation. Don’t let this blindside you and wreak havoc on your business, which is your most valuable asset.

Written by: Rebecca Boartfield and Tim Twigg

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Salary Discussions Among Employees: You Aren’t The Sheriff Anymore!

Does this policy sound familiar?  “Salary information is strictly confidential. Your salary or anyone else’s should not be discussed with other employees or other unauthorized persons, on or off the job. Failure to adhere to this policy may result in immediate termination of employment at discovery of the first offense.”

This policy, and many others similar to it, is typical of what we find in policy manuals we review for dentists. While your wording may differ, this policy exists in hundreds of reviewed manuals. It is also one of the first policies that we recommend be removed.

While it is understandable that employers want employees to remain quiet about their compensation, the laws are quite clear that enforcement of this principle is prohibited.

The National Labor Relations Act (NLRA)

Congress enacted the NLRA in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy. This act applies to both union and non-union employers.

Section 7 of the NLRA gives all employees the right to "engage in concerted activities," including the right to discuss their terms and conditions of employment with each other. Section 8 makes it an unfair labor practice for an employer to deny or limit the Section 7 rights of employees. Based upon those two provisions, the National Labor Relations Board (NLRB) has taken the position for decades that employers may not prohibit employees from discussing their pay and benefits. Courts have basically uniformly supported that position.

State Laws

The following states have enacted their own laws supporting the NLRA: Michigan, California, Colorado, Illinois, Louisiana, Maine, Minnesota, New Jersey, Vermont, and New Hampshire. While the language is different in each state, the message is the same - “pay secrecy” policies are against the rules.

Social Media

With the advent of social media, numerous cases have now come before the NLRB related to employers discharging or otherwise adversely affecting employees’ employment when they have used social media sites as a platform for discussions, maybe even complaints, about their employer. In most of these cases, the NLRB has ruled in favor of the complaining employee and made it clear that it doesn’t matter if discussions are in-person or online, they’re all protected.

Limitations on Rights: It’s Not All Bad News

As of now, there is nothing in the either the federal or state laws allowing employees to discuss these issues during times they are supposed to be performing work. Caution must be taken to avoid double standards. Don’t exclude pay and working conditions as a topic of conversation and allow other types of conversations unrelated to work to occur. This could be viewed as evidence of intent to violate protected rights of employees.

Employees cannot divulge information that should otherwise remain confidential under laws like HIPAA even if they are also discussing their own working conditions, benefits, and pay. It may be appropriate to apply disciplinary action, or terminate employment, if this occurs. You will need to be diligent about your written policies and related documentation in order to prove that the action you took was due to the protected breach of confidentiality and not about the employee discussing his/her own pay and benefits.

Finally, these protections do not extend to an employee discussing someone else’s pay and benefits unless the information was obtained through ordinary conversation with others. These protections do not provide employees with the right to share confidential information about other employees, or gain unauthorized access to files or records about other employees and divulge it.

Conclusion

Whether it’s federal or state regulations, laws protect employees related to discussing such matters as pay and benefits. While you cannot prevent these discussions, you can create an environment in which this won’t be as big of an issue. You can start by promoting all that is right within your practice. Employees should know that your pay and benefit programs are competitive and meet or exceed the industry standard. Have clear advancement opportunities, merit increases, and strong open-door policies. When employees know where they stand and feel connected to the business and its success, they will be less likely to spend their time complaining or discussing their wages and working conditions.

Written by: Rebecca Boartfield 

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Salary versus Hourly–Which Way Is Best?

Questions about whether it is better to pay employees hourly versus a salary are quite common. There are pros and cons to both approaches, as well as advocates on both sides of the fence. Some consultants recommend paying staff on an hourly basis, while other industry consultants advocate for staff to be paid a salary.

Who is right? Well, that depends upon your specific circumstances. There is no one right method for compensating employees so long as the rules, when applicable, are followed. Each employer should determine this based on his/her own business needs and management philosophy. Regardless of which way you choose to compensate your employees, it is important to make sure that you adhere to applicable wage and hour requirements.

Before discussing the relative pros and cons of each method, let’s define some terms that are important in understanding the issues.

Hourly Compensation

This is as straightforward as it gets. This method simply pays employees for each hour, or portion thereof, worked. This is easy to understand and administer.

Salary Compensation

Payment on a salary basis means that an employee receives a predetermined amount of compensation on a regular basis, such as weekly, bi-weekly, or monthly. This is usually regardless of the number of hours worked by the employee each week, or each pay period.

Employee Classifications

Under the Fair Labor Standards Act (FLSA), employees fall into one of two categories: exempt or non-exempt. Methods of compensation, such as salary or hourly, do not determine a legal classification of employee.

