At what point does a company have a culture?


Monthly, I host a culture event featuring leaders from various companies with amazing workplace cultures.  In these events I ask each guest when he/she became aware of their company’s culture.  All too often, they respond with a story of how they discovered the importance of culture too late, usually a lesson learned the hard way.  Some waited until 20 employees, others after making a bad hire.

So when should you start addressing your culture strategically?  Whether you are an Entrepreneur, small business owner, mid-size business leader, or corporate executive know this….YOUR BUSINESS ALREADY HAS A CULTURE.  If you have a service or product, you also have a culture just as you have a brand.  The size of your business can determine the level of work your culture requires, unless it’s a small but bad culture.  Bad cultures are always a lot of work to turn around – I know – this is what I do!  Yesterday I  shared some tips with the hosts of the Entrepreneurial Talk Podcast (see live recording below) on culture for every size business.  Providing even more help on this topic, I’ve outlined some general culture exercises and guidelines based on the number of employees.

How many employees make a culture?

Teresa Marzolph with hosts of the Entrepreneurial Talk Podcast talking culture for every business.

The Solopreneur

In addition to handling your own sales, marketing, accounting, customer service, and IT, you now have culture responsibilities?  In short, yes.  But, it’s not as tough as it sounds.  I mean, how much can you deviate from yourself?  You and your values are the culture of your business.  In this scenario culture work is more about defining your purpose and your own core set of values.  It may seem silly, but you DO need to establish some core values.  Most entrepreneurs can recall a time they deviated from their purpose or values, and it’s rarely a good story.  Have you ever taken on a client you suspected of being dishonest or deceptive?  How about deliver a product or service that was less than satisfactory because you were in a hurry and out of time?  These are examples of solopreneurs deviating from their own culture and values.  These values should dictate the vendors you choose, sub-contractors you work with, leads you target, how you market to them, etc.  Should you later decide to add to your team or take on a partner, these will be key to growing successfully.

Culture for 2-15 Employees

Building on culture needs for the Solopreneur, you’re now getting into some compliance matters.  Payroll, time off benefits, worker’s compensation, and some core policies will help to manage your risk.  While it’s common to want to just slap some policies and procedures together and fill seats (perhaps even with friends), it’s important to incorporate culture into these essentials.  The time spent on infusing and capturing the company’s culture into basic policies, procedures, and practices will help a lot moving forward.  Lincoln said, “Give me six hours to chop down a tree and I will spend the first four sharpening the axe”.  Your culture will be tested and building it on an unstable foundation ensures it will fail.  So take the time to focus on what you CAN control and sharpen your axe.  Without spending the time on being proactive, the time you spend later on chopping down the tree is much more time consuming, expensive, and unpleasant.  Furthermore, without preparation the tree you’re so eagerly chopping down may just fall on you.  Research the federal and local laws that impact your business or engage someone to do it for you.  Get some expert culture help on hiring and training so that you attract and retain the right people.  You likely don’t need a full-time HR person yet, but that doesn’t mean you are without HR needs.  Many payroll companies offer on-demand HR support, or you may choose to engage an HR consultant on occasion.  Ideally, the expert you choose will have experience in both traditional HR knowledge (ie compliance and risk management) and culture.  Historically we talk about these things separately, but when done correctly, they are two sides of the same coin.

