Changing Corporate Culture, Increasing Productivity

MANY CORPORATE CLIENTS HAVE told us that too many of their employees are not sufficiently well motivated. Though such employees are often fired, their replacements frequently descend to the same level as those whom they replaced. "What's happening?" they ask. "Are we always destined to have employees who are under-motivated, who are clock watchers, and complainers?"

To increase employee morale and corporate productivity, you must dramatically alter corporate culture. Corporate culture comprises the values, ethos, and behaviors of a company. It affects how business is conducted, one's level of profitability, the time it takes to reach goals, and the responses of customers among various other important elements. To have a wellrun company that hums along smoothly and productively and employs dedicated and hard-working employees, you must design a corporate culture that nourishes such behaviors through a strategically implemented action plan.

Here's an example of a problem brought to us by one of our clients. The CEO had complained that a number of his employees were not highly motivated and were not reaching established benchmarks of productivity. In addition, they were a drag on their colleagues; by their complaints and overall negativity, they tended to sap the drive and ambition out of those with whom they worked. They never volunteered solutions, but always found fault with the way the company operated. Our client, of course, could and did fire such employees based upon their performance, but he was never really successful in replacing them with the kind of employees that would be ideal workers.

To determine what the CEO should do, we first conducted a survey of his workforce. Not surprisingly, it revealed a high level of discontent in about 32 percent of his workers. Many of them were perpetual fault finders, always looking for what was negative about the company and then complaining to their colleagues about what they discerned.

By contrast, within that same company, as in many other companies that we had also surveyed, were groups of individuals who were highly motivated, who enjoyed their work and took pride in their accomplishments.

Our client wanted us to help him clear out dead wood and put together a hiring and selection program that would result in his having highly motivated, positive minded employees who would significantly raise his level of productivity and so add to the company's bottom line. In other words, he wanted us to help him change his corporate culture.


Once the dead wood was cleared, we initiated a program for hiring productive workers. We hired employees based upon certain key attitudes as well as aptitudes and skills that conform to the sought-after work environment. In other words, prospective employees must have the type of positive attitude that will not only be reflected in their job performance, but will also be contagious to others within the workforce itself. Their aptitudes must also be appropriate for the jobs they will have to do. Aptitude and attitude must be complementary, for one without the other will only accomplish half the goal. And in many cases, if an employee has an appropriate aptitude for a specific job, but has a negative attitude, the company will not be well served. When the right combination of aptitude and attitude has been found, then one should also make sure that such a worker has the necessary skills to perform at a high level of efficiency and productivity. In addition to those qualities, we wanted employees who would feel as if they were part of a corporate family, who would take pride in being stakeholders in helping a company to reach its goals.

To further maintain a productive and satisfied workforce, we put in place a program of mentoring workers. Mentors coach workers to excel. They are thoughtful, helpful individuals who help workers to reach benchmarks of productivity. The coach-mentor is also there to make sure that there are no obstacles to a worker achieving success.

After our client implemented all of the above, levels of productivity dramatically increased and that went directly to the company's bottom line. The corporate culture had been refashioned and the workers thought the company a great place to work.

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Racial Code Words

It is no secret that many of today's bank tellers are women and people of color. Unfortunately, many of them are being terminated because of downsizing that has resulted from mergers, while still others are being replaced by the marvels of technology.

Terminated employees, unable to find new jobs, may seek judicial means of remuneration. Many are tempted to bring law suits charging age discrimination, sexual harassment and racial discrimination. In the past, the rules governing such suits have been quite clear. But now the rules are rapidly changing, and unwary employers may soon be the targets of highly expensive litigation. The reason is that a recent U.S. Court of Appeals ruling has dramatically changed the legal landscape, lowering the barriers for contemporary litigants so they can more easily sue their employers for racial discrimination than in earlier times.

For many years, it had been the law that the workplace be free of explicit racial epithets; however, that is no longer sufficient compliance. Employers, managers and supervisors must now make sure that they refrain from any words that can be cons1d as racial code words, even if one considers such words, on their face, to be benign.

Now, employers no longer have to express explicit racial comments to be the targets of actions brought under Title VII of the Civil Rights Act. Instead of voicing ugly racial epithets, one need only use such expressions as you people, poor people like you or one of them. All those expressions can now be considered racially charged code words that can land any bank, its managers and executives in legal hot water.

According to a federal case known as Aman v. Cort Furniture Rental, which has strong implications for the banking industry and was recently decided by the Court of Appeals for the Third Circuit, racially implicit code words can create a workplace environment that violates the civil rights of employees. The court found that racial code words can be used to establish an environment of racial discrimination.

Guarding the Workplace

The Court of Appeals stated that "while Title Ⅶ does not prohibit racist thought, the law does require that employers prevent such views from affecting the work environment....Title VII tolerates no racial discrimination, subtle or otherwise."

"While legislators have not written new laws about expressions that can be cons1d as racial code words, the Court of Appeals has made it clear that such expressions as you people, poor people like you, and one of them are indeed evidence of racial code words. It is, unfortunately, yet another example of the judiciary usurping the role of the legislative branch of government. In making that decision, it has put banks and others on notice that they must institute programs to prevent the expression of such words. Neither ignorance nor a lack of malice will be mitigating circumstances. If the words cited above (as well as others) can be interpreted as racial code words, then employers can be the targets of highly expensive litigation.

The rules of the workplace have not only changed, they have become slippery and open to individual judiciary interpretations. In order to avoid being targets of law suits under Title VII of the Civil Rights Act, all employers will have to formulate an employee handbook policy on the use of code words, give examples of code words that must be avoided, make supervisory personnel sensitive to possible interpretations of subtle code words, train them to correct such situations promptly, set up seminars or other means of communication for teaching employees about how to avoid the use of code words, and further, let employees know that any violations of such rules may result in termination or other sanctions.

As our civil rights laws evolve through judicial interpretation, it is essential that all preventive measures be taken not just to demonstrate one's good faith efforts, but also to maintain a strong defensive position. If one does not, then surely this will expose the industry to a stream of plaintiffs whose legal bounty will have negative effects on profitability.

A racially charged and hostile work environment can not only significantly reduce productivity by .diminishing worker morale, but it can also cost a bank large sums of money in litigation and subsequent settlements.

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Employment Practices Liability

Considering the Insurance Option

Over the past decade employment related litigation has burgeoned. New federal statutes such as the Americans with Disabilities Act and the Family and Medical Leave Act, the enlargement of remedies like compen-satory and punitive damages, and new and ever expanding ton theories advanced by the plaintiffs bar, have led many corporate executives to feel under a stare of siege.

Damage awards, particularly when punitives are involved, can run into the multimillions. Even a successful defendant may end up spending over $50,000 to defend a protracted litigation. In some cases employment suits have forced employers into bankruptcy or even dissolution.

It is therefore of the utmost importance for employers to be well versed on all potential measures they can take to reduce employment-related risk. One such measure is insurance.

Traditional Policies

Under certain circumstances companies and managers have been successful in obtaining coverage for employment claims under traditional insurance policies. These include Comprehensive General Liability Insurance (CGL); Director's and Officer's (D&O); Errors and Omissions (E&O); Fiduciary Responsibility Insurance (FRI); Workers' Compensation; Homeowners (for individuals); and excess insurance policies.

