Gruntled Employees

Debating noncompetes

2009-07-13T11:49:13-04:00

Whether a noncompete is enforceable depends on what state you're in. In California, as most of you know, employment noncompetes are completely illegal. At the other end of the spectrum is Florida, where noncompetes are presumptively enforceable — the employee has to prove that the restriction is unreasonable, instead of the usual requirement that the employer prove its reasonableness. The other 48 states fall in between to different degrees. My state, the Commonwealth of Massachusetts (we call our state a "commonwealth" because we're, you know, special; can you name the other three?) will enforce noncompetes, but only when they're necessary to protect a company's secrets or customer relationships.

But now some people want to change that.

The Massachusetts House of Representatives (you know, the august body whose previous three speakers were indicted) is currently entertaining two bills to radically cut back the power of employers to use noncompetes. One bill, House No. 1799, places huge restrictions on noncompetes: they can only be enforced on employees earning $100,000 a year, they can only last two years, and the employer has to pay a ransom of half the employee's salary (up to $100,000) during the enforcement period. The other, House No. 1794, stands Massachusetts with California in completely banning noncompetes.

It's as yet unclear how much support these bills have or will get. In a recent column in The Boston Globe ("Start-ups stifled by noncompetes"), Scott Kirsner suggests that startups and their backers (unsurprisingly) are against noncompetes, while established companies (unsurprisingly) favor them. (Full disclosure: Scott's piece mentions two of my noncompete clients, although I didn't hear from him.) In the same piece, Governor Deval Patrick gives his principled take on noncompetes. Scott writes:

Governor Deval Patrick hasn’t taken a position on noncompetes. When I spoke with him earlier this month, he said, “I don’t have a stake in the status quo’’ but added that he hadn’t heard a consensus view from people in the innovation economy as to whether they’re a positive or a negative for businesses: “If there’s consensus in the industry, I’m happy to support that.’’

But the governor could end up with his finger in the wind for a while looking for that consensus. You see, in every noncompete lawsuit, there are two companies: the old, or enforcing, company; and the new, or hiring, company. (Usually, the new company is an interested third party rather than an actual defendant in the lawsuit.) And over time, companies may find themselves on both sides of the issue. Lawyers, too. Most noncompete cases are litigated by management-side lawyers (like me) rather than employee-side lawyers.

The Globe ran a nice editorial framing the issue in yesterday's paper: "Clause for concern." When I spoke with deputy editorial-page editor Dante Ramos last week, I was a bit apprehensive about criticizing these legislative bids to gut or kill noncompetes. I didn't want to be seen as self-interested; companies around the country pay us a lot of money to litigate noncompete cases. To be sure, the death of noncompetes in Massachusetts will mean a long-term loss of that type of business. (It will also mean a short-term jump.)

But the bills are bad policy. Massachusetts has a 300-year-old tradition of protecting the freedom to contract; California doesn't have a 300-year-old tradition of anything. While many companies try to enforce noncompetes for the wrong reasons (spite, vindictiveness, anger, desire to stifle competition), Massachusetts judges usually see through this and deny enforcement. And in some circumstances, enforcing a noncompete is the only way to prevent unfair competition. Throwing noncompetes out like H. 1794 would do is the whole baby-and-bathwater thing. And H. 1799's mishmash of arbitrary restrictions on noncompetes lacks principle — it's neither for noncompetes nor against them. (That said, the drafter is a fine lawyer and experienced noncompete litgator.) At least the outright ban of 1794 stands for something, which I can respect if not agree with.

Companies shouldn't use noncompetes to try to make employees stay. That's what management is for. But used sparingly and wisely, noncompetes can be an important tool for protecting companies' secrets and customer relationships.

• • •

The other three "commonwealths" are Pennsylvania, Virginia, and Kentucky. Puerto Rico is a commonwealth, too, but not in the same way. Go figure.

Sugarcoated terminations

2009-06-29T15:03:36-04:00

This might sound obvious, but when you’re firing an employee, you need to tell the truth.

Actually, that’s only half right. Well, closer to two thirds.

Anyone who’s ever watched Law and Order or been in a courtroom knows by heart the oath that witnesses take before testifying:

Do you swear to tell the truth, the whole truth, and nothing but the truth?
I do.

Makes sense. It really breaks down this way:

You’ll tell the truth
You won’t leave anything out, and
You won’t add any lies.

For a witness in a court proceeding where the goal is to get justice, this three-part standard for testimony is the best way to do it.

But the workplace is not a court of law. (Yeah, I heard you say “duh.”) The goal isn’t necessarily justice. Instead, the goal is to run a workplace the right way and to avoid unnecessary and costly litigation.

Firing an employee is a high-risk situation. When you do it, you should follow only the first and third prongs of the testimonial oath:

You’ll tell the truth
You won’t add any lies.

What you say could come back to haunt you and the company in a lawsuit, so make sure that everything you say is the truth. Otherwise, if it can be shown that you lied at this point, it’s not hard for a judge or jury to think that you or the company lied at other points. Cases are won and lost on credibility, more than they are on laws and lawyering.

But forget about the “whole truth” part (the “you won’t leave anything out” part). You have no obligation to tell the fired employee absolutely everything, and you almost certainly shouldn’t. For example, you might fire somebody because their performance is bad and because, frankly, you just don’t like them. In the termination meeting, you should leave out the “frankly, I just don’t like you” part.

Managers and HR professionals understandably want to take the edge off these high-stress meetings. There is a desire to sugarcoat the termination a bit, to relieve the tension and perhaps allow the employee to save some face on the way out. That’s fine.

