Events that are not recorded will be regarded as non-events, as if they never occurred. Many employers do not realize that documentation is a necessity. Those that do grasp its importance do not always devote sufficient time towards maintaining documentation that will be adequate to defend themselves, should the need arise. Employers may find themselves in court, ardently stating that they spoke with their employee on several occasions, without any evidence to support their assertion. Time and effort devoted to proper documentation is a wise investment for any employer.

The Value of Documentation

Documentation provides protection to both companies and employees by presenting concrete evidence of data, facts and actions in the case of investigation, arbitration or litigation. Documentation provides proof that decisions concerning an employee’s status were entirely based on job performance and other related issues. Conversely, documentation protects employees from false claims maintained by managers or supervisors not performing their job properly.

What is documentation?

Documentation is the formal reporting of facts, incidents, evaluations and observations of any specific situation or communication. The most common form of documentation is the written word, but it may include videotapes, audio recordings and the like. Barring a specific request for an employee’s signature such as upon receipt of a handbook, training or possibly a disciplinary warning, documentation does not generally require an employee’s signature.

When to Document

Managers should ensure that they document as soon as feasibly possible following actual events. Studies indicate that as quickly as 15 minutes after an event occurs, a person’s memory begins to fade or change. Prompt documentation will be considered more credible and reliable.

Elements of Documentation

Documentation should include the full names and titles of the involved parties, the date the event occurred as well as the document writing date. Record the type of event observed or the violation witnessed, including specific details and photocopies of any evidence.

Objective and Specific

Be specific when recording your documentation, but remain completely objective, making sure to stick to the facts. Avoid stating “opinions” and steer clear of exaggerations. “Joe appeared to be deceiving me” would be considered an opinion lacking supportive evidence, whereas, “Joe avoided all eye contact during the meeting” is an objective behavioral observation.

In our next post, Employee Documentation: What to Do and What to Avoid, we will specify the circumstances which require documentation and identify common documentation errors worth avoiding.

Morgan Stanley Smith Barney is recognized as a global leader in wealth management services.  This new partnership provides CPEhr and its clients access to a wide range of products and services including investment advisory services, financial and wealth planning, credit and lending, cash management, annuities and insurance and retirement and trust services.

“One key element of the partnership is Morgan Stanley Smith Barney’s unique expertise and experience in corporate retirement/401k plans as well as managing personal wealth management,” says Harry Ogan, CPEhr’s Retirement Plan Analyst.  “As advisors to our retirement plans, they will work to ensure that we continue to offer the most comprehensive, cost effective solutions available to our clients and their employees.”

As fiduciary advisors, Morgan Stanley Smith Barney will lend its expertise to make certain that CPEhr’s plans remain competitive and provide employees the best investment options.

Furthermore, CPEhr’s clients and their employees now have access to a team of professional financial advisors to help them navigate through these difficult markets and advise with 401k investments to enhance the overall financial and retirement planning experience.  Employees can also obtain guidance with 401k plans from previous employers as well as other outside investments.   They will have full access to all of Morgan Stanley Smith Barney’s products and services.

For more information, please contact Harry Ogan, CPEhr’s Retirement Plan Analyst at (310) 270-9839.

How to recognize a difficult employee.

A manager must be able to recognize the behavior of a difficult employee. Difficult employees have a damaging effect on the workplace when they put a negative spin on decisions, undermine authority, create hostile work relationships, damage group moral and so much more.  A difficult employee will also spread rumors, refuse to cooperate, break the rules, avoid work, be frequently late, complain constantly and display anger.

A manager must first determine if the difficult employee has a performance problem caused by issues outside of work such as abuse, physical abuse, substance abuse, financial, family or personal health, and/or emotional.  In these cases, a manager may want to encourage the employee to consider outside help.

The Five Types of Difficult Employees

It must be decided if the difficult employee has a personality or behavior problem in order to decide on a course of action.  There are five personality types: The Bully, The Procrastinator, The Passive Aggressive and The Gossip and The Constant Critic.