These forms of insurance are not typically offered by the insurance industry with employment practices litigation coverage in mind. Nonetheless, some courts have interpreted coverage terms very broadly. For example in Solo Cup Co. v. Federal Insurance Co., the Seventh Circuit held that a carrier had the obligation to defend allegations of discrimination under an excess Liability umbrella policy. While purely intentional acts were not encompassed within the policy definition of "occurrence," the court reasoned that claims of disparate impact discrimination were covered because that theory does not demand proof of discriminatory intent. Similarly, in Interco Inc. v. Mission Ins. Co., the Eighth Circuit determined that an insurer had a duty to defend alleged "intentional and/or reckless" act because recklessness could fall within the policy definition of occurrence. In other cases courts have allowed coverage of employee claims for emotional distress and mental anguish under "bodily injury" or "personal injury" endorsement language. Indeed, some plaintiffs' attorneys have had the acumen to recite the physical manifestations of alleged injuries in their complaints in the hope of accessing the deep pocket of an insurance company.

To counteract what the insurance industry views as overly broad judicial construal of standard insurance policies, many such policies now contain employment practices exclusion provisions that expressly disclaim coverage of employment related claims. Even policies which allow some employment claim coverage now virtually always restrict it to exclude many of the most frequently asserted causes of action.

Employment Practices Liability Insurance

However, in recognition of the need for protection in these employment litigation fraught times, in the early 1990s, insurance companies began to devise a new insurance product specifically designed to provide coverage for employment discrimination, sex harassment, wrongful discharge, negligent supervision, and work related defamation claims. Pioneers of this new product, known as Employment Practices Liability Insurance (EPLI) included Reliance Insurance Company of Illinois, Lloyd's of London. Chubb & Sons Inc. and Lexington Insurance Co. Today over 50 carriers offer some sort of EPLI product.

Since EPLI is relatively new, the policy is far from uniform. Insurers offer widely ranging kinds of coverage at vastly different rates, making comparison and selection difficult for the consumer.

The starting point for a cost-benefit analysis is usually cost. In the current mar-ketplace, premiums for EPLI start in the neighborhood of $4, 000 but are more typ-ically in the range of $10, 000 for a medium size concern. Available deductibles can be as low as $I, 000 to $2, 000 or as high as $20, 000 to $25, 000 per claim. (Price and deductible levels are in a stale of some flux as carriers are just beginning to garner adequate actuarial data to appropriately cost this new product.)

Benefit analysis is a highly individu-alistic and involved affair. It is a vast oversimplification to say that the most expensive policies are the best, since the degree and nature of protection needed by every organization differ markedly.

Notably, while your insurance bro-ker may with the best of intentions endeavor to find an EPLI policy that fills the gaps in your firm's insurance portfolio, agents rarely have the legal know-how to guide you towards policies that will provide effective projection in the rapidly transmuting terrain of employment law.

For one thing, the precise language used to define terms such as "the insured," "an insured event," "claimant," "claims," "loss," and "damages" on the policy will be of critical consequence in the context of employment litigation. To illustrate, should comprehensive protection of indi-viduals be desired, the definition of "the insured" should include not only the corporate entity, but current, former and prospective officers, directors, managers, nonmanagerial personnel and perhaps independent contractors.

If the company wishes to pass along the risk of costs for all kinds of claims, the definition of claim must cover not only lawsuits instituted in courts of laws, but charges filed with the Equal Employment Opportunity Commission and counterpart state and local agencies.

To ensure extensive loss indemnification, the "loss" and "damage" definitions should encompass sums paid in settlement, attorneys' fees awarded to plaintiffs, pre-judgment and post judgment interest, defense costs including expert and witness fees, front pay, pack pay, compensatory damages, and (if possible) liquidated and punitive damages. The extent of policy limits is also of key importance. The broadest possible definition of employment prac-tices violations may additionally be advisable. Employment counsel should be consulted to ensure that the kinds of claims to which your company is vulnerable are comprehensively covered.

Indeed at such point as your firm is seriously looking into the EPLI, it is imperative that it seek the advice of counsel with employment law expertise. Your attorney will be able to scrutinize the policy with an eye towards issues which, as noted earlier, agents are likely to be unaware of and even the most knowledge human resource and risk managers may not consider.

Customize Your Policy

The EPLI policies on the market are rarely offered on a take-it-or-leave-it basis. Terms can -- and should -- be negotiated.

One provision that is frequently a subject of negotiation relates to defense counsel. A major benefit of insurance is the duty of the provider to defend, which is broader than the duty to indemnify. In exchange for this benefit, policies virtually always provide that the insurer will select counsel and maintain control of the litigation.

Many employees are just as happy to let their carrier choose counsel. (Presumably, the insurance company will retain reputable and skilled attorneys.) Other employees may not have a preference for a specific law firm, but do want to at least participate in selection of counsel. Still others feel very strongly about using attorneys whom they know and trust. Whatever the case, negotiation of the selection of counsel provision to make it more flexible may be worthwhile. For instance, the policyholder might be able to get approval of its own lawyer if it agrees to pay any portion of the fees which may be higher than the rate charged by the insurer's attorney.

Evaluating the Employment Practices Liability Insurance Option

Ultimately, whether employment practices liability coverage is worth the cost is a highly individualized analysis which each enterprise must make for itself. However, any decision should include consideration of the following four factors.

Risk Vulnerability: Can your company afford to gamble? To what extent does it have the financial resources to weather several protracted litigations or a sizable loss? If a company can afford the expense of EPLI coverage but could not sustain a large damage award, insurance may be the product alternative.

Past Claim History: Have employment claims previously been filed against the company? How often? What monetary awards or settlement sums have been paid? Importantly, what is the trend of claims? A company which had numerous claims filed against it in the 1980s, but which received only a few in the early 1990s, and none for several years, probably has less of a liability concern than a firm that has received far fewer total complaints but which has witnessed a claim increase over the past five years.

Workforce Composition: What is the constitution of the workplace? Anyone can assert a contract or tort claim but discrimination laws largely protect specified classifications of employee. How have individuals in those protected classes fared at the company? Have a disproportionate number of older workers been paid off in recent years? What is the company's promotional record? Do women and minorities compose a large percentage of the rank and file, but only a small percentage of management? Such circumstances may not in fact result from discrimination but they present a picture that they will help plaintiffs establish a prima facie case.

Personnel Policy and Procedure: Does the firm undergo regu-lar personnel policy and procedure audits? Does it have a strong human resource department, an up-to-date employee handbook, well publicized antidiscrimina-tion and antiharassment policies and a fair and effective internal grievance system? To the degree good human resource practices exist, litigation risk is lessened. But the reverse is also 1.

After careful evaluation of the above four factors, a company may determine that the cost of EPLI is a worthwhile investment. Alternatively, the employer may choose to channel its resources towards risk preventive measures such as the reassessment of dismissal and promotional criteria, careful monitoring of internal employee complaints, and the overall strengthening of personnel policies. Most important, the employer must ensure that its human resource department has the sufficient expertise, authority, and funding to be a truly effective agent of risk reduction.

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How to Increase Productivity and Reduce Labor Unrest

Abstract By altering an organization's hierarchical structure and making its employees feel as if they are participating in management, a company can decrease labor strife, increase productivity, and reduce personnel turnover. The Author presents the employee involvement matrix which can aid a management team in implementing employee involvement programs that will be successful at different levels of sophistication. The matrix utilizes two continuums: the employee involvement continuum, which contains the various types of participation; and the learning continuum, which specifies the skills that are required in order to implement a given level of involvement.

Keywords Employee involvement, Staff turnover, Productivity, Participation

Many old-line companies have a hierarchical structure in which directives are issued from top to bottom. It is not unusual for such companies to experience periodic labor strife, which brings with it a concomitant reduction in productivity and revenue. Labor is what companies want to prevent, but it is an integral part of a hierarchical corporate culture.

My experience with numerous clients over the last two decades has shown me that by altering its hierarchical structure and making its employees feel as if they participating in management, a company can decrease labor strife, increase productivity, and reduce personnel turnover.