Exempt Classification

Exempt employees do not receive overtime pay; they are exempt from the overtime pay requirements and calculations. Don’t you wish you could arbitrarily make every employee exempt? Not possible. This classification applies to executive, managerial, supervisory, administrative positions, or governmentally-defined professional positions that typically require special licensure. To qualify, there are specific rules regarding the amount of time spent managing/supervising/administrating, the numbers of people managed/supervised/administered, and the type of managerial/supervisory/administrative duties and authority that must be met. Most employees do not qualify for the exempt classification because of the strict rules.

Non-Exempt Classification

Non-exempt employees receive overtime pay at all times, when it is worked, regardless of their method of compensation; they are not exempt from the overtime pay requirements and calculations. This classification applies, by default, to any and all employees who do not meet the guidelines or definition of exempt, as outlined by the FLSA and/or state laws and thus applies to almost all employees.

Note: All of the FLSA’s requirements for exempt status are extensive, specific, and stringent and cannot be covered here in detail. Suffice to say that at least 95 percent of all dental staff is non-exempt. For specific questions about the criteria or one of your employees, call our office.

Overtime Triggers

On a federal level, the overtime trigger is 40 hours in a week. Anything over 40 hours in a week must be compensated at time and one half. Some states, like California, have daily overtime triggers in addition to the federal weekly requirement. Be sure you are in compliance with both, if applicable.

Many employers fall prey to the myth that: “if I pay someone a salary, then I don’t have to pay them overtime.” This couldn’t be more false. The method of compensation has no bearing on overtime requirements. Simply paying an employee a salary does not exclude you from having to pay him/her overtime. “Salaried” is not a category for overtime purposes.

The determining factor for overtime is employee classification as mentioned above. Exempt employees are excluded from having to be paid overtime. While non-exempt employees, regardless of the method of compensation, must be paid overtime.

Exempt Employees

An important detail for exempt employees is that they generally must receive their compensation in the form of salary. There are provisions that dictate what the minimum salary must be, which may be significantly increasing in the coming months. Generally, exempt employees must be paid for the full day even if they’ve only worked part of a day. Full day deductions are strictly limited with rules that must be followed before doing so.

Non-Exempt Employees

There is no rule that says non-exempt employees have to be paid a certain way. They can be paid a salary whether that’s a daily, weekly, or monthly. They can also receive their compensation in the form of a daily rate, an hourly wage, piece rate, or commission. So long as you are paying a non-exempt employee at least minimum wage, you may compensate them at a rate and method of your choosing. Non-exempt employees must only be paid for time actually worked. This means that when employees are late, have to leave early, or take time off during the day, whether that’s a half or a full day, they are not required to be paid.

Unlike exempt employees who all have to be paid the same based on their classification, non-exempt employees need not all be compensated in the same manner. You can have some employees be paid hourly, some daily, and some a salary depending on what you think will be best for your practice.

While exempt employees are protected from a variety of salary reductions for work not performed, non-exempt employees are not. If a salaried, non-exempt employee fails to work the full schedule required, then his/her salary can be reduced by the appropriate number of non-work hours. Be sure you have clearly established policies, in writing, explaining that you will avail yourself of this right to avoid confusion and arguments.

So…Salary or Hourly?

As you can see, this question truly only applies to non-exempt employees. For this classification of employee, we do recommend hourly pay because it is simple, straightforward, easy to understand and administer.

On the other hand, paying a non-exempt employee a salary often does have a psychological value for the employee. And, it can be administratively easy if overtime isn’t worked or time-off deductions don’t exist.

If you decide to pay your non-exempt employees a salary, be clear how many hours per week the salary is based upon. It can be any number up to 40 hours. As mentioned, you can dock the employees pay. Make clear how you’re going to handle this when the employee works less than the defined schedule. In other words, what will you do if you define the salary as 34 hours per week and the employee only works 28 unexpectedly? Similarly, if the employee works more than the defined schedule, you must increase their pay. In other words, a salary based on 34 hours must be increased if the employee works 38 hours. And don’t forget that any hours over applicable daily and/or weekly overtime triggers must be paid at time and one half. All of which you should have in writing to ensure everyone is on the same page.

Conclusion

As you can see, there are many misconceptions and misunderstandings about paying employees on a salary basis, especially as it relates to non-exempt employees and overtime. It is not as simple as “just pay everyone a salary.” In fact, when you get right down to it, the cons can outweigh the pros depending on your circumstances. Be sure you know the rules: 1) classify your employees correctly, 2) follow wage, hour and overtime requirements, and 3) have any and all exceptions clearly defined in writing to avoid liability and misunderstandings.

Written by: Rebecca Boartfield

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The-End of the Dreaded Yearly Performance Review (Part 1):  Ahh, Music to My Ears…

The dreaded yearly performance review...was there ever a time when any employer enjoyed them? The answer is probably not. Nothing gets a louder groan from an employer than the mere mention of performance reviews. Nobody likes them, yet everybody is told to do them, year after year. “Suck it up and get it done” people say; “this is good documentation” and “helps you in the event of a lawsuit or claim.” But, is that really true?