But resist the temptation to say anything that’s not true. It’s not worth it. Instead, sugarcoat the termination by leaving out the part of the truth that might be incendiary and hurtful. A terminated employee is entitled to know why he or she is being fired, but not every single reason.

Keep the whole truth to yourself.

The wrong question

2009-06-27T02:29:36-04:00

Too often, when managers and HR professionals get employee requests for special treatment, accommodations, or departures from policy, they ask themselves the wrong question:

What if another employee finds out, and then asks for the same special treatment, or accuses us of not treating everyone equally?

This question is common, understandable, and well meaning. HR pros and good managers know that different treatment (or as the lawyers say, disparate treatment, which means "Look at me: I went to law school and learned how to talk different. I mean, disparate. D'oh!") can potentially lead to discrimination lawsuits. The problem is that when you treat people uniformly, you end up treating them uniformly badly.

So this is the wrong question to ask.

The right question to ask is this:

If I was requesting this special treatment in the same situation, would I think I deserved it?

If your being-honest-with-yourself answer is yes, then you should try to find a way to grant the request. Of course, don't discriminate (there are, like, laws against doing that). But don't disgruntle one employee just because other employees might not get the same treatment.

You'll end up with the wrong answer.

Does your company need a smartphone policy?

2009-06-25T00:56:37-04:00

Are your employees twittering during meetings? Texting during conference calls? Checking Facebook on their iPhones during training?

As more employees carry and use iPhones and BlackBerrys, some employers are fretting about an increase in impolite smartphone usage. A few days ago, The New York Times had a fine article by Alex Williams called "Mind Your BlackBerry or Mind Your Manners." In it, Alex cites questionable smartphone behavior in different workplace settings. Some companies have taken to policies banning BlackBerrys during work meetings. But more companies are facing up to the reality of the omnipresent smartphone: "Despite resistance, the etiquette debate seems to be tilting in the favor of smartphone use, many executives said."

What do you think? In this space, we've usually advocated a policy-lite approach that involves treating employees as grown-ups who have judgment. See, for example:

“A two-word corporate blogging policy”
“The world’s shortest employee handbook,” and
"A twitterable Twitter policy."

Is it time for an iPhone policy? (At my firm, the only BlackBerry policy is "No BlackBerrys." It's very similar to our Windows policy.)

I want to hear from you, managers, HR pros, in-house lawyers: Does your company need a smartphone policy? Leave your thoughts in the comments, or send me an @message or direct message on Twitter: @jayshep.

And while you're at it, take this quick, single-question poll.

Nickel-and-diming your employees

2009-06-24T01:16:23-04:00

Lucy works as a salesperson for a machine-parts company in the Pacific Northwest. She has to travel a lot to make sales calls; often out of state. Because she's on the road so much, she has to eat out all the time. She's not crazy about this, because she finds it difficult to eat healthily at fast-food and quick-service restaurants.

Her company appears to understand that she and her fellow salespeople have no choice but to eat out frequently. So it allows them to expense their meals on the road. But like too many companies, this one doesn't trust Lucy or her coworkers. It's apparently concerned that they will run up obscene meal expenses at luxury restaurants (at airports and rest areas — right!). So it came up with a policy.

Under this company's meal policy, Lucy and her colleagues can expense meals under the following restrictions:

they have to be traveling for work
they have to be 75 miles from home, and
they can't spend more than $17.50 per meal.

OK, now the first restriction makes sense: this is supposed to ameliorate the hassles of eating while traveling on company business.

The second restriction also seems to make sense; the company's not interested in feeding its people while they're at home. But there's an unforeseen consequence here. Much of Lucy's travel is by airplane, and she often has to leave her home early in the morning to catch her flight, making it difficult to make breakfast at home before she leaves. Ideally, she would check in at the terminal and go through airport security, and then grab some breakfast before her flight takes off. But the airport is just 22 miles from her house, so the meal policy doesn't cover her breakfast. If she wants coffee and a muffin at the airport, it's on her nickel.

The last restriction also seems to make sense, setting a spending limit to avoid excessive meal expenses. And $17.50 is probably enough to get breakfast or lunch at most quick-service places, and dinner at a fast-food joint. But the problems arise with how the policy is enforced.

To get her lunch paid for, Lucy has to charge the meal on her company-issued credit card, and then fax or scan her itemized receipt to an accounting gnome at the home office. More than once, she has received admonishing emails or phone calls from these gnomes about nonconforming meals expenses. These, not surprisingly, displease her.

Another unintended consequence: Lucy and her fellow salespeople are self-interested, like most human beings, and they are smart. They quickly learn how to game the system, and find ways to charge meals under "The Price is Right" rules: they come as close as possible to $17.50 without going over. So the company often ends up paying more for meals than it would have if it hadn't set the $17.50 limit.

But the biggest and most damaging unintended consequence is that Lucy and her colleagues resent the meal restrictions. It is an irritant to them, especially when they are waking up at five in the morning to board a crowded commuter flight to go and sell the company's machine parts. While it's impossible to measure, I'd bet you breakfast at an airport terminal that the amount they lose in forgone sales stemming from employee malaise dramatically outweighs any money the company saves on meal expenses.

Employers: resist the urge to have policies like these. Treat your employees like adults. If they spend unreasonable amounts on meals or other expenses, talk to them about it. If it's a persistent problem with a particular employee who's taking advantage of the company, fire that employee. But don't assume that all your employees are trying to bilk the company for an extra airport donut.

Notes: As you might imagine, I don't want Lucy to get fired, so I have changed some of the identifying information. But the story is true … Also, I'm no fan of nickel-and-diming, whether it's employers doing it to their employees, or lawyers doing it to their clients.