Prior to changing a corporate culture, supervisors -- who reflect the views of senior management -- must learn new modes of behavior. Invariably in an authoritarian hierarchy, supervisors are expected to achieve certain rigidly sanctioned goals. Their roles may consist of checking off the names of morning latecomers, keeping close tabs on daily production quotas, and inspiring workers by instilling fear and insecurity.

After participating in training program aimed at team building and increased employee involvement, however, supervisors can be transformed into team leaders who coach and mentor workers, giving them a sense of pride in their accomplishments, Where supervisors and workers once followed rigid formulae, now they can be encouraged to be flexible and creative, to use their own best judgment, and to pitch in and help colleagues. Management and employees work together which a common mission: to make the company a better place to work. The end result goes beyond increased productivity and profitability to produce enhancements of company products.

Such successes, however, cannot occur without first changing the corporate culture. Experience has taught us that a number of initiatives are essential for improving workforce morale:

  • Developing a written, one-year plan for improving workforce morale.
  • Creating flexible task forces to handle every workplace issue.
  • Evaluating employee opinions on new ideas, tactics, and strategies.
  • Defining the existing corporate culture, through the use of contemporary surveys, so that the views of employees mesh with the company's financial goals.
  • Deciding how much to budget for training so this initiative can be an integral part of all future budgets.
  • Establishing a system for evaluating the success of both existing and future proactive endeavors.

Instilling enterprise-wide change

Three factors must be in place if the enterprise-wide change initiative is to succeed: a methodology for successful communications, an understanding of the various employee involvement activities, and senior management's commitment to cultural change.

A methodology for successful communication is essential if a corporate culture is to become flexible and open to change. A sophisticated method of workforce communication can help change the corporate culture and maintain those changes over time. Without back-and-forth flow of communications, a clearly defined corporate identity and purpose will become blurred, resulting in ambiguous expectations. It is essential that all workers feel they understand where their company I headed and how it plans to get there. There is a direct an axiomatic link between good communication and significant increases in productivity.

All businesses, regardless of size, have two distinct cultures: a management culture and an employee culture. For the most part, companies tend to operate under management's agenda, unaware of the employees' agenda.

Communications should serve to unite these cultures. The unification of divergent agendas is the key to any successful, long-term human resources strategy. Thus, communication is critical in any effort to achieve productivity gains while enhancing morale, which usually run on parallel tracks.

To create a truly effective change initiative, communication strategies must be blended with employee involvement initiatives. The employee involvement matrix can aid a management team in understanding employee needs and goals. (See Exhibit 1.) The matrix helps company leaders focus on what they must do to implement employee involvement programs that will be successful at different levels of sophistication. The matrix takes in to account organizational conditions, management commitments, and workforce skills; and it provides a guideline for the realistic and appropriate degree of employee involvement.

The basic concept underlying the matrix is that increased levels of employee involvement cannot be accomplished unless adequate employee and management sills exist. Increasing employee involvement can be attained as company-wide training levels and organizational conditions improve and become more sophisticated.

The matrix (See Exhibit 1.) utilizes two continuums to project an appropriate level of employee involvement for a particular company. The horizontal continuum, labeled "Employee involvement," contains the various types of programs. The first program, cooperative goal setting, is the least complicated and requires the least "cultural commitment" on the part of the company. The continuum progresses to program No. 10, which is employee ownership and control.

"[If real cultural change is to occur] there must be a genuine commitment by management to a meaningful level of employee involvement as part of its ongoing business strategy."

The vertical continuum on the matrix is the learning continuum. It specifies the type of knowledge and skills that will be required throughout the company in order to implement a desired level of employee involvement. The learning continuum has five general areas, ranging from interpersonal relations to business process.

To determine the reasonable level of employee involvement in a given company setting, management should begin at program No.1 on the employee involvement continuum and work upward.

If employees are already involved at given level -- cooperative goal setting or an employee idea system -- and wish to do more such as convene focused task forces, the group process and problem-solving skills shown in the next section of the learning continuum would have to be in place before that new activity could be attempted.

The basic premise of the matrix is that successful implementation of employee involvement at any level must be preceded by requisite workforce skills and managerial commitment.

The final factor in the success of the cultural change process is commitment by management. Simply instituting training on the skills in the learning continuum will not be sufficient. There must be a genuine commitment by management to a meaningful level of employee involvement as part of its ongoing business strategy. A constant re-evaluation of the level of cultural commitment by management is essential to moving further along the employee involvement continuum.

Employee involvement continuum

  • The employee involvement continuum progresses through ten steps of increased involvement.
  • Cooperative goal setting -- the joint establishment of goals b each individual and his or her supervisor after mutual discussion. Goals are set and reviewed on a work-cycle basic.
  • Employee idea system -- a managed and funded program, which provides formalized feedback and includes a reward system. The program results must be highly visible for maximum success.
  • Focused task forces -- the convening of a group to work on a specific issue of set of issues and to recommend alternative solutions within a given time period.
  • Problem-solving teams -- work-unit teams that spend a specified amount of time each week trying to solve identified work-related problems.
  • Cross-functional groups -- problem-solving at interdepartment level with representation from various group functions within the work environment.
  • Union management committees -- can be considered if the employees are represented by a labor union. Joint union-management involvement will help to maximize union participation in all phases of employee involvement.
  • Process improvement groups -- selected groups to solve macro-level problems and improve key enterprise processes, such as product development, quality control, marketing, and distribution.
  • Self-managed work teams -- unsupervised teams of individuals working together for the purpose of improving skills, rotating jobs, and making work-related decisions that affect the total team.
  • Entrepreneurship -- creating opportunities for employee to implement innovative ideas, including designating a special team to pursue an idea, accepting the risks, and appointing a champion to execute the idea within the organization.
  • Employee ownership and control -- employee ownership of all or part of an organization or subsidiary within that organization. Increasing degrees of ownership can improve a business's profitability.

The Learning Continuum

The Learning Continuum denotes the skills and processes necessary for each level of employee involvement.

A. Interpersonal relations involves five skills:

  • Team building -- creating and sustaining high-performance oriented teams.
  • Effective meetings -- conducting purposeful and productive meeting and methods of meeting planning, leadership, participation, and follow-up.
  • Leadership styles -- understanding and practicing leadership styles and straits and the factors that make certain styles more effective.
  • Motivation theory -- knowledge of what motivates individual human behavior, e.g. personality, needs, expectations, dependency/maturity theories.
  • Communications skills -- understanding and practicing effective, two-way communication, e.g. listening, writing, speaking, and giving and receiving feedback.

B. Group process involves four skills

  • Presentation skills -- techniques for preparing and giving a persuasive and effective presentation.
  • Data gathering/organization -- methods of collecting data such as surveying and interviewing, and methods of organizing and presenting information.
  • Group problem solving -- utilizing group problem-solving techniques as compared to the individual-solving process.
  • Group leadership -- analyzing how people behave in groups, what constitutes a group, and the roles of a group's leaders and participants.

C. Employee relations consists of four types of learning:

  • Stakeholder analysis -- analyzing the goals, motives, and behaviors of all internal and external stakeholders of a given enterprise and determining how to maximize mutual benefits.
  • Conflict resolution -- understanding, mediating, and resolving conflicts between groups.
  • Negotiation -- methods and strategies for achieving win-win results in negotiations and avoiding the zero-sum game.
  • Collaboration -- comparison of cooperative versus competitive strategies and their relative impact on goal achievement.

D. Organization analysis includes three processes:

  • Work and job design -- coordination of the interrelationship of jobs, workflow, and other factors in orders to improve quality, productivity, and employee commitment.
  • Organization structure -- design of organization structures to meet current and future economic and technological demands.
  • Systems/process analysis -- identifying and solving problems utilizing macro-level processes, which promotes the attainment of key business objectives.

