Teams Blog

After all the U.S. media focus on schoolyard bullies in recent years, I’m glad to see a growing awareness of what those playground pugilists may grow up to be: abusive bosses. Prof. David Yamada and a growing chorus of researchers are out to change that by making workplace emotional abuse illegal in the Unites States. Among a host of other good reasons, Yamada wants to save lives.

He is a law professor at Suffolk Univ. in Boston and director of The New Workplace Institute. According to a version of his proposed law introduced in the Massachusetts State Senate last year, “Between 37 and 59 percent of employees directly experience health-endangering workplace bullying, abuse, and harassment, and this mistreatment is approximately four times more prevalent than sexual harassment alone.” Posts on his blog, Minding the Workplace, report on two suicides apparently resulting from this kind of abuse. One describes the recent death of an academic journal editor after alleged bullying by his boss, detailed by The Hook, a weekly newspaper.

Versions of Yamada’s bill have been introduced in 15 states and passed by two senates. Though that’s as far as they have gotten, I think it’s likely the United States will eventually catch up to countries like France and Sweden that have national laws against workplace bullies.

Yamada described the law in a speech at the Univ. of Augsburg back in April. The law would make it illegal for an employer to “subject an employee to an abusive work environment” with conduct such as “derogatory remarks, insults, and epithets; verbal or physical conduct of a threatening, intimidating, or humiliating nature; the sabotage or undermining of an employee’s work performance; or attempts to exploit an employee’s known psychological or physical vulnerability.” To break the law, the bully must have intended “to cause pain, injury, or distress” and have caused mental or physical damage. Though aimed at repeated abuse, it says a single very bad example could be enough.

If this language sounds vaguely familiar, that’s because much of it is taken directly from sexual harassment laws. Because of those you may think bullying is already illegal, but Yamada makes the case that existing laws do not cover general abuse. For example, if the insults mentioned above related to your gender or religion, they might break anti-discrimination laws. Otherwise, almost anything goes legally.

Managers should note that as with discrimination laws, not only the abuser but also his or her employer could be sued if this law passed in your state. A court could order an employer to take a number of actions including firing the bully, and paying back pay to a victim who quits because of the abuse. Employers would have some protections, again modeled on sexual harassment law. If the employer tried to fix the problem, or had a system to address it that the victim did not use, that would be a valid defense. Damages for emotional distress would be limited to $25,000, and punitive damages would not be allowed. The law also would include defenses to protect the employer from false claims, for example from a worker fired for other, valid reasons.

I suspect some readers will come up with reasonable objections along the lines of employer rights and the idea that the victim could just quit. I understand the thinking, but recognize the exact same arguments were made against sexual harassment laws 20 years ago and racial discrimination laws 50 years ago.

How sad that we have to even consider resorting to laws to make some managers play nice. I recall sitting stunned in a Seattle Chamber of Commerce committee meeting some years ago after the head of a builder’s association argued against better workplace safety rules because “nobody wants their people to get hurt.” His argument was logical, based not only on moral grounds but financial ones. I was stunned because there is massive evidence that wanting to save money in the short term regularly stops employers from investing in long-term savings through problem prevention. As evidence I present recent mining disasters, BP’s little problem in the Gulf of Mexico, and thousands of other citations in the public record. Please forgive this blatant plug, but my teamwork training and coaching services could save almost every business team in the United States many times more money than my services cost, yet I have room for more clients.

If you are a manager and know of someone causing strife on your staff, you already have a host of reasons to confront the behavior. Yamada writes, “there is strong consensus that bullying and related behaviors can be very costly for employers. These factors include:

• “Reduced productivity
• “Reduced employee loyalty
• “Increased absenteeism and related costs of medical premiums, workers’ compensation, and disability payments
• “Increase attrition and related costs of hiring and training
• “Greater risk of employee lawsuits, even in the absence of specific legal protections…”

The day is probably coming when ignoring the problem becomes yet another way to beg for a lawsuit. More importantly, any ethics book will tell you ignoring it is wrong, especially when suicide is a possible outcome.