Thanks

2009-06-17T22:20:00-04:00

Gruntled Employees started 33 months ago with a post criticizing Radio Shack for firing employees by email ("Radio Shack Deletes 400 Workers, Common Sense"). A couple of days ago, our 122nd post castigated a law firm who fired people by voicemail ("Please leave your layoff message after the beep"). How far we've come.

During those 33 months, many people have visited the blog. Today, we enjoyed our 100,000th visit. To be sure, there are blogs out there who get 100,000 visits a day. Nevertheless, I just wanted to take a moment to thank everyone for reading and for contributing to the discussion, both here and at our sister blog on client value and service, The Client Revolution.

Thank you.

— Jay

"Please leave your layoff message after the beep"

2009-06-14T00:50:11-04:00

The always-excellent Carolyn Elefant has this post, "U.K. Lawyers Get the Message: 1-800-U-R-Fired," over at one of my favorite blawgs, Legal Blog Watch. Carolyn reports (citing a Daily Mail story) on how 14 trainee solicitors (which is British for "baby lawyers") were laid off by Freshfields in London. Freshfields sounds like an organic supermarket chain, but is actually the fourth-largest law firm in the world and a member of Britain's "Magic Circle" (which sounds like a Harry Potter sequel, but isn't).

Like most major law firms, Freshfields has had to trim its staff in response to the worldwide economic crisis. What makes them different is the way they did it: by leaving the unlucky 14 a voicemail. Not only that, but instead of partners doing the deed, they staffed it out to HR.

What's British for power tool?

Apparently, Magic Circle firms respond to bad press the same way their American cousins do: by defending the indefensible. The Mail story quoted a firm flack:

It was not ideal from our perspective but we were trying to get the information out as soon as possible. We did not want to take the chance of them hearing first from someone else.

To be fair, Freshfields gave the laid-off lawyers a severance to soften the blow. How much? you might ask. Well, the firm spokesperson wanted to be discreet:

Those people that we have not retained received an ex-gratia payment. We feel it would not be appropriate to confirm the exact amount.

Of course, of course. And it's not like that word would get out. A secret's a secret, old chap. Oh, wait. What's this? The Internet? Bloody hell!

Turns out the firm gave severance payments of a whopping £700.

Apparently, "ex-gratia" is British for cheap.

This cowardly method for firing people is in danger of becoming a trend. Last year, the Chicago Sun-Times fired people over the phone. Recently, the Boston Globe reported on a local social-media-software company revealing layoffs via Twitter and blogs. And Gruntled Employees' very first post, nearly three years ago, was on firing by email: "Radio Shack Deletes 400 Workers, Common Sense."

File this under "Just because you can, doesn't mean you should." Employers: don't fire people by phone, email, voicemail, Twitter, or blogs.

Be a person. And fire in person.

Employers' Rx for swine flu? Eliminate sick days

2009-06-11T23:53:34-04:00

You may have noticed that you can't spell pandemic without P-A-N-I-C.

Today, the World Health Organization raised its pandemic flu alert to DEFCON 3. Or something. Actually, it's called "Phase 6," WHO's highest pandemic alert and the first called since 1968. (Reuters story here.) Obviously, this is a serious illness worldwide. But to put it in perspective, regular seasonal flu kills about 500,000 people a year worldwide, and 36,000 in the US. By contrast, swine flu has killed 175 worldwide, and 57 in the US.

This isn't the first time that a novel-sounding disease has gotten undue press attention: recall the coverage of SARS in 2003 and avian flu in 2004–06. Both had deaths numbering in the hundreds worldwide, and no American deaths.

But the current swine-flu pandemic has employers concerned. Many employment lawyers have added to the hysteria by flacking doom-filled seminars on emergency preparedness and other pandemic responses.

My response? Get rid of sick days.

Now before you go all "What you talkin' about, Willis?" on me, let me explain.

Having a set number of paid sick days is a nice idea in principle, but it often has the unintended consequence of encouraging sick employees to come into work. Employees who have used up their paid sick days feel pressure to return to the office. Other employees who are hoarding their paid sick days to use up during Spring Training or something also turn into host monkeys when they should have stayed home.

(A few months ago, I talked about a similar syndrome involving so-called "Iron Man" or perfect-attendance awards. See "The Iron Man Award Integrity Act of 2009.")

My solution involves treating employees like adults, a recurring theme on this blog. If employees are sick, send them home. Tell them to stay home until they get better. You'd rather have them play the role of Absent Employees instead of Patients Zero. That's how our firm handles sick time.

Some employers and HR folks (the ones who don't Get It) will whinge: "But what if they take advantage of us and abuse the privilege?"

What if indeed. If you have an employee who would sink so low as to feign illness to steal pay from you, then that person should quickly become an ex-employee. Malingerers tend to be easy to find, and they'll quickly give you reason to axe them. (Natch, do it carefully to avoid the classic bogus disability-discrimination claim.)

As for your grown-up employees, tell them to wash their hands frequently, cover their coughs and sneezes, and stay the hell away from work when they're ill. And pay them.

• • •

A few weeks ago, Legal Talk Network interviewed me on a program with the all-too-sexy title, "Compliance in Pandemic Planning." (I pushed for something with "hamthrax," but was overruled. Too soon?) Paul Boynton, LTN's excellent In-House Legal host, did a great job framing the issues around how in-house counsel should approach pandemics. You can check it out here.

How Twitter will kill annual performance reviews

2009-06-01T13:24:07-04:00

My daughters go to elementary school in Newton, Massachusetts. The principal — who is, sad to say, retiring this year — is a brilliant, caring, dynamic educator named Christine Moynihan. One of our favorite things about her — and there are many — is that from time to time, she makes schoolwide announcements over the loudspeakers in which she awards chidren “Wows.”

What is a "Wow"?