E. Business process contains four skills:

  • Risk analysis -- pinpointing and quantifying risks in given enterprise and determining acceptable risk levels and trade-offs.
  • Life-cycle analysis -- identifying the critical steps in the development of strategies, plans, markets, products, and technologies to ensure their ultimate success.
  • Cost/benefit analysis -- methods and techniques for determining cost factors and projecting real and probable benefits in implementing new business ventures and technologies.
  • Business systems -- analyzing the goals, inputs, processing requirements, outputs, constraints, and feedback mechanisms in a business operation in order to maximize. Efficiency and effectiveness.

We have seen the implementation of this broad initiative effectively change the corporate culture of many companies, unifying the agendas of management and employees, Sustained through the proactive implementation of flexible communications programs, the resulting corporate cultures have achieved a significant increase in productivity, very low levels of personnel turnover, and an absence of labor unrest.

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Mental Disability

The question that causes the greatest concern is whether, under the Americans with Disabilities Act, employers risk liability for firing employees who function poorly or engage in disturbing, disruptive, possibly even threatening, behavior in the workplace. Adding to the anxiety is uncertainly over what kinds of cognitive or psychiatric conditions are covered by the disability discrimination law.

Who Is Mentally Disabled?

The ADA itself does not define mental disability. Enforcing regulations issued by the EEOC describe mental impairments as any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and learning disabilities. However, such conditions must be severe enough to substantially impair one or more of an individual's "major life activities" to constitute a disability.

Cognitive impairments having a physiological basis tend to be the most readily identified and quantified mental disabilities. These would include conditions such as neurological damage, autism, dementia, retardation, and learning disabilities.

Mental illness and other emotional disorders, however, have been dealt with inconsistently by the courts. The majority require employees demonstrate that their conditions truly incapacitate functioning. Moreover, the impairment must be long term. The best approach to take, accordingly, is to assume that any worker who might reasonably be viewed as mentally disabled is covered.

Can Employees Fire Mentally Disabled Workers Who Are Disruptive, Violate Work Rules, or Fail to Meet Work Standards?

One thing is absolutely dear under the ADA: A worker who is mentally disabled cannot be fired because of prejudice or stereotype-based assumptions about how he may function or what he might do. For instance, a company may not discharge someone with autism because fellow workers (or even customers) are made uncomfortable by his inappropriate gesticulation or comments. Nor can a worker with an illness like paranoid-schizophrenia be fired because the employer surmises that any such individual poses a threat to company safety.

Nevertheless, an employer will usually be able to mount a solid defense to an ADA claim where an employee has engaged in consequential infractions of important rules (as opposed to simply breaking protocol) or seriously disrupts the workplace.

On the other hand, the issue of how to treat employees who simply cannot meet work standards is far trickier. If the employee is utterly unable to perform the essential functions of his job or poses a hazard to other workers or third parties, he will be deemed not qualified. Thus a federal court recently dismissed the case of a hospital technician whose mental condition rendered him unable to properly monitor vital medical equipment.

Yet most cases do not involve extreme or dangerous dereliction of duty. If the employee is simply performing below par because of a known disability, the employer will more than likely have a legal obligation to accommodate him.

How Must the Employer Accommodate the Mentally Disabled?

The ADA mandates accommodation of disabled employees, even unqualified ones, if accommodation would enable them to perform the essential functions of their jobs. The problem is that accommodation for people with mental disabilities 'is usually hard to conceptualize. Unlike accommodations for physical impairments -- which may simply require a mechanical solution like making a work station wheelchair accessible -- accommodations that might compensate for the limitations of cognitively and psychologically impaired persons require a greater degree of imagination and employer flexibility.

Employees having difficulty coping with the stress of certain job assignments might be accommodated through job restructuring, partial at-home work time, reassignment, reorganization of work space, or allowance of periodic work breaks. One interesting form of accommodation was noted in a First Circuit.

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Motivating Employees

Empowerment and team management are buzzwords of the '90s. Those companies that practice them justify their use based on the motivational theories of the early 1960s. But the world of work has changed dramatically since the '60s. This is not to suggest that the Hierarchy of Needs or the Two-Factor Theory is no longer accurate. Rather, these theories have to be looked at from the perspective of the '90s.

Maslow argued that lower physiological, safety, and social needs had to be satisfied before individuals could focus on meeting their higher level needs. Herzberg contended that dissatisfiers had to be dealt with before motivational factors could stimulate performance When Maslow and Herzberg published their theories more than forty years ago this sequencing didn't represent a problem -- there were layoffs, but employees could expect soon to be rehired; companies were not going through the transition they are now, so dissatisfiers weren't a major problem, either. Bur today, due to downsizing and restructuring, the lower needs of Maslow's hierarchy and the hygiene factors in Herzberg's Two-Factor Theory are no longer givens. Just the opposite.

Remember that when Maslow and Herzberg shared their research findings, Maslow reported that U.S. workers were 85 percent satisfied in their physiological needs, 70 percent satisfied in their safety needs, and 50 percent satisfied in their social needs. Today, with downsizings announced almost daily, could we say the same?

It seems that our boundaryless organizations are seeking through concepts like teams and empowerment to meet self-actualization needs at the same time that many employees feel that their job security (that is, a safety need) is threatened, and still other employees feel that their contributions are not being recognized (esteem needs). Likewise, if we consider Herzberg's Two-Factor Theory in light of today's restructured organizations, we see broad acceptance of the idea of motivation factors but less consideration given to the dissatisfiers: Job expectations are unclear, workplaces have become literally sweatshops, with employees expected to do too much in too little time; in an effort to give employees freedom to use their initiative, supervisors and managers often don t give them sufficient direction; and there is lots of talk but not much communication.

Even if we discount Maslow's contention that lower-level needs have to be satisfied before loftier issues are of importance to employees, we still have Herzberg's contention that failure to address the dissatisfiers can demotivate employees. Consequently, if we're to get the benefits of allowing our employees to have a greater participation in decision making, we have to address these hygiene or maintenance factors. If we are to make our restructured, team-based organizations work successfully, we need to reexamine our own operating styles to see how they can support the basic needs and maintenance factors while also managerially and organizationally responding to people's higher needs and wants. Maybe this involves the application of plain old good supervision

Freeing Workers to Flourish

Translated into day-to-day actions, motivating employees and allowing them to thrive in the new environment means ensuring that, as they leave their plants or offices each day physically tired, they do not have their minds filled with questions like these:

  • Will I be able to keep my job? (Even knowing that the answer is not is better than not knowing at all.)
  • How have my organization's expectations of my performance changed? What can I do about it? Training?
  • Will my pay be affected? (If it will be, employees want to know so that they can act, not react.)
  • Will I be demoted? (So long as there are opportunities to learn the skills to help the employees eventually return to his or her current position, even a yes answer will be appreciated. Better to know than to spend sleepless nights worrying about it.)
  • What role will I play in this team? Am I fully contributing?
  • If you fail to provide answers to questions like these, you open the door to nagging doubts job security and expectations. You also contribute to budding cases of employee burnout when you:
  • Give your employee an unclear assignment.
  • Play favorites.
  • Provide unclear or constantly changing work requirements.
  • Withhold information so that, employees don't have a clear picture of a project or problem.
  • Fail to deliver on promises or agreements.
  • Fail to support an employee's efforts by providing necessary money, staff, equipment, or other support.
  • Nitpick about work performance during a tight time crunch.
  • Hog the credit for yourself when you could just as easily share it.
  • Demand that too much be done in too short a time.
  • Change any job requirements without letting the employee responsible for the work now.
  • Grant authority that is not commensurate with the responsibilities you've assigned an employee.
  • Give an illogical assignment to someone whose to-do list is two pages long.
  • Fail to trust your employees or credit them with intelligence or creativity; demean them.
  • Shirk from making decisions that are critical to employee's completion of their work on time.
  • All of these managerial misbehaviors are tied to the distressors and reflect satisfaction of hygiene needs.

