NAVIGATING THROUGH TOUGH FMLA ISSUES

A whirlwind of changes has hit the Family Medical Leave Act (FMLA) and with changes comes new hassles and new understanding.  Below are some questions that many managers have asked me to navigate through the ever challenging FMLA.

What if I find out that an employee is working another job or has been interviewing or inquiring about other jobs while on leave?

There is no prohibition in the FMLA against employees having a second job.
In most cases, the only way to deal with the second job situation is to have a uniform policy regarding moonlighting or other work. Then the employee may be disciplined or discharged same as any other employee who violates the policy.

However, if you review the employee’s medical certification form and it says that the employee cannot perform the specific tasks he or she has been observed performing for the other employer, then the employee could be subject to termination for fraud.

What about other activities that are inconsistent with the FMLA leave restrictions?

The FMLA does not require employees who are on leave to lie in bed all day. Just because the employee has been seen at the mall or coaching a football team does not automatically sound the FMLA fraud alarm.
As mentioned above, if the activity is inconsistent with the medical restrictions there may be a fraud situation which you can handle according to your fraud prohibitions.

Finally, note that there is no prohibition under the FMLA on employees either looking for other work or having other jobs.   Furthermore, there is nothing wrong under most employers’ moonlighting policies with an employee looking for work or even applying for work with another organization. So be sure the employee has actually been hired and is working for the other employer before “pulling the trigger” under a “no-moonlighting” policy.   There may be a violation of an individual non-compete agreement if the employee applies for work at a particular competing employer during an FMLA leave.

What if we have a layoff while an employee is on FMLA leave?

As long as you can objectively show that employees who are on FMLA leave would have been included in the layoff if they had been at work at the time the reduction decisions were made, then you are entitled to consider and include those who are on FMLA leave in a reduction in force just as you would any other employee. In other words, being on FMLA leave does not entitle an employee to any preferential or “better” treatment than the employee would have received if he or she had not been on FMLA leave.

Make sure, however, that the employee who is on leave is not effectively penalized by your “objective” criteria for the layoff. For instance, if the criteria are based in whole or in part on “individual production levels” for the past 12 months,” you would need to pro rate or otherwise mitigate such criteria to make sure you do not automatically disfavor those who have been on FMLA leave.

Be sure to notify those on FMLA leave of their inclusion in the reduction at the same time that you notify all other employees in their comparative job group. In other words, do not wait until the employee returns from FMLA leave and then say, “Oh, we laid you off a month ago.”  Those on FMLA leave should also receive that same COBRA notice, severance package offers, etc., as similar employees who are being laid off from your active workforce.

What if the employee already was on a performance improvement plan, final warning, suspension, etc., at the time of going out on FMLA leave?

In these situations, you should extend the terms of the performance improvement plan or disciplinary action as if the leave had not occurred. For instance, if the employee was on a 90-day performance improvement plan when going out on leave, when the employee returns from leave you should continue the plan, having suspended it during the leave.

Similarly, if the employee was due to serve a 3-day suspension, have the employee serve the suspension as soon as he or she returns from leave just as if the leave had not intervened.

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Change Can Create Opportunities

Change permeates each aspect of life: change at home, change growing up, change in relationships, and of course, change in the workplace. Change is inevitable, and embracing, rather than resisting, change is the best way to seize the moment and create positive outcomes. When it comes to workplace change, we need to look for opportunity underlying the dynamic situation presented, and take the necessary steps to thrive in our evolving professional climate.