A “Wow” is a short description (maybe three or four sentences) of something a pupil did to earn the Wow (yes, it's self-referential; get over it). Examples include working extra hard on a particular project, helping a classmate during a difficult situation, or showing unusual courtesy or friendliness or determination. Dr. Moynihan says the Wow winner’s name and describes what he or she did to earn the Wow. That's it. It’s short, it’s public, it’s concrete, it’s earned — and it makes the kids feel great.

Compare this to the workplace. In the workplace, we don't have Wows. We have annual performance reviews.

I hate annual performance reviews. As an employer, I hate writing them. They take a lot of work, and they often feel artificial. As an employee (back in the day), I used to hate getting them. They never seemed like they appreciated the employee that I was, and instead focused on fitting me into little boxes. And as an employment lawyer (defending employers), I hate reading them. Too often, I read the annual performance evaluations of employees who were fired for poor performance, only to find no written record of the employee’s suckiness. And you can imagine how that looks to a judge or hearing officer — an unbroken string of “Satisfactory” marks. Swell.

Why do performance reviews bite? For a number of reasons: They’re hard to write. We want to be fair and accurate, but we don’t want to sound like a machine. And for some reason, criticisms seem worse in writing than when spoken, mainly because the written word has no facial expressions or nonverbal cues to soften the blows. Plus we know that written criticisms can fester and grow inside a personnel file, and we know that employees generally have a right to read their personnel files. So we tend to pull our punches, and leave out details of poor performance — details we may regret not having in some future litigation defense.

All in all, I think many managers miss the point of performance reviews. If the goal is to get the employee to continue to perform well or to start to perform better, then why are waiting a year to do that? Why are we using a hyperformalized, bureaucratic form to convey these feelings? And if the point of the review is to correct behavior, doesn't this seem like a funny way to do it?

We need a better way.

I propose that we replace formal annual performance evaluations with a workplace equivalent of the Wow.

Enter Twitter.

One of the great beauties of Twitter — and I believe one of the reasons it has been so transformatively successful — is its 140-character limitation on messages ("tweets"). In fact, I don’t see it as a limitation (in a negative sense) at all. In many ways, knowing that you have only 140 characters to get your meaning across is very liberating. It forces you to eliminate everything unnecessary. It forces you to choose your words very carefully. It forces you to edit. It may take a little more time to write something that short than it would take to write something a little longer, but that’s OK.

So tweets are limited in length, just like the three- or four-sentence Wows at my daughters’ school, only shorter. Come to think of it, this isn’t really a novel idea. It was in fact the central premise of Ken Blanchard’s 1981 classic management guide, The One Minute Manager.

Tweets are also public. Like the Wows being broadcast over the school PA system, a Twitter message is broadcast over the internet to anyone who happens to be following you, plus anyone who happens to be searching for something you’ve written about. Once you’ve pressed the “update” button, your tweet is out there for the world to see.

And finally, it’s unique and free form. There are no boxes or multiple-choice answers or “satisfactory/unsatisfactory/NA” responses to contend with. It’s difficult to cut and paste from previous forms. The writer actually has to put thought into the tweet.

So I propose replacing the annual performance review with a twitterable evaluation — a “twevaluation,” since the Twitterverse loves neologisms. Some guidelines:

First and foremost, if you haven't already, sign up on Twitter.
Identify the employee and give the Wow. If the employee’s already on Twitter, use their Twitter name with the @ symbol.
Use the hashtag #twevaluation at the end of the tweet. That makes it easier for people to find them. Don’t know what a hashtag is? Look here.
Keep it to 140 characters, including the name and the hashtag. But remember, Twitter isn't text messaging. Most Twitterers use actual English words, not SMS abbreviations like "c u l8er." Very simple space savers (like "&") are OK.
Don’t use a twevaluation to say something bad about an employee. Trust me as someone who defends companies in employee lawsuits: you don’t gain anything by publicly dissing an employee. Save it for a direct message. Better yet (much better yet), be a person and do it in person.
And remember: follow your company’s Twitter policy. Don’t have one? Here’s our Twitterable (exactly 140 characters long) policy.
I'll start. Follow me at @jayshep and read my #twevaluations as they come in. Or search Twitter for #twevaluations.
Then contribute your own. You don't have to give every employee one. Start with a couple, and add them when your employees earn them. It's not about keeping score; it's about recognizing good performance and encouraging more of it.

I hate people, but I love this blog

2009-05-28T00:24:44-04:00

I don't really hate people. I'd really be in the wrong business as an employment lawyer if I did.

But "I hate people" is the name of a terrific blog I recently learned about. Its full name is I hate people ... but it's nothing personal: Office jujitsu for outsmarting the corporate oafs. (Why isn't it oaves? We don't buy loafs of bread, do we?) Jonathan Littman and Marc Hershorn cleverly cover the workplace, standing up for common sense and trying to prevent office people from turning into what they call sheeple.

Read their recent take on corporate reviewing of employees' social-media traffic in "Face(book) Off." And in "Brand Hate: Domino's Pizza YouTube video scandal," Jonathan digs deeper to get at the root of an embarrassing corporate exposure. Their analysis of workplace issues is rooted in a philosophy that's similar to ours: disgruntled employees cause problems, so try to keep them gruntled.

Jonathan and Marc have a book coming out in a couple weeks. I'm looking forward to reading it. In the meantime, head on over to I hate people and start sharing the hate.