Some Managerial Do's

Besides these don'ts, there are a number of do's that can minimize the feeling of stress your employees are experiencing. The following guidelines recognize the need to satisfy lower-level motivational needs as well as higher ones, hygiene factors as well as motivational ones. They reflect the new partnership between employees and their organizations in which employees are responsible for taking the initiative to develop and enhance skills and are expected to actively seek ways to help sustain and grow the business. Managers' responsibility, in turn, is to:

Provide regular feedback. With constant but informal feedback, you can keep your employees from worrying unnecessarily about their job performance. You can also keep them from taking the wrong tack with a particular project and not becoming aware of this until after the project is completed.

Learn to say "thank you" regularly. In doing so, be specific about The behavior you are acknowledging compared to a "thanks for all you've done" will mean nothing compared to a very specific "thank you for putting in those extra hours yesterday evening to ensure that the potential customer received the project in time. It enabled me to the prepare a better presentation, so we got the account," note how this comment not only states exactly how the employee contributed but describes the impact of the employee's actions on your actions and the organization's objective.

Distribute rewards fairly. Employees want to be sure that they are as eligible for the rewards as the next person; that is, that there is no favoritism about whose work gets acknowledged and rewarded.

See that employees get the resources they need to do their work. They need not only the right equipment (they don't necessarily need the most up-to-date; they need the equipment that is best suited to the work they will be doing) but access to people who can lend a hand.

Look at job assignment as a means of increasing employability and promote it as such. While you can't promise job security -- who can, in these days of downsizing -- you can provide opportunities to increase an employee's value to your organization or, at worst, improve his ability to find another job should he lose the current one.

This may sound like management basics, and it is. But team management and empowerment need the foundation pf these basics for them to work.

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Labor Days

The perception exists that it is difficult to create and sustain labor programs. In fact, it is not more difficult in unionized companies than in non-unionized ones. In both instances, management must make an ongoing commitment to proactive, preventive programs.

To begin, management must create an action plan. Most companies have a business plan; but, unfortunately, most companies do not have a corollary labor relations plan, regardless if they are union or non-union.

The action plan must recognize that, in order to minimize the possibility of labor relations problems, new leadership roles must be instituted that create dynamic workplace relationships. For example, too often management focuses on what it says, not on how it is said. Management must treat employees as it treats those with whom it has personal relationships. If employees perceive management as intimidating, an adversarial relationship will develop, along with concurrent resentments.

All in the perception

It is far better for management to engage employees in an ongoing dialogue rather than in a one-sided monologue of directives. Employee perceptions also are extremely important, for positive perceptions will significantly enhance employee relationships with management. There are seven essential perceptions that strongly influence the way employees will feel about their workplace and management:

Employees must perceive that there is effective communication between management and employees, and effective communication includes management asking, not telling;

Employees must perceive that the companys policies and practices meet the needs of the workplace and, in particular, satisfy the individual needs of employees;

Employees must perceive that they like where they work, that they enjoy going to work, it is what produces positive morale;

Employees must perceive that everyone is working to achieve shared goals, that there is an effective commitment to teamwork;

Employees must perceive that management can be trusted to honor its promises;

Employees must perceive that ages and benefits are comparable for similar work in the area;

Employees must perceive that the company provides training for employees not just to do their jobs, but also to do their jobs well and to facilitate the opportunities for advancement.


Employee surveys not only demonstrate that management is listening, but also provides an effective opportunity to build consensus.

In most employee surveys, anywhere from 30 to 40 percent of employees express a variety of negative feelings, which are often cries for help. Among the most common concerns: confusion about work assignments, frustration about certain working conditions, feeling oppressed by management, feeling that management does not listen, and feeling that management pays only lip service to my concerns.

To achieve acceptance, management needs to have a critical understanding of employees. It requires compromise, coalescence, and consensus.

Without a consensus between management and employees, there will always be the prospect for a heated adversarial relationship blowing up the most carefully laid tracks that had been constructed to reach corporate goals.


Once management and employees come to a mutual understanding about how to create better efficiencies and increase productivity, they will share a clear understanding of the drivers that increase success. They will, in other words, be part of the same team.

One thing that makes teamwork successful is recognition. It is essential that management recognize employees, repeat that recognition, and reinforce that recognition.

Equally important is an Employee Advocate Representative (EAR) program. A designated employee, one mutually agreed upon by management and employees, becomes the EAR. This peer person would be available to assist employees with problems. In establishing the program, management demonstrates its commitment to addressing its employees concerns. The initiative has greatly improved workplace environments, and it isnt expensive. The return on such an investment, in fact, has been tremendous.

Being part of a team also makes employees feel that they are stakeholders in a company. Stakeholders believe that their economic well-being is directly tied to overall company performance. Stakeholders are excellent team players who enjoy the benefits of increased profitability and accept responsibility for increased costs.

By fostering a culture of effective communication and a consensus of shared goals, everyone becomes integrated into a successful corporate culture. From this will come a sense of teamwork, of everyone being in this together, of the elimination of the Us versus Them paradigm. Such an atmosphere will ensure increased productivity and profitability as a result of significantly reducing the likelihood of labor unrest not just in the coming months, but for many years as well.

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Labor Costs and Red Ink

As a labor relations attorney who regularly negotiates union contracts on behalf of employers, I was surprised and somewhat skeptical when union announced after the 9/11 terrorist attacks that they would work with corporate American to ensure profitability during a period of national catastrophe. Sadly, my skepticism turned out to be an accurate assessment, for unions had merely been paying lip service to patriotic expectations. Since shortly after 9/11, unions have once again begun making unworkable demands and, in some cases, even threats that, if successful, could cripple numerous American companies, particularly those in such essential industries as airlines.

Labor costs are some of the highest expenses that corporate American faces. And without more cooperation from unions, some companies will be spilling red ink over their bottom lines.

Many manufacturing companies, for example, have watched their market stagnate, and they cannot afford to meet union demands for higher salaries and more expensive fringe benefits, including greater contributions to retirement plans. Recently General Electric, for example, faced a union sponsored national strike that demanded the company make greater contributions to medical insurance payments, which would have amounted to many millions of dollars that the company could ill afford. As a result of the union's action, GE's rate of production dramatically slowed and its workers lost wages; yet union leaders lost nothing. There are far better options than those initiated by the union against GE. There invariable exists a common ground on which both management and labor can come together because of their shared interests. What happened to GE, unfortunately, has happened and will continue to happen to numerous other companies as well.

While unions are generally perceived as working on behalf of their members, they do very little to contribute to the economic well being of the nation as a whole. Unions are business unto themselves; they extract dues from member who are their profit centers. Unions do not manufacture goods or offer essential services to the public, yet in many cases they have managed to intertwine themselves so thoroughly into the fabric of much of corporate America, that they cannot be easily removed without destroying the entire fabric. Indeed, in many industries, unions are so much part of the operating system that they exert life and death control. To counter that power, many workers have sought to decertify their unions for fear that their unions could no longer achieve their goals.

As everyone knows, the terrorist attacks of 9/11 caused a significant downturn in the economy; everything from transportation to manufacturing, from hotels and restaurants to retail sales has suffered. Wherever one looks, profits are down, the stock market is down, and pension funds are down.

Unlike the 1990s, companies are struggling to survive and need all the help they can get. It is certainly not the time for unions to burden companies with increasingly onerous labor costs. In such dire circumstances, one would turn their patriotism into reasonable policies that would preserve the jobs of their members. While unions did make some concession, they were often too little and too late, such as at United Airlines and US Air. At other airlines, the situation was also dire: Northwest Airlines lost hundreds of millions of dollars as a result of higher fuel and labor costs. And a strike at one of Deltas subsidiaries cost the carrier $4-million a day! The operating deficits caused by fulfilling union demands are, unfortunately, prefaces to too many corporate obituaries.