1. The Bully. Personality traits for the Bully may include physical and verbal intimidation, shouting, profanity, throwing objects, blaming others and threats.  This behavior is often caused by low self-esteem and from seeking control. In order to deal with a bully, a manager should be firm; use open-ended questions; not compete, take notes, and require their cooperation to sit down and talk. If there are frequent outbursts,  it is critical to address the issues immediately to ensure a safe workplace.
2. The Procrastinator has trouble starting/completing tasks and lacks motivation. This is caused by a fear of humiliation, rejection, and failure.  It helps to set procrastinators up on a specific timetable, with required “mini” updates. Also, a manager must be prepared to re-assign the project to someone else.
3. The Passive Aggressive is friendly to your face and negative behind your back.  Not a team player, they agree with everything but end up doing what they want.  The passive aggressive is angry but dislikes confrontation.  The manager should be specific; concrete in expectations; clear about consequences; and try not to over supervise this type.
4. The Gossip talks to everyone about anything due to an extreme need to be liked and accepted. The manager should never participate in gossip and immediately identify it while using disciplinary action if necessary.
5. The Constant Critic falsely accuses and undermines others behind closed doors, including the boss and company decisions.  This type also humiliates others in public settings in order to control the emotional climate at work. 

How to determine if the behavior of a difficult employee can change.

Meeting with the employee will determine if their behavior can be changed. First, a manager must be calm, consistent in communication, and courteous.  Before the meeting, objectively define the issue, decide the ideal outcome and write a script.  The script should be designed to keep the employee open to conversation and ask for their assistance.  Start with a goal, which should be aligned with the goals of the individual, the department and the company.  One should be specific in defining expectations.  Be clear on both the manager’s role and the employee’s role. Identify the issue and possible causes; clarify workplace policies, and ultimately seek a solution from the employee.   Create a time frame for how long the solution should take.   At the end of the meeting, recap the conversation and confirm agreed upon solutions.  Be sure to document the conversation and use progressive discipline if appropriate.

Should the Employee be terminated?

First, determine if the workplace is creating “difficult employees.”  For example, the following workplace issues can create difficult employees:

• when a manager prefers to avoid conflict;
• has discomfort being a disciplinarian;
• employee’s strength mask the weaknesses or “snows” the manager and coworkers;
• personal friendship between the manager and the employee.

If the workplace is not to blame and the behavior of an individual becomes excessive such as going beyond the company’s policies and procedures and interfering with productivity and/or safety of themselves or others, it may be time to terminate.  This must be carefully considered since terminations affect credibility and morale, turnover costs are high, and unlawful termination claims should be avoided at all costs.

The program was open to all public and privately held companies working in Los Angeles County.  The assessment involved a confidential Employee Engagement and Satisfaction Survey which was used to evaluate the workplace experience and company culture.

Harold Walt, CPEhr’s CEO, states, “I genuinely believe in our people and we will do everything that we can to ensure success by promoting an environment that celebrates diversity, collaboration and achievement.  We know that by empowering the right people with talent, dedication and extraordinary can-do attitudes, we will always come out on top.”

CPEhr offers a wide range of benefits and programs to its employees in an effort to promote a positive and productive work and life balance.  Many of the benefit offerings are also available to the organizations to which CPEhr provides Human Resources services.  Corporate employees enjoy activities such as the CPEhr Olympics, a softball team, annual fitness challenges, weekly yoga classes, and monthly employee celebrations for birthdays, anniversaries, personal milestones and achievements.

“We feel very privileged to be recognized alongside such wonderful and innovative Los Angeles employers,” says Faith Branvold, CPE hr’s President.  “I am motivated and inspired each and every day by the team of professionals that I have the opportunity to work with in providing outstanding value to the cherished clients we serve.”

Which law to follow?

As a general guideline, the law (federal or state) which provides greater protection to the individual employee will take precedent.  Other times, state law dramatically broadens the base of employees that qualify for protection.

Employer Responsibility

There is a significant difference in attitude between the federal approach and the state approach regarding the extent to which an employer is responsible to comply with the law. The federal government, through various Supreme Court cases (Faragher v City of Boca Raton, for example), strongly ENCOURAGE employers to train and educate their employees regarding the laws of harassment and discrimination.  Punitive damages may be reduced or eliminated in circumstances where businesses were able to provide “proactive” evidence of intent to comply and provide a safe and harassment free environment. However, this training is not mandatory.