One employer's alternative to layoffs

2009-03-16T00:54:27-04:00

We’ve written a lot about layoffs lately: "Of layoffs and leaks," "Layoffs: Do you want the good news first?" "The pink-slip blues," and "Monday, Bloody Monday." But here’s one company that took a daring and innovative approach: instead of laying people off at Boston’s Beth Israel Deaconess Medical Center, CEO Paul Levy gathered employees in an auditorium and asked for their help. The extraordinary meeting was chronicled in Kevin Cullen’s Boston Globe column, “A head with a heart”:

"I want to run an idea by you that I think is important, and I'd like to get your reaction to it," Levy began. "I'd like to do what we can to protect the lower-wage earners — the transporters, the housekeepers, the food service people. A lot of these people work really hard, and I don't want to put an additional burden on them.

"Now, if we protect these workers, it means the rest of us will have to make a bigger sacrifice," he continued. "It means that others will have to give up more of their salary or benefits."

He had barely gotten the words out of his mouth when Sherman Auditorium erupted in applause. Thunderous, heartfelt, sustained applause.

Cullen goes on to report that the workers began flooding Levy’s inbox with suggestions on how to avoid mass layoffs:

The consensus was that the workers don't want anyone to get laid off and are willing to give up pay and benefits to make sure no one does. A nurse said her floor voted unanimously to forgo a 3 percent raise. A guy in finance who got laid off from his last job at a hospital in Rhode Island suggested working one less day a week. Another nurse said she was willing to give up some vacation and sick time. A respiratory therapist suggested eliminating bonuses.

Maybe it will work, and maybe it won’t. But Levy and Beth Israel deserve credit for considering alternatives before dropping the layoff hammer.

By the way, Paul — who's no stranger to innovation — was recently listed as a CEO who twitters (@paulflevy), and he writes an excellent blog called “Running a hospital.” He (reluctantly) posts about some of the feedback he’s received since Kevin’s column appeared ("Pay it forward").

Good work, Paul.

[Full disclosure: My firm has done a small amount of work for Beth Israel, but I have never met Paul.]

A twitterable Twitter policy

2009-03-11T01:16:59-04:00

You know that something new has gone mainstream when the employment lawyers get involved. So it is now with Twitter, the microblogging service that is currently taking over the universe.

Twitter has grown rapidly and enormously. There are approximately six million users right now. This is much smaller than Facebook or MySpace, the older members of the social-media set. But the pace of growth has been incredible; one source pegged it at 1,000 percent in 2008 alone. By most accounts, the demographics of Twitter users skew older and more professional than Facebook. For example, 52% of Twitter users are 35 or older, compared to just 19% of Facebook users. That makes sense, since Facebook began as a college-oriented site. Also, it is said that "Facebook is about people you used to know; Twitter is about people you'd like to know better." (The widely repeated quote is from a Globe and Mail article by Ivan Tossel, but you have to pay to read it.)

Some of you may still be asking, “What is this Twitter thing, anyway?” (“And don’t say microblogging again, because that doesn’t help.”) Twitter is a free service that allows users to send very short messages (called tweets) over the web to people who (in theory) care. How short is very short? No more than 140 characters, including spaces and punctuation. In fact, they even have a name for a tweet that is exactly 140 characters long: it’s called a “twoosh.”

According to the site itself, the messages are supposed to answer the question, “What are you doing?” To be sure, most people don’t care to learn about the humdrum of your daily life: “I’m still in line for my venti nonfat extra-hot latte.” Or “Mr. Biddles rolled over again. Silly cat. LOL.” That sort of tweet is of value to exactly no one. (Even Mr. Biddles would cough up that hairball.)

Where it does become valuable to businesspeople is where people answer the question, “What are you thinking about?” Or: “What is interesting to you?” Then you try to find other people who might share your interests, and you “follow” them to learn what they’re thinking about. Often, they will reciprocate by following you. Done right, people can use Twitter as a powerful networking service to get in front of potential clients or colleagues within their industry.

As often happens when employees start doing something new, companies soon want their lawyers or HR people to create policies to restrict it. This happened in the Nineties, when employers got nervous about email and internet usage. More recently, companies have instituted blogging policies, and guidelines for the use of MySpace or Facebook. So it’s no surprise that we’re starting to see requests for Twitter policies.

Longtime readers of Gruntled Employees know how I feel about the hyperlegislation of the workplace by zealous policymakers. Well-meaning HR professionals and employment lawyers tend to throw the baby out with the bath water when it comes to policing employee behavior, whether online or not. I generally advocate a simpler approach that involves treating employees as grown-ups who have judgment. See, for example, “A two-word corporate blogging policy” and “The world’s shortest employee handbook.”

With that said, here is my take at a corporate Twitter policy that has the extra added benefit of being itself twitterable:

Our Twitter policy: Be professional, kind, discreet, authentic. Represent us well. Remember that you can’t control it once you hit “update.”

And yes — that's a twoosh: exactly 140 characters of pure employment-law goodness.

By the way, you can follow me on Twitter at @jayshep — as long as you follow the policy, too.

[By the way, without realizing it, I totally boosted the cat-rolling-over bit from Guy Kawasaki's excellent post, "Looking for Mr. Goodtweet: How to Pick Up Followers on Twitter."]

"I'm running late because of the recession ..."

2009-03-06T14:41:14-05:00

Understandably, it can be hard to drag yourself into work when all you hear is bad news about the economy. Many workplaces are having morale problems in the wake of — or in anticipation of — layoffs. And it's starting to show in increased employee tardiness.

According to a recent poll, 20 percent of American workers are showing up late for work at least once a week. Last year (in the pre-Recession glory days), that figure was 15 percent. This according to an online survey of 8,000 US workers commissioned by CareerBuilder.com and conducted by Harris Interactive. (Shout out to the Society for Human Resource Management's Talent Management site for the news.)