For several years, there has been an ongoing debate in the HR profession about the value of performance reviews today. It has been the focus of Human Resources publications, as well as articles in the Wall Street Journal and Businessweek.

Based on our experience with thousands of clients throughout the United States, we have concluded that the standard, age-old annual performance review is no longer as effective and carries potential liability. Today requires a new, more relevant, meaningful and productive approach.

The argument in favor of performance reviews has been that reviews create documentation that can be used to help defend employers if their actions, mostly terminations, are called into question. The fine print on this, however, has always been performance reviews done well. Unfortunately, it’s the “done well” part that becomes the problem.

Let’s look at some recent statistics regarding performance reviews:

1 in 5 employees (20%) think their bosses don’t even think about the appraisal until they’re in the room

44% don’t think their boss is honest in the appraisal

87% of employees found traditional performance reviews to be ineffective; 94% of chief executives responded in the same way

30% of performance reviews ended up in decreased employee performance

58% of bosses said they don’t think it is an effective use of time

If you can’t say something nice… We know how that statement ends, don’t we? Saying something that isn’t nice is really hard to do, particularly when face-to-face with an anxious employee. Negatively critiquing an employee, even when justified, feels bad, so supervisors/employers will almost inevitably find themselves writing reviews in such a way to soften the blow, or try to ensure there is a balance between the good and the bad. This prevents writing a candid, honest review that accurately reflects the performance of that employee.

Fast forward to a lawsuit and the plaintiff’s attorney subpoenas all documentation, which includes the performance review. The employer is, of course, contending that the employee was fired for performance. What will the plaintiff’s attorney do with a performance review in hand that praises the employee for things being done right and minimizes the poor performing aspects? If some recent court cases are evidence, it won’t be good for the defense.

In our previous articles on this topic, we’ve cited the following pitfalls to avoid when writing performance reviews:

Recency effect

Central tendency

Leniency & strictness error

Halo & horn effects

Contrast error

Rater bias error

For most employers, these are difficult to avoid. The supervisor/employer has to be really cognizant of these pitfalls. Too often the performance review is put off until the last minute and then the employer rushes to put something together without thinking about the above being included in the judgment of the employee’s performance. These can then become the very things that get used against employers by plaintiff’s attorneys.

Additional problems with performance reviews are timing (or lack thereof), the inability to remain objective, too much focus on the past, and possible situations that may suggest discrimination or retaliation. The list seems to be getting longer each day.

Consider this, in an article titled The Legal Case for Eliminating Performance Reviews by attorney Judith Droz Keyes, she states, “In 35 years of practicing employment law, I can count on one hand the number of times a performance review was of significant help to my employer-client in defending against an employee’s legal challenge. Even in those few cases, the employer’s position would likely have been as strong without it.”

She goes on to say, “In writing this article, I did a simple word search for ‘performance evaluation’ or performance review’ in published decisions only in the federal and state courts in California and only for a six-month period. There were 40 decisions where the performance review was cited by the court as a material fact in the case. In all but one of the cases, the review was cited not by the employer to support its defense but by the plaintiff-employee to provide his or her claim.”

All of this is evidence that the performance evaluation system that has been used for years is not the best approach for today. Yesterday, before we became such a litigious nation, this may have been appropriate. But, this is today, the year 2014, and the times are changing.

What Now?

Tossing the annual performance review in the nearest round receptacle does not mean the employer is relieved of managing employees’ performance, giving feedback, and establishing documentation. It just means we need a more effective and relevant way to accomplish it. This new way is a multifaceted approach that may create less stress, less tension, and less worry and actually build better performance in the long run.

Goal Setting

One of the big problems with performance evaluations, and why they’re difficult to conduct, is that they focus too much on what has already occurred in the previous year. Employers can’t do anything about what happened in the previous 12 months, it’s a done deal. Employers can, however, work towards a better future by setting goals and holding employees accountable to those goals. To that end, what if, for example, we changed the annual performance review to the annual goal setting review? It doesn’t have to be annual – it could be quarterly or monthly, if that’s best for the business.

Importantly, employers must follow up once the goals are established, otherwise, how will employees know if they’re succeeding? How will they get feedback on how to reach the goals if they aren’t? How will they know what to modify or change to progress towards those goals? Therefore, employers have to monitor employees and meet with them to discuss, on an ongoing basis, what’s going right, or what areas need addressing to progress towards those goals. Good goal setting not only establishes the goals, but also clearly outlines expectations on how to get there and then holds employees accountable for achieving them.

An example of this working is Zions First National Bank. They implemented a performance management system based on WIGs (wildly important goals) and PIGs (pretty important goals). Each week and each month supervisors meet to discuss progress or lack thereof and create steps for making improvement towards their goals. The focus was future-driven, even as performance feedback was being provided. The results are awesome. In a survey of nearly 1,000 employees:

91% said the process helped develop their job skills and knowledge

85% said it assisted in their career growth

92% said they had their supervisors’ “ongoing support and recognition”

These goals should focus on what’s most important to the person’s job performance. When done right, this opens up the conversation to being a constructive dialogue about the most important behaviors that are tied to the company’s most desired results. It will eliminate the burden of wading through overlapping and ambiguous categories and subcategories with a 1-5 scale on a performance review form that doesn’t address the real problems, highlight goals, or create ways to improve in a constructive and effective manner.