In contrast, California (along with Maine and Connecticut), REQUIRES private sector employers to provide unlawful harassment training to all managers of businesses with 50 or more employees.   California takes the law a step further by requiring this training to be provided again every two years with very specific rules regarding documentation and tracking.

Discrimination Protections

Perhaps one of the most striking differences can be found in the area of discrimination protections. The California Fair Employment and Housing Act, otherwise known as FEHA, is the primary California law that prohibits employment discrimination against employees.  Through the federal laws, such as the Civil Rights Act, Title VII and additional amendments and laws (ADEA, ADA, USERRA, Civil Rights Act of 1991 for example) all employees nationally are protected from discrimination based on race, color, religion, gender (sex) and national origin/ancestry, age, medical conditions, mental and physical disabilities, military service, marital status, pregnancy and related medical conditions.

California also has addressed these issues through FEHA which protects from discrimination by all businesses supporting the federal protected categories. FEHA adds sexual orientation and transgenderism as additional protected categories.

Defined by the number of employees

In order for an employer to be covered by the federal laws, they must have 15 or more employees. For ADEA, the employer has to have 20 or more employees. What that means is that an employer with 14 or fewer employees would be not be subjected to these federal laws.

In contrast, FEHA states that harassment applies to all employers in the state regardless of the number of employees.  In addition, FEHA states that all employers in California with 5 or more employees must comply with the gender discrimination laws including sexual harassment, gender harassment and harassment based on pregnancy and associated medical conditions.

A Recent California FEHA Lawsuit

The complexity of FEHA is underscored by a recent judgment issued by the California Court of Appeals in the case, Wills v. Superior Court of Orange County. In this case, Linda Wills was an employee of the Orange County Superior Court. She was diagnosed with bi-polar disorder, but did not disclose this to her employer. After acting aggressively and violently against fellow employees she was let go, and subsequently sued the court for unlawful discrimination. Following an extended trial and appeal, the Court of Appeals ruled in favor of the employer, stating that despite her disability, her threats of violence and unacceptable behavior violated company policy. For more details, read the complete report here.

In summary, it is critical for employers to recognize their employment obligations, and potential liabilities, under both federal and state laws. It is highly recommended to engage the services of an employment law professional in your state of operations to provide the proper guidance and direction in all areas of employment compliance.

Disclaimer

The obstacles faced by many businesses in achieving these goals are the limitation of time, resources, and manpower to effectively improve their HR infrastructure. The level of expertise and know-how required to impact the HR systems is usually beyond their means. More often than not, these critical areas are left by the wayside as other tasks dominate management’s time and energy.

The HR Outsourcing Solution

A solution that has been growing in popularity over the past decade has been to bypass the conflict completely, by outsourcing the complex, time consuming, or unproductive tasks relating to employee administration. The Human Resources Outsourcing industry has continued to grow in recent years, despite the global recession.

Human Resources Outsourcing can take on many appearances, from complete end-to-end processes, to specific, discreet functions. But in the end, they all share the same principle: by entrusting non-core, non-revenue generating tasks to an outside expert or firm, the business can comfortably focus on other critical areas, assured their human resources systems will be managed professionally and efficiently.

**Just Released** – 7 Client Success Stories

Over the past 3 decades, CPEhr has successfully helped small employers throughout the state of California, and across the nation, manage their employee administration more efficiently, and cost effectively. We encourage you to read seven real-life stories of businesses that were ready to think out-of-the-box and utilize HR Outsourcing in their company.

Download your free copy of:

“HR Outsoucing: 7 Business Success Stories“

During her tenure with CPEhr, Soley Van Lokeren has served as a member of the executive management team and worked to develop strategic business relationships and projects for the company.  She also served as the organization’s vice-president of business development, including the management of the sales, marketing and implementation.

As Executive Director of Business Operations, Soley will be responsible for the strategic oversight and management of the day-to-day payroll operations.  CPEhr currently processes more than 30,000 paychecks per month.  She will focus on client relations, improving the efficiencies of CPE hr’s internal and external processes, overseeing system improvements, procedural documentation, and training.  Her approach is that of a mentor; she embraces an open door policy and is focused on a high standard of customer service for CPE hr’s internal and external clients. Soley will be reporting directly to the President, Ms. Faith Branvold.