Are you the type of person who gets people upset but believes “in telling the truth straight out, and if they can’t handle it, that’s their problem?” Or who enjoys insult humor and practical jokes at work? Or curses a lot more than your co-workers do? As with sexual harassment, it doesn’t matter whether you think your behavior is abusive. What matters is whether the other person does. Start looking inside yourself now, because you don’t want a judge doing it for you later.

Action Item: If you’re not sure whether you or someone you manage is abusive, or what to do about it, drop me a line or give me a call: 1-919-414-8939.

Sources: The following sources (and more) are all available free on “David Yamada’s ‘Papers’” page:

• “Crafting an American Legal Response to Workplace Bullying: The Healthy Workplace Bill”
• “Is There a ‘Business Case’ for Workplace Bullying Legislation?”
• “Massachusetts Senate Bill No. 699″ (2009-10 Session)
• “Workplace Bullying and American Employment Law: A Ten-Year Progress
  Report and Assessment”

I just finished reading a horror story, made all the worse because it is a true story involving failure to protect nuclear weapons secrets, lost management—and indirectly, me.

The story is told in a new book, Implosion at Los Alamos: How Crime, Corruption and Cover-Ups Jeopardize America’s Nuclear Weapons Secrets, by Glenn Walp, Ph.D. Walp’s credentials are impeccable: former head of the Pennsylvania State Police, a master’s in criminal psychology and doctorate in human services, national police awards, and national media appearances. The latter were mostly about one other job he held: Office Leader of the Office of Security Inquiries at Los Alamos National Laboratory, the home of the atomic bomb. Walp did not hold the job long. He did it too well.

The Lab hired him as part of an agreement with the U.S. Department of Energy, which oversees it, to professionalize the Lab’s criminal investigations. Almost immediately upon arriving, he began to uncover massive problems. Walp details how employees’ refusal to follow equipment management procedures left many items missing and untraceable, including computer equipment that might have held nuclear secrets. A mini-Mafia ran free at one facility, buying spy equipment with federal money and protected by a thug who threatened potential whistleblowers with violence. Walp describes rampant abuses of a system that allowed any Lab employee to purchase items at various stores by showing a Lab badge. From another source, I know that one year, more Leatherman tools were bought than there were employees at the Lab. Walp criticizes an internal delivery system that dropped off packages, including high-cost equipment, in open areas without anyone signing for them. He points out numerous lapses regarding both nuclear weapons information and “special nuclear materials,” raising the very real specter of terrorists getting at least enough of the latter to create a “dirty bomb”—a regular bomb that would irradiate people it didn’t kill outright.

The most shocking discovery was that upper managers had known about these problems for years. Furthermore, when Walp tried to do his job, those same managers began interfering with his investigations. When he tried to call in the FBI, he almost immediately received pushback from above. Eventually the chief lawyer at the Lab inserted himself between Walp and the FBI, to the point that Walp warned him of violating “obstruction of justice” laws. Every incident of missing computer memory devices brought the standard Lab refrain that no classified material was compromised, even though there was no way to be sure. The constant message was that Walp’s first loyalty must be to the Lab and the University of California, which had managed the Lab from the start, in 1943. Protecting the UC contract clearly was more important to top managers than protecting U.S. property or nuclear secrets. Walp and others had to resort to DOE’s formal whistleblower process. Despite the extra protections this gave them and outstanding written performance appraisals, Walp and an associate were fired because they “did not fit” with the Lab’s culture. They were quickly escorted off the property by armed guards. The “Mafia” don and his thug had only been placed on administrative leave initially (though they eventually went to prison).

All of this has been corroborated, by DOE and FBI investigators, many journalists, public interest groups, and the U.S. Congress. As a result, two Lab directors in a row and some managers were fired. Walp was rehired as a UC consultant and won a $1 million settlement for his firing, clearly retaliation for his whistleblowing.

I wish I could report things are much better, but they are not. The Lab was forced to team with defense contractor Bechtel and compete for the contract for the first time in 2005. Unbelievably, they won. No surprise, then, that Walp lays out yet more problems and continuing Lab denials through 2009.