Culture for 16-49 Employees

At this point, your payroll, compliance reporting, hiring, benefits, and employee relations issues are getting to the point where it makes sense to hire someone.  This person is likely tasked with and focused on the administrative side of human resources, but lacking experience with culture strategy.  You’ll see as the business grows in size, your people (or HR) strategy shifts from a focus on compliance to a focus on culture.  Compliance and integrity is at the root of every solid culture; however it in itself is not culture.  For example, simply having milk, salt, flour, yeast, eggs, and butter does not in itself give you bread.  You merely have a good start to prepare some tasty bread.  So, at this size, building on the culture exercises from the 2-15 headcount approach, it’s important to start focusing on employee performance and recognition.  I meet a lot of business owners that think they’re too small to worry about these things.  While employees at this size company still have a pretty solid understanding of how their work impacts the company’s success, they can sometimes feel underappreciated.  Companies this size also often fail to provide training or develop their employees.  Make sure continuous improvement is part of your culture by focusing on goals at every level.  Managers and employees should meet biweekly or monthly to discuss the employee’s progress toward meeting company goals (designed to help the company succeed) as well as the employee’s progress on his/her own professional goals (designed to help the EMPLOYEE succeed).  These one-on-ones don’t need to be long, but they need to happen regularly and need to be effective.  When done correctly and managers are bought in, these meetings can work wonders – improving the employee-manager relationship, and also improving the overall efficiency of the company.  Even at this level, managers can often lose sight of issues at the front lines felt by customer-facing employees.  If coming together regularly in a meeting, both managers and employees are held accountable to progress and support.  The employee is given opportunity to shed light on potential issues before they explode.   In a company this size, every person is EXTREMELY valuable and even the smallest culture deviation can wreak havoc in an entire office!  Stay in the know by setting up proper communication channels.

Culture for 50-150 Employees

When I was first starting out in my HR career, the rule of thumb was one HR person for every 50 employees.  As employee expectations have changed over the years, so too have work demands, geographic restrictions, accessibility, and technology.  As result, the need for human resources has also changed.  A company with 50 employees in many ways faces the same federal regulations as does a company with 5,000 employees.  There are still some exceptions of course, and every employer must also comply with their own local employment laws.  Administrative tasks under the HR realm at this size are too much for divisional managers (operations, sales, etc) to handle.  Culturally, 50 employees is where companies can derail.  At this point you may have layers of management, making it more difficult to keep everyone “on the same page”.  Communication needs to be strategic.  Transparency doesn’t happen automatically at this size and companies run the risk of becoming siloed.  People may feel unrecognized or underappreciated.  When transparency and recognition are lacking, animosity can set in, most often leading to allegations of favoritism or preferential treatment (where harassment and discrimination charges are born).  If left unattended, good employees are often the first to leave, allowing a mildly negative culture quickly to grow toxic.  Compliance should be maintained in workplaces of this size, primarily focusing on culture.  If you are not confident in your ethical integrity, hire a compliance expert or firm to do an audit of your employee handbook, employee record retention practices and record-keeping, injury reporting, compensation practices and strategy, benefits reporting, and workplace safety.  Additionally, implement safeguards such as using an ethics hotline, where employees can make anonymous ethics tips that are reported back to the company executive team.  Ensure you have either an HR person or consultant available to conduct workplace investigations.  No business owner loves to learn of ethical violations or employee issues, but they are inevitable.  Realize it’s better to hear of these issues early, from an internal source versus officially from a government employee, or worse, an attorney.  Wherever possible, make feedback a part of your culture.  Don’t wait until you lose your top talent to investigate whey they are leaving.  Don’t wait until you’re charged with an EEOC claim to make diversity a priority in your workplace.   Employee surveys can be of help and there are a million survey companies out to choose from.  Proactively seek feedback from employees – but be sure to do it strategically.  I once worked with a company that designed and administered their own employee survey.  While their intentions were good, the survey sucked.  Full of open ended questions, asking the same questions over and over in different, confusing ways.  The survey completion rate was terrible because it was too long to take!  Employees used text fields, not to answer survey questions but instead report suspicions of discrimination and unethical business practices.  Because it was anonymous, there was no way to investigate or even ask about the claims leaving the company in a risky and powerless position.  Also, because of the poor strategy and phrasing of the questions, the data was essentially useless, lacking substance or actionable quality.  The lesson here is to use a trustworthy source if you’re gathering feedback and opinions.  In my experience, by just introducing an employee survey employee morale improves.  A word of caution, DO NOT CONDUCT AN EMPLOYEE SURVEY IF YOU ARE UNWILLING TO TAKE ACTION.  While morale will typically improve immediately following a survey, it will just as quickly crash and burn if leaders fail to address or act on the feedback.  When you ask an employee’s opinion and they give it, it is a sign of trust and faith in the company.  To then do nothing and say nothing in response to the feedback (to the group) is a kick to the teeth.  Companies that have made this mistake will end up worse than had they never asked at all.  Commit to making the workplace better before conducting a survey.

