Archive | February 2014

Workplace Q&A: Part 12

Q: Can I be switched from a salary to an hourly wage?

“For the past two years, I have been paid a salary. My job has not changed at all. Yet last week my manager told me that I would be paid an hourly wage from now on. The good news, he said, is that I would now be eligible for overtime. But I did the math. My new hourly wage multiplied by 40 will be less than my old weekly salary. Can the company do this?”

A: Yes.

But there may be more to the story. You need to find out why the company is making the change. Quite possibly the company was informed that you are a “non-exempt employee,” as defined by the Fair Labor Standards Act. If so, then you should have been paid an hourly wage plus overtime for all hours worked over 40 each week. If you in fact worked more than 40 hours in any workweek, then the company owes you back wages. You can review your records, make a determination of the shortfall and approach Human Resources with a request for back pay. If you’re the only employee in this situation and the company simply made an honest error, you might indeed get the additional pay. But if you’re one of many, don’t count on it. Paying you what you’re due will set the company up for paying your co-workers, too. In that case, you’ll have to decide whether it’s worth complaining to the Department of Labor or just dropping the matter altogether.

Q: Do I have a right to find out why my wife was terminated?

“My wife was fired form her job last month. She wasn’t given a clear explanation of the reason for the termination. I tried to call her manager, but I was told the manager would not speak to me. Do I have any rights to get the information?”

A: No.

However, you can help your wife craft a letter to her manager or the head of the company asking for more information. You can also help her request her personnel records. If she hasn’t signed a release, you can help her file a complaint with the state anti-discrimination agency. In responding to such a complaint, the company would be required to give a written explanation as to why your wife was terminated.

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Q: Can I bring a lawyer when HR grills me?

“A few weeks ago, I was called down to Human Resources and questioned about an apparent theft of proprietary software. I asked the HR rep if I could have a lawyer, but I was told no. Can I have a lawyer?”

A: No.

It is legal to refuse to allow you to have legal representation. But it still may be unfair and unwise.

Employees are obligated to answer questions about workplace events. There is no law that requires the employer to let them to have a lawyer during questioning about such events.

However, when an investigation involves potential criminal activity or serious misconduct, it is nonetheless fair and appropriate to allow an employee to have an attorney present during an interview. The attorney can be instructed to remain silent so that the company’s representatives can hear directly from the employee. Still, the attorney would be in a position to advise the employee before and after the interview.

Copyright © 2013–2014 Johanna Harris

Disclaimer: This blog is for informational purposes only. It is not intended to be a substitute for legal advice and does not create an attorney-client relationship. This post contains numerous questions describing common recurring problems in the workplace. The circumstances described in these questions, including the names of characters and business firms, are fictitious.

About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback), is intended to help you learn enough about labor law and personnel practices so that you don’t get derailed from the career track you should be on.

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Workplace Q&A: Part 11

Q: I just got a final written warning. What should I do?

“I was just given a final written warning. I was told that my manager received customer complaints about my service. What should I do?”

A: Here are the steps you should take.

You won’t be able to solve the problem unless you know exactly what the problem is. First, you should ask for copies of the customer complaints if you don’t already have them. You will then need to go over each complaint, identifying the precise source of each customer concern and formulating a plan to address that concern. You should advise your manager of any customer concerns that are beyond your control.

Make sure you know how much time you have to remedy each problem that you’ve identified. If the warning doesn’t provide a timetable, then work with your manager to set a deadline for each problem that needs to be resolved. During this time period, you should have regular, brief check-ins with your manager – either orally or in writing – to make sure you are on the right track.

Q: Can my manager favor an attractive female co-worker?

“I’m part of a five-person team. We all work for one manager. The manager overtly favors one team member – a young, attractive woman. From the start, he gave her the best projects with the most learning opportunities and the highest visibility. I just found out that her annual bonus was more than double that of any other team member. Can my manager do this?”

A: No.

Under the federal government’s sexual harassment guidelines, a manager cannot disadvantage other team members in order to favor a more attractive female employee. The problem is that your manager will claim that his favorite employee is in fact more competent and deserves the additional compensation. After all, he’ll claim, she got the better assignments.

I suggest that you approach your manager about establishing more transparency in work assignments. If you can’t get your manager to divide the work fairly, you may have to ask someone higher up to oversee project assignments. Once the work is assigned in a more equitable and transparent manner, it will be easier to show that the disparity in bonuses is unfair.

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Q: Can my manager make me see the Employee Assistance Program counselor?