One exchange in the book leapt out at me. Walp is talking to his boss. “Glenn, have you ever worked for a corporation before?, Falcon responded. It’s much different working for a corporation than it is for a government or for a governor, continued Falcon. The lab has a certain corporate philosophy and certain corporate rules that the employee must abide by…” Walp himself misses the massive problem with this statement. Los Alamos Lab is not a corporation! It is a federally owned facility managed at the time by a state government entity. This is the most egregious example of management denial I have ever read.

I was relieved the see, however, that Walp did not criticize the Lab’s written procedures for managing equipment (called “personal property”), but the failure to follow them. “Relieved” because, I wrote them.

The lab hired me as a contractor in 1994 to rewrite their equipment management manual. (I had my best-ever boss, Peggy Durbin, who sent me Implosion after I saw it in the world’s funniest business newsletter. She writes it for the bookstore in Los Alamos she co-owns now. You should sign up.) Realizing instantly the manual was an antiquated mess, I started over from scratch. When it became clear the only way to do this quickly was to get four groups of stakeholders working more efficiently, I requested permission to create self-directed work teams (SDWTs). It worked. Within a few months, we had a 350-page draft. In two years, these dedicated people had raised the property management system’s rating by outside auditors from failing to “Outstanding.” Four of the people I served are named, favorably, in Walp’s book.

However, I saw the rampant cultural problems he mentions, especially after I became a manager. My introduction of “management by walking around” was taken by many employees as micro-managing because they weren’t accustomed to any oversight. Most people in our group were treasures, but a significant number would have been fired by private industry years earlier. Upper managers gave little material support to best practices, clearly more interested in smooth sailing. The property SDWTs lost their empowerment. I heard the refrain about protecting the UC contract often. After three years in management I had enough, and I started TeamTrainers.

This post has been painful. I still love the Lab, both for many of the people and for much of the work it does. Walp praises the Lab’s science, which helps prevent the spread of nuclear materials, ensures U.S. weapons still serve as a deterrent, and has led research in a surprising array of topics from computer modeling to alternative energy sources to quantum physics.

I want to call the leaders in the book “blind,” but that would be an insult to blind people. “Lost managers” is a better term. They lost sight of who they really worked for. They lost sight of the real source of damage to the Lab, greater than PR problems. Some of them lost their jobs over it. If you as a manager make any effort to squelch reports of ethical violations, policy violations, and especially legal violations, you may be a lost manager. Let this book help you find your way, lest you destroy what you are trying to protect—even if it’s only your own backside.

Source: Walp, G. (2010) Implosion at Los Alamos: How Crime, Corruption and Cover-Ups Jeopardize America’s Nuclear Weapons Secrets. Justice Publishing, LLC: Gold Canyon, Ariz. (received from Otowi Station Bookstore).

I once shocked a manager by telling her I thought she had rated me too highly in an annual performance review. I don’t recall the details anymore, just the stunned look on her face. Some mistake I had made during the year, though I had identified and corrected it at the time, made me feel that my colleagues had done a better job on one measure. Almost everybody got a 3 on almost everything, so a 3 seemed unfair. When I self-rated, I gave myself a 2. I ended up with a 3 anyway.

My apologies if this comes across as self-aggrandizing, but it illustrates a point: The most common complaints I have heard over the years about appraisals boil down to, “It’s not fair!” Many teamwork scientists and management gurus agree. John Hunter of Curious Cat Management Improvement Blog reports J. Edwards Deming “emphasized that forced rankings and other merit ratings that breed internal competition are bad management because they undermine motivation and breed contempt for management among people who, at least at first, were doing good work.” I’ve said for years that performance appraisals are legal protection for bad managers, a waste of time for the majority. If you set measurable standards for your employees, communicate monthly on the results, and praise and correct at every opportunity, an annual review tells the employee nothing new. If you don’t do those things, the review refocuses their effort way too late—perhaps 12 months too late. Though I offer recommendations in The SuddenTeams™ Program for harnessing appraisals to support team performance, that’s because appraisals are so prevalent, not because I like them.