Culture for 151-500 Employees

These companies should be almost entirely focused on culture while maintaining and managing compliance.  If you are a company this size and are considering outsourcing any aspects of HR, outsource the compliance side, never your culture.  Receive updates of law changes.  If you have a significant number of employees on leave, engage a company to administer and report to you leave usage for your company.  If you choose to continue managing all aspects of HR (from compliance to culture) in-house, have a person familiar with culture and strategy on your team, or hire one.  Culture can be very difficult to manage at this size, particularly if you are not located in one central location.  If employees are working remotely, it’s even more difficult because employee engagement is now likely your biggest challenge.  Employees in a small company with less than 50 employees are keenly aware on what it means when they fail to show up for work, perform, or meet their goals because they are closer to the end product or service.  Unfortunately we can become unaware or apathetic to the achievements or challenges of others when we don’t see it such as with larger companies.  In a company with 151+ employees or in a company spread out in multiple locations, perceptions become limited.  Culture work for these companies is focused on the employee experience as a whole.  How are you attracting top talent?  If you don’t hire the best, your competitor will.  How are you onboarding employees to make sure they are setup for success from the beginning?  How is information dispersed throughout your company?  What do you do to motivate employees individually?  Does it prevent them from collaborating?  How do you incentivize both innovation and consistency?  It’s in the complexity of the human experience where a true strategist shines.  A person familiar with how the employee experience translates to company success, capable of tapping into and interpreting workplace trends and behaviors, can elevate both a company’s culture and performance.  Because strategists can be expensive, it’s sometimes uncommon for companies to hire a person of this caliber, even at this headcount.  If you’re looking to keep overhead costs down, engage a firm, consultant, or someone to help you.  Technology has wonderful feedback and surveying tools available that are affordable, some providing just feedback and data and some complete with analysis and support.  Experts are also able to do a significant amount of this analysis and support virtually.  Choose the method and approach that is best for your team.

Culture for 501+ Employees

Hire. A. Strategist.  Hopefully it goes without saying, at this size a company should have a dedicated people strategist as part of their team.  Managing your culture’s reputation, like managing your brand, takes a lot of insight, time, and is best when done proactively.  Like the saying “more money, more problems”, “more people, more chaos”.  I tell my husband all the time, people are messy and this is why I love my job.  At this level, you should know as much about your target market as you do your ideal candidates, if not more.  How well do you know your most loyal customers?  Know your high performing employees better.  I’ve seen companies invest hundreds of thousands of dollars on market research yet hesitate to invest anything in doing 360-reviews, a PULSE survey, or even an anonymous feedback tool.  I ask leaders of these companies what they know of the first-line employees that engage with customers.  Not their favorite question of course, but it demonstrates my point.  If you choose to invest money and time into researching the customers you serve and leads you target; however invest no time or energy in learning about the employees that serve them directly, it’s money wasted.

Many factors can impact your company’s culture needs.  The number of people you employ can have great influence on a company’s culture demands, partly due to compliance requirements associated with headcount.  At any level, the first step is to assess risk, ensuring any assumed risk is deliberate (some risks are worth taking so long as it’s a calculated choice).  Once a company’s leader (or the soloprenuer) is comfortable with the assumed risk, implement a system to “manage” compliance and invest in they company’s culture.  This is something corporations have been doing for decades.  If you have a business, regardless of the size, you are most likely competing with at least one large corporation well-equipped with strategies to attract, retain, motivate, and develop top talent in your industry.  Now is the time to catch up!  Understand and deliver on culture expectations for your team and they will deliver on performance expectations you have for your business.

Teresa Marzolph image

Teresa Marzolph is the Founder and Head People Strategist for Culture Engineered believing valued employees produce valuable results.   In her HR and culture career she’s helped both small businesses and large corporations attract, develop, and retain top industry talent.