A simultaneous survey of 3,200 managers and HR professionals revealed some of the craziest excuses for the late arrivals. My personal favorites were:

My heat was shut off so I had to stay home to keep my snake warm, and
A groundhog bit my bike tire and made it flat.

[Note: Animal excuses are always the best. Must have been a fast groundhog.]

This reminded me of an amazing list of excuses for tardiness and absences that we wrote about a couple of years ago, an incredible-but-true collection of dog-ate-my-homework excuses. They're worth revisiting:

• • •

This is a list of excuses given by one office worker for her absences, tardiness, and early departures. They were collected by her coworkers and sent to me via a trusted source. The numbers in parentheticals represent the times she has used that excuse. A few references have been edited to avoid compromising the identity of the accidental employee or her sometime workplace:

I have pinkeye (3)

my child has whooping cough (2)

I need to register my car with the DMV

my childcare provider has norovirus (the cruise-ship disease), and can't care for the children

my childcare provider is adopting a baby, and can't care for the children (4 total days off)

I have migraines (3)

my child has an ear infection (3)

I have a sinus infection (6)

I had food poisoning, or a family member did (4)

I need to be present for mold remediation in my apartment [actually, this one's pretty clever — JS]

my car was stolen (resulted in 3 days off)

my neighbor moved out, so I have to be home for the cable guy to come and reconnect my cable (3) [unclear whether the neighbor moved out multiple times — JS]

the airline canceled my return flight and failed to notify passengers

I have to be home for a plumber to fix a leaky pipe

I found an injured wild bird in my backyard and needed to bring it to a vet

I have an last-minute doctor's appointment (4)

my cat is in traction following an unknown injury [trying to picture this — JS]

I have an ovarian cyst (incorrectly self-diagnosed; turned out to be menstrual cramps)

my cat requires oral medication (had to leave early for 3 days)

my kids had a total meltdown and I just could not get them into the car (resulting in 14 late arrivals)

my other cat is suffering from liver failure [probably looking for attention after the other cat's traction deal — JS]

it snowed: kids refused to get into car until they were allowed to play in the snow for a while

unexpected visit from in-laws (husband forgot to tell her)

I have to be home for the electrician to come and fix an electrical problem [well, that is what they do — JS]

my daycare provider is just not feeling well (3)

my daycare provider is on holiday (2)

I am suffering from a virus (can't remember name of it, but did recall that it was a third-world malnutrition virus that was wiped out sometime back in the 1960s)

the starter in my car is broken (which my husband diagnosed over the phone)

I just need a day to clean my house (5)

I need to prepare for my child's birthday party (5)

I need to prepare for our vacation (5)

I need to accompany my husband to his eye-tumor medical appointment (turned out to be a stye)

I need to get my car reconditioned so that we can sell it (update: still has the same car 4 months later) [maybe a "For Sale" sign would help — JS]

my coworker made me laugh so hard that my asthma is acting up (2) [turnabout is fair play; wait to see how much the coworker laughs after reading this — JS]

It probably takes more energy to come up with these stories than it would to simply quit. If you have an employee like this, help him or her come to that conclusion. And if you've come across other dog-ate-my-homework excuses like these, post a comment.

Help wanted. Apply in July.

2009-02-25T11:50:58-05:00

The economic recovery is not going to be led by the President or by Congress. The recovery will be led by employers. By entrepreneurs who take the risks needed to innovate and grow and prosper. Right now, too many people are complaining about the banks and the tight credit market and the roller-coaster stock market. Too many employers have thrown in the towel, and have laid off half a million workers since Election Day in a desperate attempt to cut costs.

Employers, like almost everyone else, have focused too much on how to weather the recession and not enough on how to manage the recovery. Because the recovery will come. How are you going to get back to being an employer of choice when you laid off thousands of workers just months before?

It's time for employers to take a stand. Here's how to start:

Run a help-wanted ad. Not just a small classified ad in minuscule agate type. Instead, take out a display ad in your local paper — but not in the help-wanted section. Instead, choose Metro. Or Sports. Or even the weather page. (You should be able to negotiate a good price. The economy, you know.)

Put your company logo in it, large and in color. And write this:

HELP WANTED

We need motivated, professional workers to help our company grow in the upcoming economic recovery. Please apply in July, sending your résumé and cover letter to the address below. You can spend part of the next three months researching our company and making your submission perfect and unique. We can't wait to meet you!

Then watch as your company becomes one of the leaders of the recovery. People will talk. You might even find a need to hire sooner.

Economic crisis? Meet the cure: COBRA premiums

2009-02-24T00:29:00-05:00

If your company was one of those that laid off a combined half million employees in the past six months, you’ve already sent out a bunch of COBRA notices. Thanks to the Obama Administration and Congress, now you have to do it again.

Last week, President Obama signed into law the American Recovery and Reinvestment Act of 2009, commonly called the Stimulus Act. The new law weighed in at 407 pages and roughly $800 billion. Hidden in the thicket of “shovel-ready” projects is a provision that dramatically changes employers’ COBRA responsibilities.

COBRA continuation coverage applies to workers at companies employing 20 or more employees. When an eligible worker loses health-insurance benefits after leaving a job, COBRA provides the employee the opportunity to receive the same benefits for up to 18 months. Until now, the employee was solely responsible for the premiums.

But under the Stimulus Act, employers now have to pay 65% of the worker’s premiums for nine months. The federal government will then reimburse the employer by allowing it to take a credit on payroll taxes. In effect, though, the employers are lending this money to the federal government to help finance the economic recovery. Because in the lull between the recent Lilly Ledbetter Fair Pay Act and the upcoming, ironically named Employee Free Choice Act, it must have seemed like a good idea to pile on employers some more.

(The stock market seems to disagree, with the S&P 500 down 13% since the Inauguration and more than 20% since New Year's Day.)