Words like “fair” always cover a litany of traits, so I was intrigued when I came across a journal article defining the term, in effect. Two business professors, Richard Posthuma of the Univ. of Texas at El Paso and Michael Campion of Purdue Univ. started with a list of 1,000 possible sources and whittled it down to find 18 articles in peer-reviewed journals. From those they compiled a list of 20 best practices for performance reviews (PRs) that employees will consider fair. See the study summary for the complete list, but let’s discuss the ones most directly related to teams.

To ensure the team is focusing its efforts on the priorities of your company (or “nonprofit” or “agency”), I recommend having measurable standards that follow directly from measurable company goals. Some should be individual goals, and each team member should also have the team goals on his or her appraisal. Three of the best practices Posthuma and Campion found relate:

• “The PR should be based on observable job behaviors to the extent possible.”
• “Objective performance data should be considered to the extent possible.”
• “The PR should be aligned with organizational goals and objectives.”

They note in relation to another practice that at the start of the period covered by a review, “employees should have a good idea of what will be expected of them.” As an example of all of these, say a nonprofit helping ex-criminals break the crime cycle has a goal for the year to “Increase case closings by 20%.” The job placement team thus might create a goal of “Increase client placements by 20%,” and it follows that a placement counselor could have, “Place 20% more of my clients.”

You can make your whole HR process more efficient by having every employee draft their own job descriptions and negotiate them into final form with their supervisors. The method also lets you identify gaps between what managers expect and what people think the managers expect. Then use those descriptions as the basis for job ads, interviews, hiring decisions, reviews, and performance improvement plans if needed (to try to correct poor performance before firing someone). This alignment also reduces your odds of legal liability, according to employment law and HR experts. Posthuma and Campion list:

• “The content of the PR should be based on a job analysis or shown to be job related.”
• “Subject matter experts should have input on the factors to be evaluated in the PR.” They add that the best SMEs are people who are doing or have done the jobs.

I am, as regular readers know, a big advocate of employee empowerment. It is the most powerful method of improving a host of measures related to cost-effectiveness, worker and client satisfaction, etc. The professors say a best practice consistently shown to raise employee satisfaction is, “Employee participation should be allowed… in the PR process (e.g., setting goals, providing input on performance).”

Regular readers have also heard me say over and over that you cannot promote people into management without training them on how to lead people and yet expect them to succeed. Several of the appraisal best practices relate to training managers and employees on the process, and the former on how to provide feedback in a legal and respectful way. Most of us hate to give negative feedback, which is why I include that in my effective communication skills class.

If you want performance appraisals to matter to employees, then their appraisal of your appraisals has to matter. This study suggests there is a right way to review, and the professors say following it “should increase the acceptability of the information employees receive during their reviews, reduce the likelihood of complaints, and increase motivation…” If you’re a manager, that should increase your motivation to take the action below and use these “fair” practices.

Action Item: Print off the employee review process best practices and go through the list with your team. Ask members whether they think your process follows the practices, voting “yes” or “no” on each. On any in which many say “no,” work with the team to raise concerns with the “powers that be” in your organization. If you are the power that be, call me to talk about how to make things right: 919-414-8939.

In another example of people relearning a well-established truth the hard way, plaintiffs in a U.S. Supreme Court case this week found out they could not use their work pagers for “sexting.” More to the point of this blog, I hope their managers learned a similar message: don’t tell people they have rights they don’t actually have.

To both sides I say, “Duh.”

As chronicled in the court’s opinion,  two police officers in Ontario, Calif., were going way over their monthly character limits for the alphanumeric pagers they had been issued by their department. The police chief requested transcripts of their messages to determine whether he needed to pay for higher limits or people were overloading them with personal messages. It turned out their on-duty messages were mostly personal, and many were sexual. After an investigation by the internal affairs office, the officers were disciplined. The Associated Press article on the case notes, “a police official… informally told officers that no one would audit their text messages if the officers personally paid for charges above a monthly allowance.” However, that was wrong. The city had a written policy to the contrary, and that trumped whatever that person said.