Culture Engineered Event – Innovative People: DoubleDutch

The Energy of a Team Coming Together

DoubleDutch brings the power of digital to some of the largest live events. Established in 2011 and headquartered in Silicon Valley, they took off on the startup tech rocketship of VC funding and fast growth. As is so often the case, the journey to profitability and category leadership proved to be an intense ride with towering peaks and deep valleys that might have made it hard for some companies to recover. But not DoubleDutch. How do you revolutionize an industry?  The DoubleDutch answer – create a workplace culture of curious, fearless people.  With a 3.9 out of 5-star rating on Glassdoor and a 92% approval rating of CEO and Founder, Lawrence Coburn (who by the way responds to every Glassdoor review, personally), they maintain their position as leaders within their space.

Want to know how they do it?  Join the discussion in Scottsdale, Arizona on April 18th!  We are proud to have DoubleDutch GM and recently promoted Global Director of Employee Engagement, Jackie Roberts share with us the innovative people practices of DoubleDutch.  Get your ticket here!

Feelings in the Workplace – An Insightful Tool or the New “F” Word?

Emotional employee

Crying, yelling, arguing, fighting.  Not ideal in any workplace.  So, when the Huffington Post asked Culture Engineered for tips to include in their article, Crying At Work Happens. Here’s How to Handle It, According To Experts, we stressed the importance of taking a broader approach to such events.  Excessive emotion in the workplace is often and indicator of larger, underlying issues.  Here are some things to consider when emotions erupt in your workplace.

What’s the frequency?

How often are employees overcome with emotion in your workplace?  Weekly?  Daily?  By the hour?  While emotions are a healthy part of the human experience, they are consuming and leave little time or energy for productivity.  Too frequent of outbursts can suggest a culture of enablement or a stressful underlying culture where emotions bubble up.  Such a workplace benefits from training on managing emotions or communication, shifting to proactive interactions and away from reactive.  On the other hand, companies without emotional displays are not necessarily best either.  Life is full of ups and downs.  Given the significant amount of time spent at work, odds are, emotions will sometimes get the best of us at the office.  Letting go in front of someone requires a certain level of vulnerability and trust.  These traits are found within most successful environments.  A workplace without emotion may indicate a lack of trust or an expectation of apathy and therefore may benefit from opportunities to interact outside of work.  Company picnics and office happy hours are a great start, but trust is built by leading with integrity and compassion.  Train and encourage managers to have meaningful conversations with employees over shying away from emotional employees.

Is there a trend?

Where are the breakdowns stemming from?  If a select few are displaying signs of duress repeatedly, its less likely a company-wide culture issue.  Review the surrounding factors of each event, identifying trends.  Are the same people involved with each episode?  Are outbursts more prominent in one department or role?  Unfortunately, we often fail to talk about the string of events leading up to an emotional moment instead, focusing on the straw that broke the camel’s back.  If an employee breaks down because she was warned about coming in late that morning, there is likely more to the story.  Is there a history between the employee and manager?  Has the employee struggled to get to work on time in the past?  Why? These discussions are extremely valuable, helping employees to develop skills needed to succeed as well as uncovering organizational challenges within the company that may be temporarily are prohibiting it from greatness.

Employee behaviors can be signs of potential larger, developing issues within a workplace.  Companies willing to assess their workplace from this perspective can expect to have a more honest, committed, and successful workplace as result.  It’s not always a fun process, but when done right, companies benefit, greatly.

Your company culture – an asset or barrier?  We’re here to help.  Contact a Culture Engineer today by clicking here.

Culture Engineered Launches a New Tool for Schools!

Frustrated teacher

Today, Culture Engineered officially launches a survey focused on assessing the employee experience for educators as it relates to school performance.  The process began in fall of 2017 when a staggering number of requests were received from schools around the US in an effort to improve their workplace.  Not a surprise to many as the national teacher shortage has in recent years moved from a fear to reality.  The shortage especially taking a toll on schools in Arizona, 866 teachers reportedly having abandoned or resigned from their role within the first four months of the 2017-18 school year1.  Culture Engineered is headquartered in Phoenix, Arizona.