The new COBRA subsidy does not cover every employee equally. The law phases out the subsidy for so-called “high-income individuals” — people making more than $125,000 a year (or $250,000 a year for married joint filers) — in a complicated scheme involving taxable premium reductions. And while the subsidy applies to workers who are “involuntarily terminated,” the Act does not define that term. The Conference Committee report suggested that people fired for gross misconduct would not be eligible.

What’s particularly tricky is that the Act reaches back in time to cover employees laid off since September 1, 2008 (and goes forward through December 31, 2009). That means that employers who sent out COBRA notices to laid-off employees over the past six months now have to contact them to give the workers another chance to elect COBRA coverage. A new and improved COBRA notice form is expected from the Department of Labor by March 17. What’s not clear is how to treat employees who got their COBRA coverage paid for as part of a severance agreement. Like the recovery process itself, this issue is a work in progress.

What you can do

Read the text of the Stimulus Act of 2009 (but not while driving or operating heavy machinery)
Immediately reexamine COBRA eligibility over past six months
Talk to your employment counsel about how to handle employees already laid off
Contemplate the seeming prescience in this quote from the end of the 1986 Stallone classic, Cobra:

      DETECTIVE MONTE
I personally would have looked for a more subtle solution, but that's not your style.
  (offers his hand)
No hard feelings.

      COBRETTI (after punching Monte)
No hard feelings.

How to lose a wage-and-hour case

2009-02-13T05:56:57-05:00

In our last post, we talked about eight ways for an employer to lose a noncompete case. Today, we cover something much simpler: how to lose a wage-and-hour lawsuit. It's really quite easy to do:

Just screw up an employee's pay.

That's all! No fussing, no mussing. You see, unlike in most any other kind of employee lawsuit, your employment counsel has no lawyer tricks to pull to defeat a wage claim. Either you paid the correct wages or you didn't.

In a disability-discrimination case, I can make technical, legalistic arguments about whether the employee is really disabled, whether he was otherwise qualified to do the job, whether a particular accomodation was reasonable, and so on. In a sexual-harassment case, I can argue that the sexual conduct wasn't egregious enough to alter the employee's working conditions, or that the conduct wasn't unwelcome (typical lawyer double negative), or that it wasn't even sexual conduct at all. Even in an overtime case, I have a shot. The federal Fair Labor Standards Act has so many exemptions and exceptions to exemptions and so forth that you can sometimes dodge that bullet.

But in a straight wage case, if the right wages weren't paid, it's "Goodnight, Irene." You're on the hook for the lost wages, and probably the employee's attorney's fees. In Massachusetts, you're looking at automatic triple damages. (See "Massachusetts: Closed for business.")

States take the payment of wages so seriously that they've created criminal penalties in addition to civil remedies (again, raise your hand, Massachusetts). The message is clear: don't mess with wages. Pay what you owe, pay it on time — especially around termination — and keep careful track of it. Otherwise, you're likely to pay a lot more.

Eight ways to lose a noncompete case

2009-02-06T23:28:00-05:00

You might think that with the economy in the tank, employers would be less worried about enforcing noncompete agreements and more worried about merely staying afloat. Not so. In fact, as the active workforce shrinks — unemployment jumped up to 7.6% today, and 600,000 jobs vaporized since New Year's Day (Reuters story here) — the battle for talent has actually become fiercer. To be sure, the number of reported decisions dropped off a bit in the latter half of 2008 (see chart). But anecdotal evidence suggests that employers' appetites for protecting their stuff and their peeps are still strong.

Over the past 11 years at Shepherd Law Group, we've worked on hundreds of these matters for employers on both sides — the former (enforcing) employers and the new (hiring) employers. We've seen a lot of different ways to lose noncompete cases, if you're the former (enforcing) employer. Here are eight:

Put your faith in the language of the noncompete agreement. I can't tell you how many times I've had lawyers for former employers tell me that they were going to win "because he signed the agreement." The court doesn't care what the agreement says if it's not absolutely necessary to protect the company's interests.

Try to enforce against any old employee. If the employee is not in a position to give the new employer an unfair advantage by taking confidential information or customer relationships, you can forget about enforcing it.

Make sure the noncompete is broadly drafted. Too many lawyers think that drafting an agreement is about trying to think up every metaphysical possibility and then drafting around it. They also think that it's OK to draft broadly if you include a provision that "allows" the court to scale back the scope of the agreement. That's mighty kind of you, but the court doesn't care about those provisions (often mistakenly called "blue pencil" clauses). More often than not, a court will toss the whole agreement if it decides it's too broad. And in some states, the court will automatically 86 the noncompete if it's even a little too broad.

Focus on geography, duration, and scope. Most lawyers remember from law school that you need this particular trifecta to enforce a noncompete, and they think the analysis ends there. While it is true that noncompetes that are overbroad in these categories will fail, that's only a table stake. What's more important is the necessity of enforcing the agreement to protect secrets or relationships.

Wait a while to file. The key to winning a preliminary injunction (which is the usual goal in a noncompete lawsuit) is to convince the judge that without it, your company will suffer immediate, irreparable harm. Waiting around to file makes that argument less persuasive. On the other hand ...

Ask for the injunction before you've developed enough evidence. Sometimes you can win based solely on the affidavits you supply, which you got from your internal investigation. But if your evidence isn't strong enough, it's better to take some expedited discovery (depositions, documents, computer and email records) before you ask for the injunction. You usually only get one shot at the prize.

Don't worry about which state to file in. I don't mean state of mind; I mean jurisdiction. Sometimes which state you file in can make a crucial difference in whether the agreement will be enforced. In California, as most lawyers know, you haven't got a prayer, while in Florida, noncompetes are presumptively enforceable.