In the world of manufacturing, the number of manufactured goods has been stagnating for some time. Yet, union demands continue to grow. Since manufacturers are suffering from stagnating profits and revenues, how then can they be expected to increase wages and benefits, while also ensuring that no workers will be laid off? In a world of such demands, there is no relation between cause and effect, between profits and salaries, between realistic goals and pie-in-the-sky goals.

One would have thought that unions had learned from previous experiences:

The history of the labor movement is filled with unions' missed opportunities to cooperate with management in order to achieve shared goals. One need only glance back at earlier recessions to evaluate the role of unions in the demise of Braniff, Pan Am, and Eastern airlines. Bankruptcies soared and unions often did not make any effort to improve difficult economic situations until it was too late. In the steel industry, one company after another (such as Bethlehem Steel) declared bankruptcy and formerly well-paid steel workers joined the unemployment lines. Indeed, one can cite chapter and verse of union demands that had grown shrill and unrealistic, of strikes and slowdowns that sounded death knells for companies. Unions had initiated lose-lose scenarios; with their eyes closed to the future, they had choreographed their own dances of death.

It was no wonder that union membership steadily declined, and that manufacturers opened factories in third world countries where labor is comparatively cheap. Other companies moved from heavily unionized mid-western and mid-Atlantic states to less unionized right-to-work state in the United States.

Yet, for many other companies in a wide array of industries, labor costs now are the foremost obstacle profitability. If those companies are to survive and be self-supporting, they must now be given the opportunity to reach reasonable and balanced agreement with the unions representing their workers.

No union should be permitted to close down a company, especially when the economy of the country is in such precarious straits as a result of being attacked and facing war. To keep the country strong, it is essential that workers do not lose their jobs, and unions play an instrumental role in saving those jobs.

Unions may make patriotic statements, but if their actions are not consistent with their words, they are simply undermining the stability and growth of companies that not only employ millions of workers, but whose success will benefit all Americans and keep American competitive.

As I wrote in my book, Everybody wins!, "I have dedicated my professional life to clearing the air between the protagonists in the management-labor field, not taking the easy, complacent, unproductive stances that others may have seen fit to take. And I would like to carry on the challenge, not just in this country but abroad, too. The challenge, it's obvious to me, has only just begun and it's far too early for anyone to be complacent." There's just too much as stake, and too little time left to achieve it.

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United We Stand

To win in the world economy, we must develop a new and productive entente with organized labor -- that historic adversarial relationship -- by doing eight things:

  • Business and labor must adopt new criteria in dealing with one another. The old adversarial relationships have produced distrust. Unions have competed with management and other unions in a game of bargaining one-upmanship, creating an endless inflationary cycle. Despite managements perennial position (We cant afford it!), the unions were almost always able to push their demands through. What emerged was a tradition of distrust. Negotiations often boiled down to a brutish animosity indulged by both parties. What is needed is a united front against the erosion of productivity and foreign competition.
  • Business must adopt new criteria and make new judgments. Management has generally refused to allow its workers any voice in making decisions of policy or strategy. Little wonder, then, that eroding worker motivation has contributed to lagging productivity and declining quality. The more indifferent managers are to employees, the more intransigent and resentful the employees become.

    Business seems to recognize its obligations to its workers only when a crisis develops, when a companys fortunes lag, when it is about to be struck. To improve its relationship with labor, business must adopt a new, enlightened attitude toward its workers and implement it in meaningful ways -- more candor, greater consideration, and a sensitivity to individual needs.

  • Labor must defuse its internal political problems. If unions are to deal with management realistically, they must first stop breeding adversarial attitudes within their own ranks, between local unions, and between industry-wide unions seeking to encroach upon each other. Internal strife prompts a militant stance toward management and results in unrealistic demands on business. Four other changes are worthy of organized labors attention: 1) a new era of democracy must begin with a move toward more useful dealings with management; 2) rank-and-file should be told of the 1 situation about employers ability to meet with new wage demands and whether they need concessions from the union; 3) politics within the local should not set those demands but should ensure that leadership, policy, enforcement, bargaining, solicitation, and general procedures represent the viewpoint of the majority; and 4) younger people, women, African American, and Hispanics on the union rolls need to be heard.
  • The challenge of job security must be attacked head-on. During recessions, jobs are eliminated, and many workers panic. Workers direct their disenchantment at both the employer and labor unions in equal measure. Many believe that both lead them down a double-dealing and double-talking path. The concessions granted by workers in the interest of job security, generally do not lead to that goal. Resentment and fear involving job security heighten the adversarial relationship. For decades, workers complained about their employers, but still believed that somehow the owner-manager would protect their jobs. Now, that assurance has disappeared, leaving millions of workers feeling helpless and angry. No company can guarantee job protection. The solution lies in training, preparation, reorientation, and communications. Both management and labor are obligated to develop training programs to deal with new automation, robotics, and retraining in the event of plant transfers.
  • Top priority: Re-education of employees. Why do we have to look at labor and management, at what they are doing and what they stand for, as either good or bad? The reality is somewhere in the middle, and we must reach that middle ground through an educational process.
  • Clearing the air with new semantics. Specific words or terms in management-labor dealings often raise red flags and create controversy. Both sides know it, yet both indulge in wars of words. Soft words only work if both sides use them. But will management or labor use the better expression for fear of seeming too conciliatory? If we expect a new semantics of harmony to replace the old, failed semantics of conflict, its use must be mutual.
  • Stop using the media for effect. The unions belabor management. Management strikes out at unions. The media jump on it all, responding to the hyperbole of the vituperative blasts. Both sides must stop using the media as a vehicle for adversarial activities. The results are harmful, often to both sides; posturing for the media arouses resentment and builds controversies.
  • Bargaining: honest and realistic or face-saving and hostile? When I talk with union leaders, I am told that labor may be amenable to some cooperation as long as the solution makes labor look good to its constituency. The heart of the collective bargaining process is an extension of this charade, spawning months of talks which inevitably look more like predictable set pieces than actual negotiation. It is nothing more than a face-saving gesture.

Joint management-labor committees charged with defining how business and unions can coexist more constructively may help to remove many, time-wasting steps by thrashing out issues in a closed advisory meeting and then influencing leadership on both sides for the resolution without resorting to animosity or charade.

What is needed is an entire change in the process and attitude as management sits with labor or resolve problems.

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Why Nursing Homes Must Supplant the Role of Unions

To avoid unionization, management must act like a union when employee grievances arise

The number of unionized workers in the private sector continues to diminish, it is estimated that no more than a small fraction of the nongovernmental workforce is currently unionized. In order to maintain a productive nonunion workforce, however, the management of nursing homes and assisted living facilities needs to supplant the role that unions had played at an earlier time in Corporate America.

Unfortunately, not many nursing homes and assisted living facilities have managers trained to "supplant" unions, and that lack of training can be a significant detriment to a company's overall well-being.

Representing nursing homes in all facets of labor relations for the last 37 years, I help them by preparing their supervisory personnel to supplant the role of unions by not only maintaining productive workforces and high employee morale, but by minimizing the adversarial relationships that have historically existed between management and employees.

Throughout the history of unionized America, unions, foremost role was to listen to employees' grievances/complaints and then negotiate resolutions with management. In a non-unionized company, management itself must be on the firing line listening to needs, concerns, fears, and grievances/complaints of its employees and be prepared to resolve them equitably.

