FOR THE PEOPLE

November 2009 A snapshot into the current issues affecting your people

Textual Harassment Finds the Courts

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Employers have new potential issues to face in the form of harassment via text message. Forty-six states have laws on the books that explicitly include electronic forms of communication (texting and email) within stalking or harassment laws. According to the National Conference of State Legislatures, 20 to 40 percent of all stalking cases involve electronic communications. So what does this mean for employers? You now have employees who are suing, alleging "textual" harassment by a manager, supervisor or other employee. In California, sending just one text whose message is considered threatening or obscene is enough to qualify as harassment. The current cases paint a stark reality of today's workplace. In one case, a female manager sent pictures of her private parts to a subordinate. Harassment charges were brought by the subordinate and this case in now in litigation. In another case, two coworkers started a string of colorful texts that Please see Texting, page 2

Illegal Immigrants Could Cost You Legally Inside This Issue

Textual Harrassment Find the Courts Illegal Immigrants Could Cost You Legally Performance AppraisalsDo We Really Need Them? One For the Road: Expansion of Family Medical Leave Act Yup, They Said It Perfect People Solutions
Last month, a Houston-based company was fined in excess of $1.5 million and three of its managers were found guilty of harboring illegal aliens. This is another in a string of cases where companies and managers are wrapped up in America's illegal immigration mess. The budget for U.S. Immigration and Customs Enforcement (ICE) has tripled in the last three years. The ICE is raiding businesses all over the country in search of illegal aliens, not only to enforce immigration laws but to keep businesses from abusing and misusing illegal workers. In order to stay out of the immigration spotlight, businesses must be diligent when it comes to both new hires as well as current employees. I-9 Form and E-Verify System New hires should be completing the recently updated I-9 form. Employers should be using the government's free E-Verify system to confirm that the Social Security Number (SSN) belongs to the employee. E-Verify is an internet-based system that allows employers to determine the eligibility of an employee to work in the U.S. using information reported on the employee's I-9. For most employers, the use of E-Verify is voluntary and limited to determining the employment eligibility of new hires only. There is no cost for employers to use EPlease see Illegals, page 2

Texting
Continued from page one ended with the male employee suggesting that they meet at a hotel. These messages were copied to a third employee who thought that the rendezvous had taken place and shared the news with other employees. This case is also currently in the court system. What can an employer do about this? Well, it becomes very difficult to manage the situation if the texting takes place during the employee's off time and doesn't use company equipment. Furthermore, "texters" don't always use complete words or sentences and thus the possibility of understanding exactly what was meant can be a challenge. Lastly, most employers don't have policies that specifically address text messaging and they certainly haven't included texting as part of their sexual harassment classes. Textual harassment can also be construed as texting someone past their desire for contact with another person. The language in the texts themselves might be harmless, but the number of actual texts is obsessive. There is no case law or legal precedent to establish how many texts are too many, but some states say there must be an actual "intent" to harass based on the volume or content of the messages. In the case of textual harassment, it would be a ideal for the employer to write an addition to their current company policies and have it signed by all employees. This would put all the employees on notice that textual harassment exists and may cause them to hesitate before sending a text to another employee. It also might be necessary to document the use of texts on company cell phones to see if there are excessive texts to another employee's phone. Remember, there is no privacy right as it pertains to a company owned phone. At the end of the day, your interest in addressing this issue will boil down to you assessing your legal risks and how much of a problem you think you might have. You could always send a text on the subject.

Illegals
Continued from page one Verify and it protects employers against possible legal actions. If any employer decides to go back and check the SSNs of current employees, they need to follow strict guidelines to avoid creating any discrimination or wrongful termination claims. Chief among the guidelines would be that all of the company employees at a particular location must have their SSNs checked, not just Hispanic employees or other "suspected" aliens. It is also imperative that the I-9 form is completed per the instructions. A phrase commonly taught to employers is that all new hires need either one form of documentation from column A or one each from columns B and C. Employers must be careful not to ask for any particular form of identification, as that can be deemed as discriminatory and is not part of the form's instructions. I-9s must be kept for three years after the employee is hired or one year after employment ends, whichever is later. Another area in which employers can potentially run afoul of immigration law is when an employer hires a properly documented alien but fails to keep up with their documentation status. For instance, an employee with an expired visa or green card can no longer work legally in the U.S. Immigration laws in the U.S. are complicated and the upcoming public debate on this subject could make it even worse. If you are the least bit confused, make sure you find someone who knows this area well before you end up on the wrong side of law.