Education continues to remain in the spotlight for the state as Arizona Governor Doug Ducey recently announced his plan to restore $400 million to schools in fiscal year 2019, including $34 million for the second year of the teacher salary increase.2  A much needed salary increase as seen by most given the 2016 Bureau of Labor Statistics (BLS) survey ranked Arizona median pay for teachers 45th in the nation.3   A good start, but is it enough?  To be clear here, the “it” being money.  Can we expect an increase in pay to improve classroom interactions?  Will better pay make schools a better workplace?  While a raise definitely won’t make schools any worse, our 2017 research suggests that teacher pay does not necessarily guarantee a better performance or more success.  Of the ten attributes of the employee experience, educators appear to have a very unique expectation of the workplace.  Equipped with data and tools, Culture Engineered again applies the theory that happy employees produce superior results and looks to roll-out this process, starting with select Arizona schools in preparation for the 2018-19 school year.  Additional “school” survey modules are expected to launch late 2018 for other valuable roles within education including school Support Professionals.

Think your school could benefit from our data-driven approach?  Complete the school inquiry form by clicking here OR call us, 855.444.2404.

Wish to nominate an Arizona school to participate?  Click here.

Should you ban employees from dating?

Coworkers flirting

Recently, Culture Engineered was asked by the Huffington Post how an employee should ask a co-worker out on a date.  While a topic dreaded by most HR and People professionals, it led us to consider whether or not a non-fraternization policy still holds any relevance in today’s workplace.  Do these policies protect the company legally?  How does workplace romance impact a company’s culture?  Below we consider these challenges faced by employers managing employee conduct.

Non-Fraternization Policies and the Law

Traditionally, a company policy is designed to keep the balance of power between employees (as individuals) and the company as a whole – defining good versus bad conduct and consequences that are associated with the bad.  But, can policies apply to conduct outside of work such as with romantic relationships?   A quick glance at statutes in California (Lab. Code § 96k), Colorado (Rev. Stat. § 24-34-402.5), Louisiana (La Rev. Stat § 23:961), New York (N.Y. Lab. Code § 201-d), and North Dakota (ND Cent. Code Sec. 14-02.4-01), such a policy seems useless in preventing workplace romances from developing.  Local governments within these states have similar statutes and rules prohibiting employers from taking adverse action on employees for off-duty, off-company-premises conduct, so long the conduct is lawful.  Looking deeper however, interpretation of these statutes is narrow when it comes to office romances, failing to recognize a romantic activity as a “protected recreational activity”.  So, while non-fraternization policies may cause some gray areas to surface within a company, the good news is that when challenged, they are being upheld.  But a word of caution:  be specific.  A broad non-fraternization policy may constitute as interfering with employee rights to engaged in concerted activity, protected by the National Labor Relations Act (NLRA) – a BIG NO-NO.  These rulings have not been so favorable for employers (ie Guardsmark, LLC v. NLRB, 2007 WL 283455 D.C. Cir. 2007).

Romance Impact to Culture

Everyone likes a good love story.  How is this viewed today by employees when it’s happening in the workplace?  In the case of two California Department of Corrections employees working at a prison where the warden was having an affair with three other employees – not so good.  Although all employees engaged in the “relationship” were consenting individuals, the situation still resulted in a sexual harassment suit.  Not that surprising?    How about the fact that no sexual advances or harassing comments had ever been made to either plaintiff?  Miller v. Department of Corrections, No. S114097, 2005 WL 1661190 (Cal. 2005) plaintiffs alleged the favoritism shown to those who engaged in a sexual relationship with the warden caused the plaintiffs to be subjected to a hostile work environment.  The California Supreme Court ruled in favor of the plaintiffs causing companies even more reason to be concerned about workplace relationships – even when consensual.  But with all the studies on workplace camaraderie and positive correlation with employee engagement, there has to be some benefit to employees liking each other enough to date, right? Unfortunately, modern studies on this issue bring something we already associate with workplace romances – complexity.  In a 2016 study, researchers sought to investigate the relationship between romance in the workplace and employee engagement.  Employees participating in a romantic relationship with a coworker for the purpose of improving their workplace status had lower levels of employee engagement.  While this result was anticipated by researchers, the impact uncertainty plays in workplace relationships with regards to engagement was not.  Rather than a decrease to employee engagement, engagement increases the more uncertainty within the relationship!  So while a recent CareerBuilder survey found 37% of people say they have dated a coworker of which 33% have led to marriage – clearly not all coworkers are thrilled about it.  But you have a policy, so that can’t be happening in your company, right?  The same survey shows that 45% of survey were unsure if their company had a dating policy.  Yes, another study to suggest only HR reads the handbook – great.