Ongoing Feedback

Even if employers move to an annual goal setting review, that doesn’t mean waiting until the next review period (whether that’s annually, quarterly, monthly, or weekly) to address problems that may arise between now and then. Nothing should be saved up and nothing should be a surprise. What is noticed about an employee’s performance today, good or bad, should be expressed today, if at all possible.

Holding off until the next review could result in having to unload a bunch of problems onto the employee at one time, which won’t make the supervisor/employer feel good when doing it, and certainly won’t make the employee feel great once it’s been done. Besides, if it’s a problem, it will just continue unless addressed, which will only create more problems and make things worse. Honest, real time feedback is likely to have more of an impact on the employee and create behavioral changes sooner (ideally) rather than later or never.

Disciplinary Documentation

When ongoing feedback and communication fail to impact behavioral changes with the employee, then sometimes employers must move towards a more formal system of documenting and addressing problems. Using our Employee Counseling Memorandum, employers can address problems at the same time as establishing documentation. This type of communication and documentation should be on record prior to reaching termination. This type of documentation should:

State the reason for the counseling in specific, factual, scrupulously honest, concise terms.

Outline the specific nature of the discipline.

Describe the corrective action expected of the employee in specific, measurable terms.

Warn of potential consequences if the employee fails to improve.

Include signatures and dates from all parties involved.

Incorporating this kind of documentation process into the performance management picture is not new. This has been recommended as an appropriate approach all along. The difference now is, with the performance evaluation form gone, there is less of chance that the employer also has other contradictory documentation on file to negate the effectiveness of this documentation.

Conclusion

Eliminating the tired, age old, annual performance review process from an employer’s plate may feel strange because conducting them has been recommended for years. But it’s time to let go and move on. This is not an argument for doing nothing. This is about replacing the old with something newer, better, and more in line with the business as a whole. This simple action can free up time to work on more value-added activities and projects – things that drive business and create a more motivated, healthy workforce. The bonus is that it may also put employers in a stronger position should they find themselves having to defend their actions.

Written by: Rebecca Boartfield and Tim Twigg

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The End of Performance Reviews (Part 2): Proactively Managing Performance with Goal Setting

Did you read our last newsletter article entitled: “Ahh, Music to My Ears….The End of the Dreaded Yearly Performance Review”? Did it make you feel good and nervous all at once? The article indicated you might be able to give up your current performance evaluation system (that’s the feel good part) and then put goal setting at the forefront of your performance management going forward (that’s the nervous part). While the shift to focusing on goals may seem daunting, it is worth it and easier than you may think.

The old performance evaluation system, with some kind of ranking scale, may seem easier because it is known and comfortable. Comfortable doesn’t always mean the most effective. While an employer can fairly quickly rank employees against various categories, add a few comments, and be done, this process produces stress, particularly if the employee isn’t a great performer and the issues haven’t been discussed during the year.

The questions to ask are: Is easier better? Does it bring about effective change, build morale and positively affect your bottom line? If yes, then stick to what you are doing. If no, read on.

Managing performance with goal setting can be, at first, challenging. Why? Because it is not a one-size-fits- all approach. Unlike standard performance evaluation forms, nobody can give you the goals for your employees. Only you (or the employee) can and you know what you need from your employees to support your success.

That being said, it will get easier and this article will shed some light on the goal setting process and get you going in the right direction.

Why Goals?

The simple answer is: employee engagement. You can’t be a manager of a business and not be concerned about employee engagement. In your business, it’s likely you see a mix of employee engagement occurring regularly– some are engaged and some aren’t and some are in between.

Isn’t it likely true that an improvement in engagement would mean an improvement across the board? Employees motivated to make your business, their positions, better, will positively impact things like customer service, productivity and morale.

In groundbreaking research, the Gallup group created the Q12 Survey. Gallup “conducted decades of research - writing, testing, and refining thousands of question items to find the ones that would best measure employee engagement. In 1996, Gallup finalized the 12 question items that consistently and powerfully link to business outcomes, including profitability, employee retention, productivity, safety records, and customer engagement.”

The twelve core elements that they uncovered as the best predictors of employee engagement and performance are:

I know what is expected of me at work.

I have the materials and equipment I need to do my work right.

At work, I have the opportunity to do what I do best every day.

In the last seven days, I have received recognition or praise for doing good work.

My supervisor, or someone at work, seems to care about me as a person.

There is someone at work who encourages my development.

At work, my opinions seem to count.

The mission or purpose of my company makes me feel my job is important.