“Three months ago, my sister died after a long and painful illness. Just recently, my father died suddenly from a heart attack. When my manager found out, he told me that I had to go see the Employee Assistance Program counselor. Can he make me do this?”

A: No.

Employment Assistance Program (EAP) counseling is voluntary. It is a resource to help employees, but seeing an EAP counselor cannot be a condition of keeping your job.

Perhaps your manager has noticed some problems with your job performance and is concerned that further deterioration may put your job at risk. You should definitely have a conversation with him to make sure he doesn’t perceive that you have any performance issues. If he does, you should come up with a solution that is independent of EAP counseling.

Perhaps your manager cannot believe that anyone who has suffered two major losses in such a short time could still be able to perform well on the job. Again, it would entirely appropriate to have a conversation with your manger to assure him that, while times are difficult, you’re still able and willing to do your work.

Copyright © 2013–2014 Johanna Harris

Disclaimer: This blog is for informational purposes only. It is not intended to be a substitute for legal advice and does not create an attorney-client relationship. This post contains numerous questions describing common recurring problems in the workplace. The circumstances described in these questions, including the names of characters and business firms, are fictitious.

About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback), is intended to help you learn enough about labor law and personnel practices so that you don’t get derailed from the career track you should be on.

What Can the Abbreviated Tenure of John Maeda Teach RISD about Hiring a New Leader

Most parents don’t lie awake at night praying that their children will grow up to be struggling artists. Dazzled by the wonders of a career in STEM, most high school seniors don’t see an art school as one of their top picks. For those reasons alone, leading an art college has to be among the world’s toughest jobs. In 2008, when the Rhode Island School of Design (RISD) hired John Maeda to be its new leader, the tanking economy and the underfunding of arts education made the job even more challenging.

When Maeda was chosen as the new president to succeed Roger Mandle (1993–2008), it appeared that the RISD Board of Trustees had found the perfect successor. Maeda had degrees in software engineering, design and business. He had an academic background. He was a prolific writer and designer. He seemed to have precisely the skills to transform RISD into a major player in the new age of technology. But in the end, although he appeared capable of all things, Maeda was unable to stay at RISD long enough to institutionalize his vision and see his plans to completion.

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My goal in this post is not to relive every skid and stumble of Maeda’s abruptly abbreviated five-year tenure, nor to divulge some new morsel of inside information – of which I have none. Perhaps Maeda faced unique problems above and beyond those that all university presidents must overcome. He certainly faced harsh criticism for his methods of high-tech communication, his cleaning house of over twenty administrators, his disregard for faculty input, his willingness to upend long-standing courses, programs and requirements, and his tin ear to the essence of RISD. Whether or not these criticisms were justified, they certainly prevented Maeda from being the change agent that he was hired to be.

Instead, I want to make a critical point:

What happened during John Maeda’s tenure presents a road map for how to hire the next leader at RISD.

If we’re going to look backward at all, we need to ask these questions: Back in 2008, did the RISD Board of Trustees determine if Maeda had the temperament, the patience and consensus-building skills to stay the course? Did the Board carefully the study the abundance of readily available writings that so clearly defined Maeda? Did the Board too easily overlook his lack of experience in the usual training grounds for college leaders? Did the Board buy into his tempting vision without looking too closely at how he meant to get to the Promised Land?

Let me put a few ideas on the table for the RISD Board to consider before it chooses its next president.

First, RISD should give itself a healthy amount of time to vet its next leader.

When a board is hiring at the highest level – whether it’s the CEO of a for-profit corporation or the president of a nonprofit organization –there is a natural tendency to look for a superstar. That makes a lot of sense. After all, it’s an important role.

But all to often, superstars have less visible inadequacies in key areas that are overshadowed by their public persona. In the end, the cost of a flawed leader can far exceed his notoriety value. Only careful vetting can ensure that any identified weaknesses can be compensated for – by hiring the appropriate senior staff, by redefining of the mission of the leader, or simply by announcing more realistic expectations. Vetting a prospective leader is not necessarily a job for a private investigator. In fact, it is rarely the case that a candidate’s less visible inadequacies are hidden from the public view. Quite often, these inadequacies can be identified and analyzed if the decision makers on the Board have the motivation to do so.

Second, when the RISD Board evaluates candidates to be the new leader, it should have a good idea of who will stay and who will leave.