  • Acknowledge.  Being in denial is not conducive to success. People who recognize that change happens are more likely to be positive and honest about their situation, and will be better prepared and productive when contributing success to a changing environment.
  • Communicate.  In times of organizational change, open communication is key. Secrecy often leads to speculation, gossip, and complaints, which only fuel feelings of fear, anxiety and resistance. Leadership, employees, and all involved should have a clear understanding of long and short-term objectives and any shifting roles and responsibilities. Knowing the details is important in understanding how one is affected by the change, and how to move in a successful direction for the future.
  • Flexible. Maintaining a flexible position amidst a climate of change is imperative. Flexibility shows bosses and colleagues commitment, and the dynamic ability to adapt is an important asset for any working professional. The better one adapts, the better one fits in.
  • Pride.  The transitional nature of reorganization can cause complacency in the workplace. It is important to realize that work still needs to be done, and taking pride in productivity will not only improve self-respect and confidence, but will also impress any future boss that may step into the changing organization.
  • Maintain.  Maintaining an extensive network of friends and professionals is important in getting solid advice for the transition from individuals who have already experienced similar situations. Also, building and maintaining positive relationships is not only helpful for advice and support, but can serve as a direct channel for professional opportunities down the road.

Have you found opportunity in change?  Please share.

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Bad Attitude – Be Gone!

Like most organizations, there are a few people we must manage that just have really bad attitudes.  I know – it is tempting to just terminate these employees, but sometimes troublesome workers are good at what they do and as much as you hate to admit it to yourself, you do not want to lose.  So how should you deal with these “bad-attitude” employees?

I can honestly say when I coach managers their first approach is to brand “bad-attitude” employees with telling the employee – “Pal, you’ve got a baaad attitude and better change it fast.” I understand because it feels good to say this and what an emotional release. But it is the one thing us managers should never do. Remember these employees have probably heard that line from parents, teachers and bosses all their lives and as strange as this may sound – they are proud to wear the label. They think it says, “I’m the rebel, the defiant one who stands up and says what everyone else is thinking but no one else dare say.” 

It is my opinion and observation as managers that we cannot change an employee with a bad attitude because this is a deeply held belief that is ingrained in their personality. And in a perverse sort of way, it works for them. The problem is that it frustrating for us managers and does not align with the organization. So, as managers we need to confront ‘bad-attitude’ employees, not with a general assessment of the “us-vs.-them” attitude – which sounds permanent and may be unchangeable – but with direct feedback about specific unacceptable behaviors that we can frame as temporary and possibly changeable.

Here are some things you can do:

  • Make it clear that this is not personal. You represent the company. The behavior is hurting the company and that is why it is important to address
  • Tell them you want them to become a productive member of the team. And make it clear that 1) you cannot help if they do not change their behavior; and 2) it is their responsibility to do.
  • Stress the “temporary” and “changeable” nature the specific behavior (as opposed to the “permanent” nature of attitude). In other words, you are not asking the employee to change who they are. You are asking they to change what they do.
  • Ask the employee if they understand exactly what you’re telling them. End the meeting by making them recap their understanding of the issue.  Listening carefully to make sure they got the message, understand that the change is their responsibility, and realize that there will be consequences (i.e. discipline and/or termination) if they do not change their behavior.

When you use this approach, one of two things will happen:  The employee will bring their behavior in line with your expectations. Or you managers will quickly discover that the behavior will not change in which case they do not belong on your team. Either way, as managers you resolve the problem quickly and decisively. And in the end, that is good for you and the organization.

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The Do’s and Don’t of Talking to Top Executives

There are several challenges to getting the attention of top executives.  When you do, it is important to remember that this is your opportunity to impress and to present your case.  And a raw data dump usually will not work; nor will a long, number-filled report without an executive summary.  You need to know how to present arguments to CEOs and other C-suite people so as to maximize your chances of being heard.

In order to help you make the most of your talk with your top executives, consider these dos and don’ts:

Do:

  • Frame your message in terms of how it will reduce risk, improve the bottom line or affect the organization’s future.
  • Remember the CEO’s main interest is optimizing the business’s resources, and your proposal should show him/her how you can help meet that goal.
  • Speak the language of the CEO by using appropriate terms like ROI, operating profit, operating expenses, cash flow, and the like.  You know the great buzz words.