My associates or fellow employees are committed to doing quality work.

I have a best friend at work.

In the last six months, someone at work has talked to me about my progress.

This last year, I have had opportunities at work to learn and grow.

Notice that the very first question is about knowing expectations at work. This would seem to be a fundamental component to high performance and employee engagement. Goals, among other methods of communication about expectations, like job descriptions, can be a significant source for creating that experience for employees. Not to mention helping address #3, #6, and #11 specifically, and others on the list like #9.

Creating goals

As the manager/owner/employer, creating goals begins with you. You must know where you want your business to go in order to determine the best way to get there. Therefore, you need to carefully analyze your business to determine what needs to be improved.

Once that’s accomplished, you have to tie your overall business goals to your individual employee goals, at each level of the organization. This is commonly referred to as “cascading goals” – a process that integrates goal-setting activities at all organizational levels, pointing to the goals outlined at the highest level. As goals cascade downward, they become more narrowly focused allowing for specific objectives to be defined.

You want everyone, in their own way, working towards the achievement of the goals you established at the executive level. For example, if your goal is to increase business by 10%, what does each employee need to do, or achieve, in order to help you accomplish your goal?

Things to keep in mind:

The employee needs to be able to do the work; people can’t achieve a goal that is not within their scope of influence or current capability.

The employee must have the tools, resources, and access required to get the work done.

Expectations must be well-defined, and the employee must have sufficient time and bandwidth to meet milestones.

Goals must be reasonable. The challenge of a stretch goal can be invigorating; an impossible target will certainly be frustrating and can be demoralizing.

Managers must be prepared to offer guidance and coaching.

Writing Goals

Writing goals can be critical to whether or not they will be achieved. A misunderstood goal will be ineffectual; an overly ambitious goal will hinder motivation. It’s important that the goals be S.M.A.R.T. – an acronym you’ve probably heard before, but it’s worth discussing again. S.M.A.R.T. stands for Specific, Measurable, Attainable, Relevant, and Time Bound.

Specific: Exact, accurate, clear, unambiguous, and without the use of generalities. You must specifically define what you expect the employee to do. Use action verbs when possible. You should take into consideration the employee's personality and experience level. For example, a highly autonomous and more experienced employee will likely need fewer details than a less confident or seasoned employee.

Measurable: You will need to identify how success will be measured. What is the concrete criterion? This is usually stated in terms of quantity, quality, timeliness or cost. This is how you will be able to objectively assess whether or not the employee is achieving the goals established. For example, a goal could be for the employee to increase production by 25%.

Attainable: Is the goal within the employee’s capabilities? Is the goal part of the employee’s overall authority? Goals need to be realistic – not out of reach and not extreme. If you can’t answer this question: “How can the goal be accomplished?” the employee won’t be able to either. Ensure that the employee has the resources and time, as well as access to necessary information (i.e. data, people) in order to be successful at reaching the goal.

Relevant: The goals should matter to the employee and align with goals for the team, department/division, and organization. In doing so, be sure the employee understands how his/her individual goals contribute to the success and/or failure of the goals at higher levels. In this sense, you are giving the employee context for the work they do.

Time Bound: Specify a delivery date and/or schedule. When does the goal need to be completed? For example, “by the end of the 4th quarter of this year” or “every month.” Goals should be grounded in specific time frame or target date. This helps create a sense of urgency and can prevent day-to-day activities from getting in the way unnecessarily.

Getting comfortable with establishing goals in this way will take some practice. For simplification, think of the aim of S.M.A.R.T. goals as specifying who, what, where, when, and why of the goal and creating shared understanding and expectations. Ultimately, the purpose is to help the employee, the team, the department, and the organization succeed.

Pitfalls to avoid:

Consider the employee's total set of goals. While each individual goal may be achievable, you may be assigning the employee more goals than they could reasonably be expected to successfully complete. Generally 3-5 should suffice.

Don’t create a situation in which safety, ethics, or morals will need to be compromised in order to achieve the goal. Be sure employees know you don’t want short cuts (cheating), which can be dangerous, to become the manner in which a goal is accomplished.

Don’t create goals that are so narrowly defined that employees miss the bigger picture. You don’t want employees to focus myopically on short-term gains and lose sight of the long-term effects on the organization.

While goals should be time bound, don’t make the time line inappropriately short. Too short of a timeframe can result in long-term problems - short-term goals encourage short-term thinking.

Think about whether or not the goal will influence risk-taking. Define acceptable levels of risk. You don’t want your employees to take too much risk and put the organization in any kind of harm.

Conclusion

The process of creating and writing goals as a means of increasing performance management is a shift worth making. Yet, poorly written goals will not help your organization or employees get better, they will hinder total performance on all levels, not to mention be potentially damaging along the way. Start slow in this process, maybe write one to start, and see how that goes. Get feedback from your employees, learn from mistakes, and further enhance your process before going too far.