One for the Road: Expansion of Family Medical Leave Act

Recently, President Obama signed new legislation that expands the Family and Medical Leave Act (FMLA). The new sections of the FMLA allow for: Caregiver Leave Up to 26 weeks of unpaid leave to an employee to care for a family member (spouse, daughter, son, parent or next of kin) who is injured while serving on active military duty. The expansion includes care for veterans who are undergoing any medical treatment or therapy for any serious injury that occurred during the five years preceding the date of treatment. Exigency Leave Up to 12 weeks of leave for urgent needs related to a reservist family members (spouse, daughter, son or parent) call to active service. The new section expands the leave benefits to include family members of active duty service members as well. It is clear that the FMLA will continue to be a vehicle for standardizing business conduct as it pertains to American families and the business community. To be eligible for the FMLA, employees must work in organizations of 50 or more employees and work at least 1,250 hours in a 12-month period (an average of 24 hours a week). Businesses should also be aware that some states and municipalities have laws similar to FMLA that apply to companies with less than 50 employees.

Performance AppraisalsDo We Really Need Them?

Today's economic environment is the biggest motivation for employees to perform. The threat of job elimination, layoffs, reduced hours, pay cuts or even the demise of the company has Americans working as hard as ever. Anyone with a job today who is not giving it their all under these conditions never will. So the true question is "Are Performance Appraisals the Key to Maximizing Performance During Normal Business Conditions?" The answer is not easy and has a lot to do with each individual company, the method they use and the value the organization places on the process. If the appraisal process is something that everyone in the company dreads, then you are getting very little from the exercise.

Why Performance Appraisals Are Often Dreaded

Managers don't know how to deliver them. It takes too long to write them, distracting managers from making money. Employees know that no matter how well they do, they won't get a good raise. Employees and managers don't understand what they are being appraised on. The appraisal is the organization's only way of communicating performance.

So does this mean that eliminating performance appraisals is the best way to go? Not necessarily. When you examine some of the best performing organizations, they have a robust and well thought-out process that engages all employees. The managers are well trained, and everyone understands the procedure. Pay is tied very closely to performance and even in bad times, the best employees get significant raises. Can you succeed without performance appraisals? Absolutely! If you and your managers are constantly giving feedback during the entire year to employees about how they are doing and you give raises based on this feedback, you can get by without doing a full-blown process. The only real challenge to not having appraisals comes when you are trying to discipline or terminate an employee for non-performance or if someone alleges discrimination in pay practices. If you decide to have performance appraisals, make sure that everyone understands what you are measuring and that those measurements are key to the growth of your business. Keep the forms simple to complete, easy to administer and tie them to raises. Make sure your best employees feel and see the love on their paychecks. The decision on how to manage performance should be tied closely to the culture of your company. If your business is laid back and informal, avoid performance appraisals. Your relaxed culture is one of the reasons people chose to work there. If your business is formal and constantly driving business metrics then it would be critical to have strict performance measurements.

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P ERF ECT P EOPLE S OLUTIONS

Yup, They Said It

A flight attendant was going over the pre-flight instructions: "To operate your seatbelt, insert the metal tab into the buckle and pull tight. It works just like every other seatbelt, and if you don't know how to operate one, you probably shouldn't be out in public unsupervised. "In the event of a sudden loss of cabin pressure, oxygen masks will descend from the ceiling. Stop screaming, grab the mask, and pull it over your face. If you have a small child travelling with you, secure your mask before assisting with theirs. If you are travelling with two or more small children, decide now which one you love more." After the plane landed, the attendant quipped, "As you exit the plane, make sure to gather all of your belongings. Anything left behind will be distributed evenly among the flight attendants." ***** A security guard stopped a worker who was walking out of the plant gates pushing a wheelbarrow with a suspicious package in it. He opened the package and found it contained nothing but some old bits of rubbish, sawdust and floor sweepings. After the same thing happened several days in a row, the guard finally said, "OK, I give up. I know you are up to something, but I just can't tell what. Please, I promise not to tell because I would lose my job too. Tell me what you are stealing." With a smile, the employee replied, "I'm stealing wheelbarrows."