Don’t:

  • Get stuck in the present. The CEO is about big picture thinking and where the business will be in three months, six months, and five years. If you come in talking about the fire you are putting out today, you will risk appearing trivial.
  • Overload your message with detail. Yes, you have occasion where you must think about step-by-step processes. But do not bring that level of detail to the C-suite table. A top executive’s attitude: You are paid to take care of the nitty-gritty.
  • Beat around the bush. Talking to the CEO is like nothing you can imagine. This executive is juggling multiple priorities and must see immediate value in what you’re bringing to him/her. Otherwise, they will tune you out in the blink of an eye.

Remember it is your time to shine.  Do not blow it!  Do you agree or agree?  Any advice you would like to share?

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Simply Say “Thank You”

It’s something that is easy to let slide in this always on, just send an email world, but we should all remember the power of words and acts of thanks.  Today’s workplace relies on employee thinking, commitment and engagement for success; employees who are appreciated and regularly thanked for their contributions, consistently contribute more, out-perform others and are more loyal. Besides being the right thing to do personally, it’s also great for business.

Thanking employees is a critical component of successful management. Appreciation and celebration activate emotions. And, strong positive emotions have been proven to inspire loyalty.  Here are ways that you can thank and show appreciation to your employees throughout the year:

  • Take the time to talk to, and get to know, your employees. An impactful way to thank and celebrate your employees is to get to know them. Schedule time to understand your employees. Use what you now know about them to build a customized skills-improvement performance plan. Spend time with, and become interested in, each of your employees. The one-on-one attention you invest in is a significant way to appreciate all your employees’ talents and contributions.
  • Ask employees what they think. The best way to feel appreciated is to be included and to feel that their perspectives matter. In today’s workplace, we need input from all of our employees; managers alone do not have all the answers. Including employees in company issues, challenges, and opportunities empowers them, engages them, and connects them to something important.
  • Say thank you, and mean it. Most managers actually do thank employees who do great work. Employees work for more than money. They work for the praise and acknowledgement of their managers. A sincere thank you, said at the time of a specific event that warrants the applause, is one of the most effective ways to appreciate employees. Remember the phrase, “What gets rewarded, gets repeated.” Start to say “thank you” or “I appreciate what you do” when it is deserved and it will inspire the behaviors to continue. Make it personal and sincere. Catch employees doing great things and respond. It empowers them, appreciates them, and celebrates their performance.

Remember, people may not remember what you said or even what you did the last time they spoke to you or met you, but they will remember how you made them feel by saying thank you!  Do you agree?

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Managing Slackers

Every workplace has at least one slacker that causes enormous amounts of aggravation, stress, and lost productivity. In some workplaces, the slacker is even running the workplace, running off talent, or worse, damaging the business.  

If you have a slacker on your team, here are things you can try to increase his or her productivity:

  • Keep them busy: Most people tend to slack because they perceive there is just nothing to do – well we know that is not true. Since this is most likely not the case, giving them plenty of work is one way to keep them productive.
  • Make them accountability: Sometimes people slack because they believe there is no accountability and they know they can get away with murder (most likely they have been slacking for some time). For some jobs a time study may be appropriate, where they record the work that is done on an hourly basis each day. If you are knowledgeable about their job, you’ll know what’s bogus and what real work is and how long it would take to accomplish any given task.
  • Give deadlines: Once a task is assigned make it clear that you need the work completed by X or Y day and time.  Don’t allow any extensions unless the request is reasonable.
  • Keep an Eye on Them:  Place their desk/cubicle in a visible area.  Slackers tend to live in the shadows where they believe no one can see them doing nothing. In order to counter this, set up their workspace in a way that their computer screen is facing a heavy transited hallway or your own desk. Being able to watch what the screen is showing can be a powerful deterrent because the pressure of others seeing what they are doing may make them think twice about spending half of the work day on a golf site.