Granted, the policy did not specifically mention pager text messages. But trying to play that technicality reminds me of a TV show I saw this week, in which the father told the teen-age son to take his dirty dishes “to the kitchen.” The son dropped them off on the floor just inside the doorway, and when confronted, argued the father had not said to put them in the dishwasher.

Notice that because the plaintiffs were employed by a government, they could bring the Constitution into their argument. Although many employees seem to think otherwise, by itself the Constitution does not limit the rights of private companies. For example, a worker who claims they have a “right to free speech” about their company is simply wrong. That “right” prevents a government from censoring you (in most cases), but does not apply to a private entity unless Congress has created a law saying you have a right. Whistleblower rights–legal protections for people who report lawbreaking by their employers–exist because of federal law. (Usual disclaimer: I ain’t a lawyer, this is not legal advice, contact a lawyer for specifics).

Since my first exposure to this topic in a grad school Media Law course, I have seen case after case where employees were fired for doing personal stuff on computers, including moral and perfectly legal activities like side-business work.  There are exceptions, but generally speaking, since the office computer and telephone are owned by the company, the company can do whatever it wants with them. That usually includes watching or listening to what you are doing.

That said, I’ve also seen cases where the decision hinged on whether the company had a specific policy and enforced it consistently. My guess would be that if a company president was seen using his office computer to play online poker, and the company did not have an employee handbook saying otherwise, the courts might back someone who was fired for lawful personal use of their company computer. In “employment-at-will” states, where employers can fire someone for any reason not specified as against the law, even that argument might be hard to make. Nonetheless, not only are formal policies smart from the legal standpoint, they also are the ethical thing to do, giving people fair warning about how you define right-and-wrong.  Most of us think what we consider right should be obvious to everyone else, but you know that isn’t the way human beings work.

For employees, the AP article says, it is a “common-sense message”: “Use your own cell phone if you’ve got something to text that you don’t want your boss to read.” I would add a common-sense message to employers, which is to have a written policy on personal use you reinforce regularly. Since the City of Ontario did that, another common-sense message goes out to supervisors, which is, don’t interpret company policies on your own. If you aren’t absolutely sure how a policy impacts an employee question, go ask whoever is responsible for the policy.

Unfortunately, as I’ve long said, I prefer to call this kind of thinking “horse sense.” There seem to be more horses than there are people who have that sense, so it isn’t all that common.

If you would like to have a hard-working, loyal team member, consider hiring an ex-criminal. At the very least, it may keep you out of trouble.

No, I’m not joking on either count. We’ll start with the latter. An article published this week by the Society for Human Resource Management (SHRM) states that "pre-hire testing and background screening of applicants’ credit reports and criminal histories have come under increased scrutiny…" Recent U.S. Equal Employment Opportunity Commission (EEOC) hearings and its first lawsuit against these practices are evidence.

The EEOC asserts in its lawsuit that the plaintiff company used credit histories and criminal background checks to unlawfully "deprive a class of black, Hispanic and male job applicants of equal employment opportunities and otherwise adversely affect their status as applicants because of their race, national origin and sex."

A "policy guidance" page on the EEOC’s Web site explains, "the use of arrest records as an absolute bar to employment has a disparate impact on some protected groups, (so) such records alone cannot be used to routinely exclude persons from employment." Only if the crime is "job-related and relatively recent" can a blanket ban be justified.

If you are hiring an accountant, an embezzlement conviction is probable a valid reason not to hire them. A conviction for a bar fight probably is not, nor is an embezzlement conviction for someone who will have no access to money. (Usual disclaimers: I ain’t a lawyer, contact yours for legal advice, just reporting what I’ve been told.)

The logic is, since minorities and males are more likely to commit crimes, criminal history can be used as a dirty trick to discriminate against otherwise qualified candidates. Don’t want to hire a male into your all-female office, but a male is the most qualified candidate? Check his criminal history, and refuse to hire him regardless of what the crime was or what he has done to make up for it. Since males commit more crimes than females, the odds favor your bias. But the EEOC does not.