In summary – some guidance is needed in the workplace and when it comes to office romances.  It’s unlikely that a healthy balance will happen organically.  Too strict of a policy – a company is likely to lose talent and make for an unrealistic vibe in which employees are forced to leave or lie.  Too vague of a policy – layout the welcome mat for the NLRB and expect to have some weird discussions with your leaders (23% of CareerBuilder survey participants admitting to dating someone in the office say they dated someone at a higher level within the company).  Take a proactive approach.  Develop your policies around the culture you wish to create rather than reactively creating policies solely to ward off lawsuits.  Only good employees follow policies, bad employees look for loopholes – and find them.  Review your policies today – who are you tailoring them to?

Your new year strategy – Plan or Pipedream?

If you’re planning for success, be sure to include a plan for your people in 5 steps.

It’s year end and like most leaders,  you are assessing both this year’s performance and putting together a plan for an even better and more successful new year.  But before finalizing either your year end review or the plan for the new cycle, ask yourself this one question:

Does my new year plan solve for challenges within our people strategy?

Revenue goal?  Check!  Goal to reduce expenses?  Check!  Customer retention goal?  Check!  Attract and retain top talent to achieve these lofty goals, in other words “engage employees”?   Whoops. 

Companies who develop and execute strategies on engaging their employees perform better.  In a recent survey, business units with high engagement levels outperformed those with low engagement levels in 11 different areas….sometimes by as much as 70%.  Want 20% higher sales?  To be 21% more profitable?  How about 17% more productive?  Then go back and develop goals around your company employee experience.  In 5 steps, increase your chances drastically for achieving your company’s performance goals in 2018.

Need additional help creating a unique strategy for your unique business?  Contact us today!

Compliance Alert: ’16 Filing Deadline EXTENDED!!!

Did you neglect to report your 2016 work-related injuries and illnesses to OSHA last week? Great news, the original December 15th deadline was extended to December 31st! You can now report your information electronically without penalty for a few more days!

Is my company required to file this information with OSHA?

Your company IS required to file workplace injuries and illnesses with OSHA if :the company

~Has 250 or more employees*, OR

~ Has 20-249 employees AND fall into an industry with a historically high rate of injuries/illnesses*.  Click here to see a list of these high risk industries.

*Electronic filing requirements have not been adopted by the following states and therefore do not require online submission:  CA, MD, MN, SC, UT, WA and WY.  State and local government establishments are also not required to comply with the online reporting process in IL, ME, NJ, or NY.

What information do I need to submit in this process?

Companies with 250+ employees– Information from your 2016 OSHA 300, 300A, and 301  Forms.

Companies with 20-249 employees in “high risk industries – Information from your 2016 OSHA 300A Form.

How do I file?

There are three ways to file on OSHA’s secure Injury Tracking Application (ITA) website:

1) Manually enter data into OSHA’s online form, OR

2) Upload a CSV file, OR

3) Transmit data electronically using an application programming interface (API).

Additional resources:

Register as a new ITA user, or login here.

Read more on ITA compliance or view detailed filing instructions here.

See state plan OSHA information here.

Need help making your workplace safe and compliant?  Contact us today!



Taking false comfort in blanket policies? Recent EEOC suits demonstrate the importance of effective accommodation discussions.

As the Equal Employment Opportunity Commission (EEOC) nears the end of their fiscal year, August press releases reveal a high number of disability and pregnancy discrimination issues.  Of the 18 EEOC sue and settlement press releases made so far this month, more than half include charges of discriminating on the basis of either pregnancy or disability, an increase from July.  But why?  While blatant acts of discrimination are somewhat rare, is it possible for a company to have well-intended practices with harmful and even discriminating impacts?  Taking a deeper look into the EEOC’s shared findings will likely have most companies taking a tough look in the mirror.

Is a request for a leave of absence actually a request for accommodation?