Alternative Dispute Resolution programs

It is essential that human resource (HR) executives be expert in administering alternative dispute resolution (ADR) programs, of which there are many types. ADR programs are generally welcomed by both management and employees because they are cost-effective and swiftly arrive at fair resolutions. One obstacle, unfortunately, that I frequently encounter is management's fear of giving up its traditional power. Yet, by involving employees in the process, management will not be perceived as arbitrary or capricious. I always try to explain to management that by being proactive, rather that reactive, they create a general feeling amongst employees of inclusion, and that goes a long way to increasing productivity and morale.

While there are many ADR programs that I recommend as part of an overall proactive program, the three most common types are

  • Arbitration. This is an adjudication process during which a third party hears both sides of a dispute, weighs the evidence, and renders a decision. Both sides may agree prior to the commencement of arbitration that the arbitrator's decision will be binding, or they may agree that there could be an appeal to another body to reach a mutually acceptable decision.
  • Mediation. In this case, the third party does not render a decision, but facilitates open and ongoing communication that is designed to lead to a mutually acceptable settlement. In most cases, the mediator is an outside professional without the authority to render a decision.
  • Peer review. This is a representative adjudication process that relies upon a selected panel of managers and employees. A majority of the panel is required to render a binding decision. Peer review should not threaten management's perquisites, because in most cases employees will side with management.

If costs are incurred for the services of a mediator and/or arbitrator, management and the employee can agree to share these, which are nominal for the employee, or management can absorb the full costs. It is essential that both sides feel that decisions are equitable because it ensures a sense of fairness in the process.

So that all employees are aware of various ADR programs, management structures a policy of inclusion in which various forms of communication will play a pivotal role: newsletters, brochures, e-mails, company announcements on bulletin boards, and direct mail pieces inserted into pay envelopes or mailed to individual homes. Open communications should be used not only to inform employees of the program and of how it works, but should also be used to inform them of results.

ADR programs serve an important role in defusing and resolving employee grievances/complaints before they can grow and have manifestly negative effects on morale and productivity. In all of the programs that I have established for my clients, most grievances/complaints were resolved in ways that were fair to both management and to employees.

Focus Groups

When management successfully supplants the role of a union, it also undertakes one of the traditional roles of unions: listening closely to what employees think and feel about their jobs, their futures, their companies and its policies.

One of the best means of doing that is through focus groups, which provide management with significant and important opportunities to gather reliable and representative information about its workforce and their attitudes. Focus groups also permit management to communicate real issues through ongoing employee involvement.

A focus group, for example, might be formed so that management can impart new policy information about health care benefits, while learning about employee reactions to the new policy. To be successful in determining how employees feel and what course of action management should take, a focus group should be led by a person with the necessary interpersonal skills to ask the right questions and get specific information. To achieve that input, the company (often its HR director) should pick employee participants who will be direct in their responses and are representative of the workforce as a whole. It is important that as many employees as possible be invited to participate in focus groups, and their presence rotated as a means of increasing employee involvement.

It is also important that the purpose or goal of the focus group be established prior to inviting employee participation. Without a statement of purpose, the focus group could easily turn into a free-flowing conversation that aimlessly meanders from subject to subject. If the purpose of the group is to learn how employees feel about the costs of health insurance and how those costs should be borne and what variables an employee may choose, then the facilitator will want to ask questions and offer topics of discussion that will elicit valuable information so that management can make a thoughtful decision. Finally, design the questions to obtain the fullest and most informative answers that help the facilitators reach the stated goal of the focus group.

Throughout the focus group session, there should be opportunities for its members to have an equal amount of time to make their contributions. If the facilitator is not sufficiently in control of the group, one or two individuals may dominate the meeting, thus defeating the representative makeup of the group. If the group is to serve its stated purpose, each individual should be given sufficient time to state a point of view. By ensuring that every member of the group can make an equal contribution, the facilitator will be seen as a neutral party, rather than an advocate for management.

Focus groups explore and examine issues in a flexible manner that is part of an overall strategic plan; such groups are an effective means for collecting valuable data. That data, when it is analyzed, will be essential for management to make decisions that will meet the needs of its employees, thus maintaining high levels of morale and productivity. The results should be published as part of management's commitment to open communications with its employees.

Team Building

Focus groups lead to team building. While focus groups are exploratory, teams are the instruments that implement strategic plans that are designed to accomplish specific goals.

Historically, unions had created a sense of employees playing on the same team, a sense of employee solidarity. In today's complex work environment, management can create that same spirit of solidarity to accomplish commonly shared productivity goals and to solve important problems.

Teams can serve such purposes as the enhancement of communications and the resolution of conflicts, but teams are most effective as a means of increasing productivity and enhancing employee morale. When it comes to meeting certain productivity criteria, for example, the entire team is mutually responsible for reaching those goals. One need only look at various sports teams to see how valuable mutual cooperation is to winning. In successful corporations, no one is an individual sprinter, although individual initiative is extremely important to the overall success of a team and the achievement of its goals.

TEAM has come to be an acronym for "Together, Everybody Accomplishes More," and that helps to dissolve the us-versus-them adversarial relationship that unions have fostered to create leverage.

When teams of workers are formed, they can be banded together to accomplish specific tasks, and then re-formed to accomplish other tasks. Team membership should be flexible. As an athletic coach calls in new players to replace others in different situations, so management will re-constitute teams to solve different problems and to achieve higher goals of productivity.

To create effective teams, it is essential that management clearly determines what problems it hopes to address by the formation of a team. It is also important that all levels of management support the team(s). Finally, it is important that teams have the right mix of people to get a job done. The most effective teams are comprised of idea people, detail people, and facilitators. In other words, those who see the trees and those who see the forest.

Once teams have been established, it is important that they meet regularly to review their progress. They should keep team records and provide management with appropriate tracking tools. One individual should be chosen to report to management on the team's progress, its problems, and its day-to-day operations.


An essential spur for a team's success is having an effective coach. A coach is a counselor-not a disciplinarian. The coach encourages employees to do better, to accomplish more; the coach works to rehabilitate negative employee attitudes, emphasizing what's positive; the coach is not a punitive task master.

In fact, a successful coach in today's highly competitive workplace is similar to the coach of a winning sports team. The corporate coach does not have a whistle and game book, but the effective coach has the ability to inspire people to higher levels of productivity, to meet goals and to feel a sense of mutual commitment. The coach deals with poor performers and mentors team members so that they realize their 1 potential. Coaches inspire, motivate, and guide their teams. Such coaches should create high-energy climates that foster initiative and innovation. A team with an effective coach will not only reach all of a company's goals, but will do so rapidly and with a sense of a job well done.

Employee Advocate Representative (EAR)

As unions used to have shop stewards who represented the interests of the union members by reporting back to union officials, so today non-unionized companies can have what is known as an Employee Advocate Representative (EAR). The EAR position is usually a trial assignment aimed at improving morale by involving employees in a broad spectrum of management activities and decisions. When employees want to make their concerns available to management, the EAR listens and then voices its concerns to management. The EAR is both the ears and voice for the employees. The EAR Position may or may not be salaried and is held for a limited time. Once a term expires, another employee is either chosen or volunteers to be the EAR. To enhance a sense of employee inclusion, the EAR position should be filled by as many employees as possible. Such rotations ensure the greatest amount of employee inclusion, and the rotations further guarantee that no employee is perceived as a being a tool of management. In small companies, the EAR can work in that position for an hour or two each week.

The responsibilities of the EAR include providing input about employee issues and suggesting solutions at regular department meetings. In addition, the EAR may assist in promoting company communications which includes communicating productivity and quality issues to key personnel and assisting with and/or developing action plans, providing articles for the employee newsletter, and reviewing bulletin board communications, company letters and payroll stuffers. The EAR may also play a pivotal role in assisting management with training and quality control programs, while also serving on committees dealing with employee awards and activities.