Ms. Van Lokeren states:

“I am very excited to work with a team of payroll professionals that are well trained and focused on excellent customer service.  “The Payroll Department is the heaviest process-driven function within our HR services and there are many opportunities to streamline our processes for both our firm and our clients.  I hope to identify these processes, improve operations, and roll-out a ‘Green Initiative’ that will offer a better and more environmentally friendly service to clients and their employees.”

Soley has over 20 years of human resources experience. Prior to joining CPEhr, she was the owner/operator of S & W Country Diner, a successful restaurant in Southern California and was the CEO of Enterprise Patrol, Inc., a private security firm which employed 120 people in the Southern California market.  Van Lokeren holds a master’s degree in Business Administration and a bachelor’s of science in Business Administration with an emphasis in Human Resources from California State University, Northridge.

“We were seeking a unique way to express our appreciation to our clients,” said Faith Branvold, president of CPEhr. “We’re very fortunate to have their support, and we are constantly thinking of ways to thank them for their business.”

Recipients include:

• ABC Recovery Center
• Asian American Drug Abuse Program
• City of Refuge Ministries
• Etta Israel Center
• Hadassah Southern California
• Homes for Life Foundation
• LINC Housing
• Project New Hope
• Step Up On Second
• The Promises Foundation
• United Cerebral Palsy Los Angeles
• Viewpoints Research Institute
• Westside Children’s Center

All of CPEhr’s for-profit clients received a holiday card featuring a list of the non-profit clients that received donations.

“Every year CPEhr and its employees are involved in charitable causes,” explained Branvold. “During the holiday season we allocate some of this charity with our own non-profits, and share the list with our other clients. This helps them learn about, and support, the non-profit organizations with which we have the pleasure of working.”

Employees working for Los Angeles organizations were surveyed anonymously early this spring by the LA Business Journal to measure their overall satisfaction with their work place. Key criterion used to determine the ranking related to leadership, corporate culture, work environment, training, development, communications, planning, pay and benefits.

Faith Branvold, CPEhr’s president, said,

“It is a tremendous honor to have been recognized by the Los Angeles Business Journal. It is our team of skilled professionals that makes CPEhr a great place to work.”

CPEhr offers a wide range of benefits and programs to its employees that promote a positive and productive work environment. These programs are also offered to the organizations to which CPEhr provides Human Resources services. Employees enjoy activities such as the CPEhr Olympics, corporate softball, weekly yoga classes, and monthly employee recognition and birthday celebrations.

Branvold continued,

“For nearly 30 years, we have worked hard to shape our company’s culture to a family environment. We believe that dedicated, happy employees will ensure employee retention while providing the best service possible to our clients,” said Branvold. “It has always been our philosophy that a strong team is based on respect, recognition, positive reinforcement and teamwork.”

If you would like to learn more about Human Resources Consulting, HR Outsourcing, or Professional Employer Organizations, please click the links above, or call us to speak with a Senior HR Business Consultant.

Expanding FLSA Over the Years

Over the years, FLSA has been expanded to include other areas of employee protections, such as restrictions on employing children, and employee documentation and recordkeeping. In recent months, the US Department of Labor released an “Administrative Interpretation” (AI) to clarify the definition of “clothes” under the FLSA.

The Definition of “Clothing”

Currently, the FLSA excludes time spent “changing clothes or washing” at the start or end of a workday from compensable time, and the vague exemption has led to many lawsuits and conflicting court decisions on what constitutes ‘clothes.’ The AI provides clarity by stating that the time spent changing into or out of protective gear or equipment required by law, the employer, or the nature of the job, is indeed compensable.

The AI further clarifies that even if ‘changing clothes’ does not fall under a compensable activity or time, it may still trigger the ‘continuous workday rule’ if the subsequent activities after changing clothes would be compensable under FLSA, activities such as walking, waiting, or other travel time. Employers should review their compensation policies or practices to reflect this change to remain compliant with the law.

The guidelines covered by the FLSA can be confusing, and costly, if not adhered to. Speak with a CPEhr HR Consultant for an audit of your FLSA practices.

Source:  EPLI Pro News, July 2010