When most employers think of a medical leave, they think of the Family Medical Leave Act (FMLA).  Signed into law in 1993, FMLA generally requires employers with 50+ employees to provide 12 weeks of unpaid, job-protected leave to “eligible” employees for qualified medical and family reasons.  So, if a company has less than 50 employees, or an employee fails to meet eligibility criteria, the company is not obligated to grant the employee leave, right?  In short – no. In a 2016 publication, the EEOC (the agency tasked with enforcing Title I of the American with Disabilities Act, ADA) describes reasonable accommodation as “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities”.  The publication is clear – an employer can be obligated to provide leave as part of an accommodation even where leave is not available.  Ultimately, the determining factor will be whether or not offering a leave of absence would cause undue hardship to the company.  But what constitutes as undue hardship?  Much like accommodation needs may vary by person, undue hardship will likely vary by company.  So, when Dependable Health Services, a healthcare staffing agency, denied an employee’s request to be reassigned to another department due to her pregnancy complications related to sickle-cell anemia, later terminating her employment one day prior to her scheduled return from maternity leave to “back-fill” her position, the EEOC challenged the undue hardship exception.   On a much larger scale, the EEOC also challenged the undue hardship experienced by multi-billion dollar department store, Macy’s, when it chose to terminate an 8-year employee rather than excuse a one-day absence she requested to tend to a medical condition (asthma).  Lesson here – if your company is covered by the ADA, get familiar on how to have an effective accommodation discussion.  Just because you do not offer a formal leave of absence, it does not necessarily mean you cannot offer (or be obligated to offer) a leave of absence as part of an accommodation.  Undue hardship will need to be assessed, keeping in mind a company’s definition of undue hardship may differ from that of the EEOC.

When an employee exceeds the amount of leave available, should the employer should terminate the employee in accordance with company policy?

Ask an HR person or labor attorney why having company policies or a handbook is important and you’ll most likely get a similar response – to protect the rights of workers and company interests.  Policies ensure fair and consistent expectations within an organization.  But as with most things, a policy is only as good as the reasoning behind it.  Not to suggest the adage, rules are made to be broken, company policies DO need ongoing review to remain relevant.  This is especially clear in cases where rigid policies or doing something a certain way “because it’s always been done this way”, is getting in the way of effective accommodation discussions.  In a recent settlement with Sensient Natural Ingredients, LLC, the EEOC announced Sensient will pay $800,000 as part of a consent decree.  The settlement stems from a 2015 lawsuit in which the EEOC claimed Sensient violated the ADA by discharging employees for exceeding the company’s restrictive leave policy and refusing to allow employees to return following disability-related absences.  Lowe’s too signed into a consent decree with the EEOC in an $8.6M settlement due to a pattern of systematically terminating employees regarded as disabled who exhausted a 180-day (later revised to a 240-day) leave policy without providing reasonable accommodation.  Perhaps this was best demonstrated in the EEOC’s notorious 2011 disability settlement with Verizon for $20M.  The settlement stemmed from Verizon’s “no fault” attendance policy, issuing disciplinary action (including dismissal) to employees with absence violations based on certain thresholds, without consideration of accommodation.  While the EEOC publicly makes no mention of the intent behind policies and practices for these companies, EEOC Chair, Jacqueline A. Berrien’s response to the Verizon settlement warns, “…an inflexible leave policy may deny workers with disabilities a reasonable accommodation to which they’re entitled by law – with devastating effects.”  Lesson here – give thought to the intention behind company policies on an ongoing basis.  Applying rules too broadly or rigidly without thought, while ensuring consistency, may do so at a far greater expense to the company and its employees.  A company’s success is built on the success of its employees.  When a company refuses to even hear from employees what they need to be successful, failure is unavoidable and where accommodations go unheard, EEOC charges await.