If management implements the activities described in this article, it will have successfully supplanted the role that unions have played in the past, and it will do so without the negative aspects of unionization, such as strikes, walkouts, and an often pervasive atmosphere opposition. Management and employees can rise Up From Confrontation and create a workplace where Everybody Wins! (as I titled two of my books) and achieve new levels of mutual cooperation, profitability, and productivity.

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Unions benefit from Obama decisions

The Washington Times

Tuesday, May 5, 2009 

Unions benefit from Obama decisions

S.A. Miller

President Obama has moved quickly to demonstrate his solidarity with the labor movement, making a series of policy and personnel moves dramatically reshaping the landscape to give unions a better foothold.

Even though labor's top legislative priority — the so-called "card-check" bill to make it easier to organize workplaces — has stalled on Capitol Hill, Mr. Obama has made up for it in a number of ways, often breaking sharply with policies instituted during the Bush administration.

One of Mr. Obama's first acts the day he was inaugurated was to elevate National Labor Relations Board (NLRB) member Wilma B. Liebman, a former International Brotherhood of Teamsters lawyer, to chair the board. 

The president has since appointed a succession of union loyalists to top spots in the Labor Department and on the NLRB. He signed four pro-union executive orders, most notably one requiring federal construction projects to favor "project labor agreements" that set aside jobs for union workers.

Last month, Mr. Obama appointed Service Employees International Union (SEIU) lawyer Craig Becker and pro-union labor lawyer Mark Gaston Pearce to fill vacancies on the five-member NLRB, which oversees laws governing relations between unions and employers. The AFL-CIO and other top labor groups complained that the NLRB under Mr. Bush had become toothless.

Mr. Obama also tapped as a top Labor Department adviser Mary Beth Maxwell, executive director of the American Rights at Work, a union-backed public-relations campaign that advocates for labor issues, including passage of the card-check bill.

Some of the new clout for unions comes from Mr. Obama's executive orders that reversed rules issued by the Bush administration.

Mr. Obama approved a rule requiring federal contractors to post notices that workers have the right to form a union and a second rule that bars contractors from seeking reimbursement from the government for expenses incurred in lobbying employees not to unionize.

A third executive order rescinded a Bush administration rule requiring federal contractors to post notices that workers can limit their financial support to unions.

It's a symbiotic relationship. As Mr. Obama strives to expand union power in the marketplace, unions build support for the president's agenda, including an overhaul of the nation's health care system.

"President Obama has made it clear from Day One that we will not be able to rebuild our economy stronger than it was without a greater voice, and greater prosperity, for American workers," said SEIU Secretary-Treasurer Anna Burger, marking the president's 100th day in office last week.

The first bill Mr. Obama signed was a union-backed measure that makes it easier for workers to sue employers for wage discrimination. He also signed a bill that nixed a pilot program opposed by the Teamsters that allowed Mexican trucks into the United States for cross-border commerce, despite complaints that the restriction violated the North American Free Trade Agreement (NAFTA).

Mr. Obama's labor secretary, longtime union ally and former California Rep. Hilda Solis, is the daughter of a Teamsters shop steward. She recently moved to quash a Bush administration regulation that would have increased scrutiny of union finances to root out corruption.

"I do not view the labor movement as part of the problem. To me, and to my administration, labor unions are a big part of the solution," Mr. Obama said in a video address to the AFL-CIO Executive Council's March meeting in Miami, Fla.

So far, however, Mr. Obama has been unable to deliver the union's most coveted prize: the card-check bill, officially titled the Employee Free Choice Act, fiercely opposed by nearly every major business lobby. 

The administration has continued to work behind the scenes to broker a deal that will get the bill passed in the Senate, where it simply doesn't have enough Democratic support to survive a Republican filibuster. 

The decision last week by Sen. Arlen Specter of Pennsylvania, a key swing vote in the card-check debate, to switch from the Republican to the Democratic Party gave unions new hope that a breakthrough was near. 

But Mr. Specter said he would remain opposed to the legislation, which would allow unions to begin organizing a work site if more than half the workers sign a card in support — a "card-check" method that is significantly easier than the traditional secret ballot.

Labor leaders hope the change will help reverse the long-term trend of dwindling union membership. However, a compromise that sacrifices the card-check provision but preserves other parts of the bill still would be a boon for the labor movement.

Even without card-check, the bill would stiffen penalties against employers that illegally fire or discriminate against workers for union activity and, more importantly for unions, impose binding arbitration if unions and management cannot agree on a first contract.

"Binding arbitration is where the money is," said Geoffrey Burr, vice president of government affairs for the Associated Builders and Contractors, which represents 25,000 nonunion construction businesses. 

"Unions are just as willing to drop 'card-check' if they get binding arbitration," he said.

Business leaders say they already are encountering an emboldened union presence, including the more visible presence of organizers at workplaces.

"We've certainly seen an uptick in that," said Brett McMahon, vice president of business development for Miller & Long Co. Inc., the country's largest concrete subcontractor and the largest employer of construction workers in the mid-Atlantic region.

"There are more guys showing up at job sites to hand out [union flyers] than we've seen in a long time," he said. "It is a far larger presence than ever in my lifetime."

Shortly after taking office, Mr. Obama met at the White House with labor leaders, including AFL-CIO President John Sweeney. The president has promised to have them back frequently.

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Meet Craig Becker

If you're an employer, he just became your worst nightmare.

To my clients and friends,

Do you recognize the man pictured above? If not, you're not alone. The Obama-compliant media have been very effective in keeping Mr. Becker -- and his radical pro-union views -- suppressed, at least until the President decided to defy the Senatorial majority against his nomination to the NLRB and appoint him during the Congressional recess.

Why is this important information for you to know? It's pretty basic.

Like so many of President Obama's advisors, confidantes, and appointees, Craig Becker is a self-described Progressive, laser-focused on "transforming" America. He is an unashamed radical who, in the name of worker "fairness," wants to rob those same workers of their right to a secret ballot in union recognition elections. And because Congress has so far been reluctant to pass this "card check" provision, he has announced his intention to bypass the legislature entirely and achieve his goal through an internal regulatory process. So much for the will of the people.

But EFCA and "card check" are just the tip of the iceberg: ALL EMPLOYERS, whether union or nonunion, need to PREPARE IMMEDIATELY for the "changes" long sought by the Left and Mr. Becker's former associates at SEIU and the AFL-CIO.

Here at the Cabot Institute, we have been preparing for change for over two years. The press may have swooned over Mr. Obama, but I knew from his record, his writings, and the influences in his life that as President, he would have business and capitalism in his crosshairs. Sadly, I was correct.

Fortunately, we have developed an array of proven strategies to defend your rights as employers as well as the interests of your employees, even in the face of new, intrusive regulations. I will be sharing these at our upcoming Labor Strategy Survival Seminars in Philadelphia, Pittsburgh, and Cincinnati, and I urge you to attend. Seating will be limited, and given the undeniable threat to employers represented by Mr. Becker and the soon-to-be-radicalized NLRB, I encourage you to register immediately.

You may have already received our seminar brochure. If so, please review it carefully and contact me with any questions or concerns. As an alternative, you can simply visit our website and download a copy -- as well as register online.

I will be updating you on developments as Mr. Becker turns his philosophy into policy, and will continue to devise effective strategies for remaining union-free, working more productively with a union already in place, or even achieving the ideal of decertification.

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If I'm anti-union, then so be it​

As union support continues to escalate among long-term care industry workers, managers are constantly looking for ways to halt organizing efforts. Eager to offer assistance is Stephen J. Cabot, an attorney and Chairman of The Cabot Institute for Labor Relations, Inc. Cabot, author of the book "Everybody Wins!" a labor relations manual for managers, is listed in the Who's Who directories for American Business and International Business. He recently shared some of his union-avoidance ideas with McKnight's Long-Term Care News.