Once you’re on your way with that part of goal setting, you can work on monitoring and feedback. Goals will not be successful without it. That’s Part 3 of our series.

Written by: Rebecca Boartfield and Tim Twigg

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The End of Performance Reviews (Part 3): Performance Monitoring and Feedback

In our last two articles, we began working our way through the process of transitioning from annual performance reviews to goal setting. The first, entitled “Ahh, Music to My Ears….The End of the Dreaded Yearly Performance Review,” focused on why you should consider a change in overall performance management. The second, entitled “The End of Performance Reviews Part 2: Proactively Managing Performance with Goal Setting”, outlined how to create goals for your employees.

In this, our final installment on this topic, we will look at the critical piece of monitoring employees’ performance and providing all important feedback, both positive and constructive. Much like the typical performance review, goal setting will not work if the employee is not receiving feedback.

Remember in our second article we discussed the twelve core elements that are the best predictors of employee engagement and performance? To highlight a few, as they relate to feedback:

“In the last seven days, I have received recognition or praise for doing good work.”

“There is someone at work who encourages my development.”

“In the last six months, someone at work has talked to me about my progress.”

Clearly, employees want to receive feedback from someone at work. And, if that’s the case, why do employers all too often fail to provide it?

In talking with thousands of employers nationwide about various HR related issues, problems or concerns, we often ask, when the issue is related to performance: “have you talked to the employee?” Too frequently, the answer is no. How can anyone expect an employee to continue good work or stop bad work when s/he doesn’t know what the employer wants? And, really, that’s the bottom line with feedback – giving the person an opportunity to know what’s working and what is not.

Feedback is not an absolute cure, but it is fundamental and necessary if your goal is to turn things around. There are no guarantees, but that shouldn’t stop the employer from trying. Employees are the life of an organization; investing in them is one of the best ways to improve a business as a whole, and feedback can be an integral part of that improvement.

Monitoring Performance

Before anyone can provide feedback, however, the employee’s performance must be monitored to know what kind of feedback to give. Monitoring performance can be done in two different ways: quantifiable and behavioral.

Here are a few examples of quantifiable methods:

Sales/production reports

Deadlines met

Error reports

Budget forecasts

These methods specifically measure what an employee actually does from day-to-day, which can be easier for the employer to address. They are objective - these things either happened or they didn’t.

Monitoring an employee’s behavior may take a bit more work on the employer’s part because it’s not as simple as creating and reviewing a report or a budget. Here are some ways to capture behavioral performance:

Observation: probably the most effective method because it means you’re actually observing your employees work. Nothing beats the power of direct observation.

Asking for an accounting: this must be accompanied with regular one-on-one conversations with the employee in which you probe the employee to account for his/her performance, one way or another. Questions like: “Did you meet the expectation?” “What actions did you take to meet them?” Then you must listen, make some assessments, and perhaps ask some more questions in order to determine the best way to approach any feedback provided.

Feedback from other sources like co-workers, supervisors, clients, patients, etc.

While this kind of monitoring can happen for all kinds of performance reasons, it is particularly vital to any goals that have been set for the employee. If the goals are S.M.A.R.T., as suggested in our previous article, then monitoring performance as it relates to a specific goal should be a priority.

Giving Feedback

It’s important to remember that feedback means positive too. Sometimes employers get so wrapped up in what’s going wrong, they lose sight of the fact that many things are going right, and employees should know both the good and the bad.

In fact, according to a recent article in the Wall Street Journal, there is a significant movement to encourage positive feedback in the workplace. The article states: “Fearing they’ll crush employees’ confidence and erode performance, employers are asking managers to ease up on harsh feedback. Accentuating the positive has become a new mantra at workplaces like VMware Inc., Wayfair Inc., and the Boston Consulting Group Inc., where bosses now dole out frequent praise, urge employees to celebrate small victories and focus performance management around a particular worker’s strengths—instead of dwelling on why he flubbed a client presentation.”

The article goes on to mention the use of other tools to assess someone’s strengths. Like, for example, the Drake P3 assessment that is used by our clients, which assesses a person’s talents and core competencies in a number of job-related categories. As well as Gallup’s StrengthsFinder tool.  “The rising popularity of tools like Gallup’s StrengthsFinder….suggests how many more companies are taking a positive tack.”

With any feedback, it shouldn’t be a one way street. In fact, the more you can structure the feedback as a dialogue, the better the outcome. The process of openly discussing positive and constructive feedback can be essential for building effective relationships, raising awareness, maximizing potential, and improving one's performance.

Regardless of whether the feedback being given is positive or constructive, there are a few principles to apply:

Timely: Do not wait to provide feedback. Use the next available time that is practical to provide the feedback.

Specific: Refrain from using generic phrases like “you did a great job.” These are vague and won’t give your employee the necessary insight to know what should be repeated and what should be avoided.

Objective: This is particularly true of constructive feedback. It’s about the behavior, not the person. Describe what happened, what you saw, how it impacted the client, the team, the business, etc.