What about increased risk to your company or workforce, both valid concerns? Two relevant statistics are bizarre in their similarity given that experts in different fields presented them. In the ethics presentation I blogged about last month, Jacob Blass reported that 93% of ethical violations are committed by people with no prior record. On Feb. 2, a column in the Raleigh News & Observer by a social work professor stated that 96% of sexual crimes are committed by first-timers. As someone said from the audience at the Blass talk, you are only increasing your risk by 7% (or less) when you hire an ex-offender.

Furthermore, Blass said, ex-offenders often are excellent workers because they are so grateful for the second chance. Logic indicates an ex-offender knows he or she is being watched and thus is likely to toe the line even more carefully than workers who feel more secure about their career options. A “blanket ban” on ex-criminals may well harm your company by cutting out the best possible hire without reducing your overall risk. If you consider yourself an ethical or religious person, you have plenty of other reasons to respect each individual on a case-by-case basis.

Do make the person explain their crime, when it was, what the circumstances were, and what the person has done to make up for it. Listen to the words they use, to see if they accept responsibility. Make sure the explanation matches the background check results. Consider how long ago it was, and how similar the situation was to anything they will face in your workplace. Then use your best judgment, lest even in these times of worker surplus, you miss out on hiring the best team member for the job.

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Two studies on lawsuits against businesses caught my eye recently. For one, business researchers used public records to determine how many lawsuits were filed against companies before and after mergers through acquisition, and how many of those suits got to the point of a court making a judgment that the firm did something wrong (not related to the merger). They looked at 576 U.S. firms acquired in 1987, including public and private firms and both foreign and U.S. buyers. With the help of law students, they categorized and counted judgments that found the company liable in six categories: “personal injury, product liability, other torts, labor disputes, environmental violations, and contract disputes.” On average, the number of negative judgments jumped 50% over pre-acquisition levels. The result did not appear to be offset by any decrease in judgments against the acquiring firm (published in Organization Science, Vol. 20, No. 1, p. 206). M&A candidates, be advised.

Then a newsletter from the Society for Human Resources hit my Inbox with a report on the annual Workplace Class Action Litigation Report from law firm Seyfarth Shaw LLP, based in Chicago. It concluded that “workplace class actions filed against employers and the monetary risk they pose to companies has increased exponentially over the past six years,” according to the article in HR Week (Jan. 19, 2010). The report was based on class- and collective-action filings in federal and state courts in 2009.

Not surprisingly given the recession, unpaid wages and 401(k) losses were significant contributors. Wage-and-hour litigation topped all workplace class actions. However, the article says, “As layoffs increased, displaced workers also filed more age discrimination and Worker Adjustment and Retraining Notification lawsuits.” Meanwhile, the U.S. Equal Employment Opportunity Commission (EEOC) stepped up its actions “and secured $294.1 million in settlements for allegedly injured victims of job bias.” Both the EEOC and Department of Labor have added significant staff, the report says, so the firm sees more coming.

Each of these studies indicate companies were not paying attention to warning signs raised by employees, especially during stressful events like mergers and force reductions. It’s one thing to dismiss one person as having “attitude problems” instead of really trying to understand them. But to ignore so many people that they file, and win, a class-action lawsuit indicates an enterprise-wide “hear no evil” problem. Many wage-and-hour suits are brought after repeated complaints by multiple employees. Even product liability cases often result after people inside the company raised red flags and were ignored by upper managers.

I asked Ralph DiLeone, managing partner at The DiLeone Law Group in Raleigh, NC, for his thoughts. ”Planning for these events and paying attention to warning signs is critical. We recommend our clients hold an annual meeting with us and a few other of their trusted professionals… when we discuss any employee situations, questions and issues,” he wrote. He added two warnings: “Don’t just rely on ‘my neighbor said’ on these issues. Don’t wait, as the consequences can be dire!”

Where’s there’s smoke, there’s fire. If you hear similar complaints from more than one employee, listen. If you don’t hear any complaints from any employee, arrange for an anonymous job satisfaction survey to make sure. And these studies indicate that in either case, if you’re a business owner, you better add a reputable lawyer like Ralph to your business team.

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