It is not uncommon for a new leader to “clean house.” In fact, it is often a good thing for a university or for any organization. But there is a right and wrong way to go about it. Turnover is costly in terms of severance pay, morale, institutional knowledge and efficiency. Turnover should not be an end in itself, but a tool to effect strategic goals. People should be let go because there is a clearly articulated business need for someone different. It is frustrating when qualified people are let go because their views are inconsistent with the new goals of the organization, yet these so-called new goals remain unclear and the funds and compensation aren’t there to support them.

Third, the RISD Board must ensure that the next leader will be able to cultivate trust and communicate effectively to all interested parties.

Communication is key. But communication that is superficial or inauthentic is useless. Before the different parts of an organization can communicate real ideas and tolerate real criticism, there must be trust. If a leader is not trusted, and people don’t believe that their ideas will be received fairly without retaliation, then communication fails. Communication without trust not only fails to improve the organization, but it becomes a basis for polarization and inflexibility.

Fourth, the RISD Board must agree that there is an essence of the institution, a look and feel that will not change.

The culture of an organization is made up of lots of little things – customs, signs, traditions, the configuration of its spaces, titles, schedules and institutional stories and key figures.  Changing these little things is rarely worth the pain and bad feelings that it engenders. There are some areas where a leader is well advised to tread lightly.

Fifth, the new leader must have a vision that is consistent with the values of the organization, feasible to achieve and forward looking.

The vision must come first. It is the basis on which the goals and plans are based. The new leader must believe in the vision and be able to get all parts of the organization to buy into and cooperate with this vision.

The Road Ahead

Maeda’s five-year tenure appears to have been accompanied by many successes. The School is ranked highly. The student body is more diverse. Job placement seems high. Tuition is stable. Fundraising is rebounding. RISD is a strong voice in the global conversation about the role of art in innovation and economic progress. The task of RISD’s Board is to find someone who will not only build upon these successes, but also minimize future disruption and dissension.

Copyright © 2013–2014 Johanna Harris

About the Author: Johanna Harris has been on the board of directors of seven nonprofit organizations, most recently as Co-Chairman of Preserve Rhode Island, as well as in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book is USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback).

Workplace Q&A: Part 10

Q: Can I be fired because I’m against abortion?

“I am pro-life and opposed to abortion. I was just called into my manager’s office and summarily fired. I pointed out that I couldn’t be terminated for thoughts or feelings that had nothing to do with my job. My manager responded that this was not the reason for my termination. He said that I was fired because I was trying to convince others that abortion was wrong. Can I really be fired for that?”

A: It depends.

You have the right to think or feel whatever you want. But your fellow employees also have the right to work without being aggressively confronted with others’ viewpoints. They are, after all, captive audiences. So, it’s one thing if you happened to express your opinion in a conversation with your co-workers. But if they complained that you persistently harassed them with anti-abortion rants, then your employer could indeed terminate you.

Q: Can I bring my 11-year-old to work?

“I don’t have child care on those occasional days when my 11-year-old daughter’s school closes for teacher conferences or bad weather. On one of those days, I asked my manager if I could bring my daughter to work. I even offered to have her do some filing. My manager’s unequivocal response was, ‘No.’ Isn’t this overly strict?”

A: No.

Many employers don’t let children spend more than a very limited time in the workplace, and the reasons for such a restriction can be entirely legitimate. For example, they may fear accidents or are concerned about disruption of other workers. When it comes to your offer to have your daughter do some filing, you should be aware that there are strict limits on what an 11-year-old can do in the workplace. Perhaps there are many tasks that she could perform quite competently. But your company may not want to risk a legal citation for exploiting underage labor.

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Q: My co-worker just returned from 2 years of active military duty and was given a big raise. Is that fair?

“I am really upset. One of my co-workers just returned from two years of active military duty in Germany. My company immediately gave him a major promotion and a big raise. Is that really fair?”

A: Not only fair, but required by law.

Federal law mandates that an employee returning from military service must be placed in the job he would have had if he had remained with the company during the entire period of his military leave. He must also receive the level of pay and any pay raises that he would have received if he had stayed on the job.

Copyright © 2013–2014 Johanna Harris

Disclaimer: This blog is for informational purposes only. It is not intended to be a substitute for legal advice and does not create an attorney-client relationship. This post contains numerous questions describing common recurring problems in the workplace. The circumstances described in these questions, including the names of characters and business firms, are fictitious.

About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (i Book, Kindle, Amazon Paperback), is intended to help you learn enough about labor law and personnel practices so that you don’t get derailed from the career track you should be on.