Continuous: Giving both types of feedback should be a regular occurrence in the employee-employer relationship.

For constructive feedback in particular, focus on changeable behavior. In some cases, the person just won’t be a fit and nothing can be done about it. For example, a personality type that you don’t like is not likely to change. What people say, how people go about their jobs, and how they interact with others can be managed and coached, other problems, particularly attitude, not-so-much. When you find yourself judging the person, not the behavior, you will know this relationship is probably not going to work.

One final note on feedback, in terms of goals that have been set, you should establish specific intervals at which point the employee’s progress in accomplishing said goals will be measured and discussed. This will depend on the goal. Some goals will be reviewed sooner than others. Is it a goal to be obtained in six months? Is it a year? This will guide you in how quickly, and at what intervals, structured meetings should occur to discuss the employee’s progress, or lack thereof.

Future-Focused

As with any performance management system, whether that’s the old performance review process or goal setting, employers tend to get wrapped up too much in the past. Here are a few thoughts about why focusing on the future may be a more effective approach:

We cannot change the past, but we can affect the future.

Nobody wants to be “made wrong” – doing so creates defensiveness. Future-focused conversations get away from “let me tell you how wrong you’ve been” and move to “let’s look at some solutions.”

People take it less personally. It removes the feeling of being personally attacked.

Most people don’t like getting negative/constructive feedback and most hate to give it. It can be a relief to all parties to not be in this situation.

Future-focused feedback can contain the same constructive points, but done in a manner that doesn’t further bash the employee with what went wrong that cannot be changed.

We all know that when we’re receiving negative/constructive feedback, we tend to tune out the speaker and start developing our responses in our head because we get defensive. Future-focused feedback allows the listener to be fully engaged.

Documentation

Throughout all of this, it’s important to not lose sight of ensuring appropriate documentation. That documentation can come in all different forms so long as you’re tracking the employee’s performance and the conversations you’ve had about it. This is particularly true for an employee who is not a high performer, who is not improving even with all the feedback, and is certainly not meeting established goals, which may very well mean you will have to terminate the employee’s employment.

In the first article, we detailed the best kind of disciplinary documentation and what it should contain. Here are some examples of other forms of documentation:

Any document containing the specific goals to be achieved (call us for a sample of our new form)

Notes within a file on your computer

Written statements from patients/clients/co-worker/other

Handwritten notes on a yellow pad

Remember that all of these notes and documentation, no matter the type, should be job-related and objective. Do not pass judgment or document anything of a subjective nature.

Conclusion

There you have it – successful performance management today is more about future-focused feedback and goal setting, as opposed to the dreaded annual performance review process. From these three articles you now have the tools. Now it is a matter of creating that change in your work environment. The ball is now in your court. We, don’t forget, are always on your side – call us if you want some help navigating these new waters.

Written by: Rebecca Boartfield and Tim Twigg

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Valid licenses: How much more important can it get?

Do you have employees who are required to have certain licenses and/or certifications? If yes, are those licenses and/or certifications current? When was the last time you checked?

Recently a dentist checked the website of the Local State Board of Dentistry and discovered that his full-time hygienist’s license had not been renewed for 2-years! The other part-time hygienist’s license had expired in February 2009.

Another dentist had a temp fill-in during his hygienist’s three week vacation. When the full-time hygienist returned, she noticed her license was missing from the wall and a fake one placed in the frame. The practice investigated and found the temp was in fact a clinical assistant from another state posing as a hygienist. The doctor had to call back all 73 patients seen by this woman for another visit and exam explaining to them what happened. Thankfully, none of them followed up with legal action against him.

Who would have thought of these potential problems? In today’s litigious society and amid the ever growing problems of identity theft and high unemployment, dentists need to be particularly vigilant. Without documentation, don’t make the mistake of assuming applicants and employees are certified or licensed.

Nothing is more important than maintaining the license to practice dentistry. Similar, is the maintaining of the licensure of the practice’s licensed or certified staff members. For example, registered dental hygienists are licensed to provide care to patients under the direct or indirect supervision of the dentist. And their licenses must be current.

There are a myriad of reasons, some intentional, some unintentional, that a license might not be valid, including: a name change, incorrect proper legal name or a change of address. Employers must be vigilant in ensuring that employees do indeed have the necessary credentials to be performing as expected.

The good news is that most states now have the ability to verify licenses online. Check with you dental association, board of dental examiners or state health department for the appropriate website.

Practicing without a valid license can be considered a felony and can result in legal proceedings as well as disciplinary actions, not only against the clinical staff person, but also the employing dentist for negligence or failure to safeguard patients. Are you willing to stake your own license and practice on the assumption that the required licenses or certifications are still valid?

While it is the responsibility of the licensee to make sure his/her license/registration is current and valid be aware that the State Board of Dentistry can hold the doctor accountable for having an unlicensed clinical staff member and apply the same penalties to the doctor as to the offending employee – meaning it could cost the dentist his/her license along with fines and/or other potential legal consequences.