If all else fails, the only thing left may be for you to use disciplinary actions.  But the important key is to document their performance issues and give prompt corrective action. This is because sometimes rehabilitating a slacker can be an unachievable task and the only way to solve the problem is to have to terminate the employee. In order to do this, you’ll want to be well prepared in case they decide to fight the decision in court. Having comprehensive and complete documentation will help when you may get potentially sued. Keep notes of each time you notice a performance issue, increased absenteeism, have had to talk to the employee about not being productive or anything that could be used as evidence when the time comes.

Do you have suggestions for curtailing a slacker?  Do you agree or disagree?

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The Coaching Game

There is much written about coaching specifically how effective coaching benefits employees and in turn their employer.  If you ask any manager if they believe in coaching as a way to improve employee performance and behavior, the answer most likely uttered would be “yes.”  The more experienced, skillful managers will likely know how to go about it. These managers know that coaching can be an important tool used to manage subordinate performance and an effective method for “teaching” others effective performance skills.

But do you know what to do when employees refuse to participate in coaching or rather play games in an effort to get out of being coached?  I am not saying employees are devious by nature. But even when you as the manager approach a coaching session with constructive intent, some employees will feel they are being scolded, manipulated, or otherwise disrespected.  And the evasive actions begin.  Listed below are some common employee diversionary coaching tactics, along with suggestions for stopping them:

  1. Let the Accusations begin.  As a manager, it is not unheard of that we may have to coach an employee whose behavioral problems were reported by co-workers. And we have all seen the employee that is being coached begin to lash out at us: “Who said that about me? Somebody’s trying to get me in trouble and I have a right to know who”.  As managers, we know it does not matter who reported the behavior, as long as the reports are accurate.  Tactic:  Remember that as managers we have confidentiality on our side.  A good response can be: “I understand you wanting to know the source of this information. But I keep my discussions with others confidential, as I do my discussions with you. So let’s focus on the issue and not who said what.”
  2. Playing the Comparison Game.  Another common employee ploy is to point out others who supposedly have the same problem and sometimes they even make the other employee’s problem worse: “Employee Y has a higher error rate than me. Or Employee X does it too.  Are you talking to them too?”  Tactic:  A good way to get over this obstacle would be to say: “If there’s an issue with Employee X or Y, I’ll talk with them. But right now we need to stay focused on your error rate and what’s been causing it.”
  3. The Pre-emptive Strike.  Employees usually have a good idea what the coaching session is about, and try to pre-empt it by saying things such as “You don’t have to tell me. I already know what you’re going to say. I’ve made a few mistakes lately but I promise that’s going to stop.”  As the manager, you should not let that end the coaching session. There’s much more that needs to be said, and done.  Tactic:   Do not let the employee divert.  Acknowledge and agree and set your expectations such as:  “It’s great you realize there’s a problem, because that will make it easier to solve. But I need to make sure you’re very clear on my view of the situation and my expectations.”
  4. The Denial or Minimizing.  Even if employees know what they’ve done, be prepared for them to deny it hoping that you will back down: “It’s not true that I talk inappropriately.”  Or the employee may feel that the facts are too clear to deny and will try to minimize them: “Sure, I don’t follow standard procedures. But why does it matter? I always get the work done.”  Tactic:  A good response: “If you don’t talk inappropriately, we have no problem. But I’ve gotten some feedback that’s different, so we are here to talk about that.”  Also, “It is great that you get the work done but it is important to follow procedures because of x, y, and z.”
  5. Deflection:  The employee admits there’s a problem, but claims they are not to blame. “These issues we are talk about, I’m never the one who starts them. It’s usually Employee X or Y.”  Tactic:  A good tactic to stop this diversion is to remind the employee that you are less concerned about who started what and want to set expectations on how to help avoid repeating these situations in the future.

Do you agree or disagree?  Have you faced these or similar diversion tactics from your employees?  How have you handled the situation? 

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