Focus on the law instead of on the story. This is the most important lesson. Lawyers often fall in love with their legal arguments. But noncompete cases are equity cases, not law cases. To be sure, that distinction means less than it did a hundred years ago. But if you have a brilliant, clever, technical legal argument and an unsympathetic story, you are way more likely to lose.

Bottom line: If your client's wearing the white hat, and your agreement is narrowly drafted, and your secrets or customer relationships are in imminent peril, then you've got a fighting chance of winning. Otherwise, wave goodbye to the former employee and get back to work.

The pink-slip blues

2009-02-01T23:13:00-05:00

Great piece in today's New York Times discussing the pain of layoffs from the other side of the table. In "Handing Out the Pink Slips Can Hurt, Too," Matt Cooper, an executive at a recruitment-outsourcing firm called Accolo, describes his experience in letting people go. The article is well written and sincere. Matt writes:

It was gut-wrenching knowing that a bomb was about to go off. I had hired and trained many of these people. We wanted to be as humane as we could in letting them go.

I don't think anyone expects people to feel sorry for an employer who has to do the laying off; obviously, it's much harder on the laid-off employees. But it's worth remembering that most of the time, the people doing the terminations have taken it personally, too, and are doing it as a last resort.

Managers and employers: the more you can convey this to the people you are firing, the less likely they will be to sue you.

Another important lesson from the piece:

We offered as much severance as we could, and the other executives and I told the remaining employees that we didn’t want to close the door on those who lost their jobs. We encouraged them to reach out to their ex-colleagues and keep in touch. Then we all got on LinkedIn and wrote endorsements for those who were laid off.

It cost nothing to write those LinkedIn references, except a little bit of time and thought. But I'll bet that those employees appreciated it.

Well done, Matt.

Monday, Bloody Monday

2009-01-27T23:31:00-05:00

I was going to write something about the Supreme Court's decision Monday in Crawford, further expanding the ability of employees to win retaliation lawsuits, but that's going to have to wait. (For those who can't wait, a PDF of the decision is here.)

Instead, the biggest news on the workplace front was Monday's 70,000-plus employees' getting laid off by major US employers. Twenty thousand at Caterpillar. Another 26,000 at Pfizer. Eight thousand at Sprint, and 7,000 at Home Depot. CNN has an especially cheerful chart here breaking down the 207,000 workers laid off in 2009. (They also came up with the "Bloody Monday" reference, near as I can tell.)

We've already posted on the media's propensity to play up bad economic news (see "Fear sells"). And we still need to point out that the S&P 500 is up more than 12 percent in the ten weeks since November 20. (Granted, it had been up as high as 24 percent just a few weeks ago.) But these layoff numbers are too huge to ignore.

What can you say?

Over at KnowHR, Frank Roche's post "How in the Hell Do You Lose 71,400 Jobs in One Day?" sums it up well. And I particularly like his advice:

I wish I had some really great HR advice today. I’m a little shell shocked, but here’s what I’d say: For those of you who are still there ... kick ass. Do your best work. Stop going to meetings. Start doing things. Make money.

Now’s the time to do our best work.

I completely agree. I would add that HR professionals, managers, and executives need to get in the trenches and rally the troops (feel free to add any other militaristic metaphors you like). Fear is driving the economy, and fearful employees are not gruntled employees. Thus, fear diminishes profits.

Talk to your employees. Tell them that it's going to be all right, that we'll make it through this OK. Live together, die alone. (No, wait ... that's something else.)

Tell them to do one extra thing today that will help make the company more profitable. Make one extra call to get a sales appointment. Perform one extra quality check of a component. Think of one extra idea for innovation.

And then do it again tomorrow. And the next day.

Pretty soon, there'll be no more recession. And no more Bloody Mondays.

Layoffs: Do you want the good news first?

2009-01-25T23:25:00-05:00

Is it me, or are we seeing a trend in press releases and internal memos about layoffs? In announcing the layoffs, whether publicly or "internally and confidentially" (which these days just means publicly with a slight delay — who really, in this day and age, thinks these memos and emails are going to remain confidential?), the companies explain the layoffs, cite the recession, but then talk about how good their company is doing.

Do they ask the workers they're laying off, "Do you want the good news first or the bad news?"

Examples abound. A CNET article entitled "IBM quietly lays off North American staff" comes right after Big Blue announced a 12 percent increase in earnings. Cellphone maker Ericsson issued a release entitled "Ericsson Reports Strong Fourth Quarter," but laid off 5,000 workers worldwide. Internet News had this headline: "EMC Trims Staff Levels Despite Record Revenues." According to Above the Law, a sizable regional law firm issued an internal email talking about its "strong 2008" while announcing that it was laying off 6 percent of its lawyers.

Perhaps some of this is Churchillian stiff-upper-lip talk to rally the remaining troops (and investors). But it's a safe bet that many of the laid-off workers (as well as a lot of those still left on board) will be left wondering if the layoffs were truly necessary.

To be sure, the job cuts may help prop up profit margins right now. But companies need to remember that the recession will end. And on the other side, these companies might wonder why they're no longer employers of choice in the eyes of the talent they will then need to hire. People remember how they're treated on the way out, and they tend to tell other people.

Bottom line: make sure your messages are consistent. If you're laying people off, don't brag about how well things are going.

• • •

A language note: The verb — to lay off someone — is two words. The noun — layoff — is one, without a hyphen. The adjective — a laid-off worker — is hyphenated because it's a phrasal (or compound) adjective that precedes the noun. But the worker was laid off — no hyphen.

It's hard enough to do a layoff. It shouldn't be so hard to write about it.