Tips for a valuable accommodations discussion:

  • Educate first-line managers on the signs that an accommodation discussion is needed. A company may have a request form available with HR, but this is often not how accommodations discussions surface.  Is an employee struggling to meet performance or attendance expectations?  Often the employee and first-line manager are the most knowledgeable as to “why”.  If the “why” has anything to do with medical reasons for the employee or employee’s family or dependents – they should know this is a sign to engage HR or someone more familiar with accommodation discussions.
  • “What do you need to be successful here?” – make this question a part of your company’s culture. Where needed, outline expectations and then ask what someone needs to meet those expectations.  This question is not only key to a successful accommodations discussion, but a question key to supporting any employee in their goals.
  • Give genuine consideration to requests. Although some requests may in-fact cause undue hardship to an employer, consider the request before responding.  Research what it would take to grant the accommodation.  Tap internal resources, careful not to share confidential information where inappropriate.  This accommodation process is indeed, a PROCESS.
  • Deliver the decision to the employee in person (by phone if face-to-face is not an option), followed up with appropriate documentation.
  • Encourage the employee to keep lines of communication open. Often accommodations can change as can the needs of a job.  The employee should feel empowered to initiate these discussions with appropriate parties (management, HR, etc) should needs change in the future.  Encourage employees to be proactive in this process, owning their success.  Ultimately, an employee’s willingness to engage in and initiate these discussions will depend heavily on their initial experience.  Both the employee and the company have a shared interest in making the process valuable.

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Does Comey’s interview satisfy workplace investigation criteria?

Objective. Genuine. Thorough.  The three keys to a successful workplace investigation.  Granted, consequences of today’s Senate Intelligence Committee Hearing extend beyond those directly involved but also the security of a nation.  But from a business perspective – Comey is a former employee, the government an employer, Trump a top executive, and the Senate Intelligence Committee HR in this serves as the “investigation”.  How do you rate it?

It’s fair to say that no one looks forward to a workplace investigation.  When handled correctly though, a well-done investigation helps to maintain the ethical integrity of an employer and its people, identifies areas where improvement is needed, and ensures everyone plays an active part guarding and creating their workplace culture.  But when tensions are high – as they usually are when an investigation is underway, how are investigations to be handled?  Here are some tips.

Investigate without bias.

Investigations usually fall to the company’s HR professional.  But what happens if you do not have an HR person?  Or, what if your company’s HR person is involved in the investigation?  Should an HR professional be tasked with investigating his/her own boss?  In such cases, look outside the organization for someone to conduct the investigation on the company’s behalf.  An example being Uber’s relatively recent decision to hire former U.S. Attorney General, Eric Holder, to investigate allegations of discrimination and sexual harassment (which has already led to several changes).  Often attorneys and HR consultants can assist in these investigations.  Sign them to a non-disclosure and confidentiality agreement, ensuring findings remain confidential.  While this may not protect a company from legal claims made by employees (active or former), it minimizes risk of an outsider person having loose lips.  Additionally, hiring a person or firm to conduct an investigation suggests the company is making a good faith effort to maintain a fair and ethical culture, which can help should a formal legal matter later surface.

Seek truth, not agendas.

Unfortunately issues prompting an investigation are the result of a culmination of pitfalls.  Often the issue could’ve been addressed or prevented altogether early on by better communication, transparency, accessibility, or even policy.  Investigations can be painful for companies perhaps even more so for good-intended ones.  It is important therefore, to keep in mind that investigations are part of the process in becoming a better company.  Best to uncover an issue sooner versus later as problems often perpetuate over time.  Do not censor investigation results for fear they will expose the company is imperfect.  Be genuine in resolving issues and improving a company’s culture over all else.  A good company can endure valuable criticism.  A good investigator is an honest one.  An investigation that instead seeks to vilify a scapegoat in hopes of allowing a company to save face ultimately serves no one, for long.

It ain’t over, ‘til it’s over.

The only thing worse than a workplace investigation is revisiting a workplace investigation.  Buckle down, complete it, follow-up with all involved, and document it.  While it is rare that post-investigation conversations are full of sunshine and rainbows, even bad news is better than the assumptions typically made accusers, or the accused.  Investigate every aspect possible.  Thorough investigations are often time consuming and yes, unpleasant.  As mentioned previously however, issues prompting an investigation are likely due to a multitude of mishaps, oversights, and miscommunication.   Botched investigations may be viewed as willful or retaliatory.  Do not let your investigation be another symptom of company growing pangs.  It may be the most costly one of all.

Need help with conducting your workplace investigation?  Contact us today.