Don’t make the mistake of thinking your liability insurance will cover or protect you. According to a representative for leading Dental Liability Insurance companies: “Board action against a dentist or hygienist is not considered a “malpractice” claim. Consequently, there is typically no coverage for a dentist / hygienist under the Professional Liability Insurance policy – the dentist / hygienist is on their own.”

An exception that may provide insurance coverage for a dentist or hygienist is if the Board action results from apatient bringing the action, in which case, the insurance company may investigate the action, and, with a “Reservation of Rights” letter, pay the claim of the patient if it constitutes neglect of the patient.

If you discover that you are employing an unlicensed hygienist or an expanded duty dental assistant, whether they forgot to renew their license or failed to procure a license initially, s/he should be relieved of duty immediately.

To prevent this from happening to you requires having an effective protocol requiring your licensed clinical staff (regular and temporary) to produce their current license, and more importantly verifying the credentials on an annual basis.

This protocol begins with an up-to-date Personnel Policy Manual. A comprehensive manual will stipulate that, when applicable, a current and valid license and/or certification is a requirement for continued employment. This policy would also describe the expectations for ongoing confirmation of validation and that any continuing education required for the maintenance of licensure/certification can be the responsibility of the licensee.

Here is an example:

“Positions within the practice may require licensure or certification. In such cases, maintaining valid and current licensure or certification is a condition of employment and is your responsibility.

For the purposes of recertification, any continuing education requirement must be managed (planned and scheduled) by you. If possible, please arrange to attend courses during hours you are not scheduled to work. Provide at least two weeks notice of courses you wish to attend during your regularly scheduled working hours so that arrangements can be made for substitute personnel.

Since licensure or certification is a condition of the job, compensation is not required and will generally not be paid for hours spent traveling or attending continuing education courses. However, the employer maintains the discretion to make alternative financial arrangements deemed appropriate at the time your courses are taken.

In addition, reimbursement for any expenses incurred (tuition, gas, hotel, etc.) during such continuing education events are at the employer’s discretion.

Prior to attending a continuing education event, the Continuing Education for Recertification Agreement must be completed and signed.

Upon completion of recertification, please provide us with a copy of the renewed license. The employer assumes no responsibility for employees who become delinquent in the number of units needed for recertification and who, consequently, lose their license. Failure to maintain a required license or certification may lead to termination of employment.”

By having a good Personnel Policy Manual in place, you will have, in writing, policies critical to the management of staff and be a guide for the administration of a consistent and fair personnel program. This manual will assure uniformity and fairness throughout the practice and communicate to everyone within the employment relationship the rights and responsibilities of all. A signed “Acknowledgment Notice” should be maintained within each employee’s personnel file (contact our office for a complimentary copy of form #203).

A second key aspect of an effective protocol is having well written job descriptions--ones that clearly outline the job requirements, including the need for specific and valid licenses and certifications. These requirements should be clearly stated in each employee’s job description.

A dentist may choose to pay for license renewal or the CE required to maintain an employee’s license or certification, which are a requirement of the job. The dentist also has the prerogative to make the costs (fees, travel, tuition, etc.) for license renewal or the CE required to maintain licensure/certification, which are requirements of the job, the sole responsibility of the employee.

Whichever option is chosen, the policy should be in writing and acknowledged by all employees.

Choosing to pay (or not) for license renewal and/or CE does not affect the “at-will” prerogative or create any unique type of liability or contractual relationship. Paying is simply a benefit, typically viewed positively by employees, and can help ensure employees follow through, since someone else is paying! Obviously, whatever choice is made should be applied consistently for all similar employees to avoid the risk of discrimination claims or a violation or breach of covenant of good faith and fair dealing claim.

In conclusion, for the health and well-being of your practice, as well as the health and well-being of your patients, every dentist should check on the status of the licensure of every one of his/her employees where a license or certificate is required. You should, as part of the annual performance review, obtain a copy of the hygienist’s or clinical assistant’s license/certification and verify its validity.

A new team member should never be hired without the dentist first confirming his/her current and valid licensure, typically through the use of a professional background check. The dentist should record the expiration date of that license and require the hygienist or clinical assistant to provide a copy of his/her renewal license PRIOR to the expiration date, maintaining a signed copy in his/her personnel file, and have all required employees’ licenses posted in plain view.

As the leader of the practice, you are the one to determine what is necessary for the safe, efficient and economic operation of the business. Make an informed decision. “NO LICENSE - NO RENEWAL LICENSE - NO JOB!”

Written by: Rebecca Boartfield and Tim Twigg

Special note of acknowledgement: this article was a collaborative effort with the authors and Ms. Kathy Asted of Asted Consulting Associates, Andover, MN; Ms. Donna Rosebush of The DBS Companies, Bay City, MI and Flossie Riesner, Riesner Consulting, Lansdale, PA