How to Screen Out Troublemaking Employees...Legally

Far too many companies shoot from the hip when hiring people, figuring they can always get rid of them in a month or two if they don't work out. That's a recipe for trouble, thanks to the vast number of legal weapons that employees can now wield.

It always makes more sense to screen job candidates carefully... and hire only those who will fit in well. With the right screening techniques, this can be done.

Start by establishing a company philosophy. That might sound corny, but it helps. Whatever the company's goals may be, refine them, describe them and put them into a document that can be given to prospective employees. That document tells job applicants about the company's attitudes.


Find out about candidates' attitudes. The applicable questions are perfectly legal as long as they dovetail with the company's business-related philosophy statement and as long as all interviewers ask all applicants the same questions. All applicants should also be evaluated according to the same standards.

Effective questions for rooting out potential troublemakers:

  • If we were to call your former employers, what would they tell us about you?
  • Do you think you should be able to criticize management?
  • How do you react to rumors on the job?


What you're looking for in the answers to all of these questions are honesty, openness and respect for the chain of command. Employees who have nothing to hide, for example, will urge the interviewer to call their former employers. They're confident that the report will be good.

If there's an awkward pause, or if the candidate hems and haws, I often a sign that there's something he or she doesn't want your company to find out. In that case the answer usually goes something like this: Oh, I think they 'II give me a pretty good report...well, I really didn't get along too well with my immediate boss.

An applicant who gives an unequivocal no to the question about criticizing management usually isn't being honest. The kind of answer to look for: Not in every instance; But when management is doing something that I believe is dangerous or unfair, I feel that I should be allowed the opportunity of talking with management about the situation.

For better or worse, the grapevine is one of the most effective communications channels in any company. Here again, the applicant who claims not to pay any attention to rumors isn't being honest. Because many rumors involve guesswork about what management is up to, this question is a cross-check on the previous one about criticizing management, Best answer: Rumors can be upsetting, and if a rumor would impact my job, I'd like to feel that I could pursue it with management.

To probe further, ask: How would you discuss such a rumor with management? The best answer would be something indicating respect for authority and a desire to work through channels. If satisfaction isn't obtained at the first level in the chain of command, the employee would go to the next level. Time and time again, employees who give these answers are the least likely to cause trouble later.


The two things that most often trigger equal employment lawsuits are questions that aren't work related or that differ from candidate to candidate. Attitudinal questions that dovetail with the company's philosophy statement, however, are (or should be) clearly work related. And when every applicant is interviewed and evaluated according to the same standards, no one can claim discrimination. The key here is that the system establishes an even-handed measuring rod -- it doesn't mix apples and oranges.

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Labor-Management Cooperation Essential for American Business

American workers have always sought better wages and job security. Years ago they were just "employees at-will," subject to the whims of their employers. They toiled in difficult working conditions and feared the day when their employers might fire them.

Workers eventually turned to unions for job security and improved conditions. Bolstered by the National Labor Relations Act, which prevented discrimination against employees because of union activity, unions became the bargaining agents for millions of workers. By the end of World War II, it looked as if we would become a nation of unionized employees.

But the promises of unionism were never fulfilled. In the name of job security, unions compelled employers to accept inflexible, unproductive work rules. Unions spoke angrily and carried a big "strike" stick.

They drove employers to pay ever-higher wages and contributed to an adversarial management-labor relationship, but they did not assist in improving productivity.

Unions gradually became anachronistic institutions, preaching the same 1930s message while the nature of work and the work force changed. Unions came to be perceived as self-serving institutions tainted by criminal indictments and prosecutions.

Unions also became less relevant as an increasing number of state and federal laws were enacted to protect workers. Various laws now regulate minimum wages, overtime, pension plans, work-place safety, Social Security and the like. Many of those regulations contain provisions making it unlawful for employers to terminate employees who report violations.

While those laws made work safer and more secure, state court decisions have built a new bulwark around individual employees over the last 15 years. Those courts have further limited the "at-will" concept of employment by allowing terminated employees to file suits against their former employers for "wrongful discharge."

Some employees have succeeded in these lawsuits by alleging that employers violated public policy because they fired them for serving on a jury, taking time off to vote, or -- blowing the whistle on a health violation.

Many courts also have recognized implied contractual theories of wrongful discharge. In such cases employers were found to have made and subsequently broken binding, written or oral "promises" of employment.

Still, wrongful discharge actions, because they are undertaken by individuals, can give only the most limited job security to the masses of working people.

Indeed, neither union bullying, statutes nor state court actions will provide American workers the job security for which we all struggle. Such security will be achieved only after both employers and employees deal successfully with two of the most vital economic issues of our times: international competition and productivity.

We all know that international competition has put American industry on the spot. Our nation is swamped with imports in almost every field of production.

Japan is one of our fiercest competitors, producing top quality products, while paying its employees lower wages than comparable American workers receive. Yet labor relations in Japan are excellent compared with those in America. Japanese workers have a high degree of company loyalty, and Japanese management regards its obligations to them as a top priority.

It is the very need to compete with Japan and other productive, energetic nations that ultimately will force American industry to protect its employees and provide better job security.

American industry will become a competitive leader in the international marketplace only when it builds cooperative partnerships of labor, supervisors and management. Employers who see the "writing on the wall" will realize that they have to treat their employees fairly and work with them to harness their energies to meet the competition.

American managers must re-examine their methods. Management must communicate effectively with employees, encourage suggestions and participation, adequately train supervisors in interpersonal relations and introduce problem-solving mechanisms in which employees have confidence. Under such circumstances, employers would find that their employees are eager to solve problems in the workplace.

The American-managed Nissan plant in Smyrna, Tenn., is an example of a company that has built a working partnership of labor and management. The company trains its workers to do a number of jobs, involves them in decisions and gives them responsibility for the quality of the product at every level. The Nissan employees have shown no interest in unionizing, and labor relations are harmonious.

This cooperative approach may have been born out of necessity, but it will be cooperation, rather than wrongful discharge actions, government regulations or union muscle, that will be the source of employee protections in the future.

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Labor Relations without Interference

Union membership has steadily declined since the mid-1950s. Since 1975 alone, membership has dropped by over four million to its current level of approximately 18 percent of the workforce. In response, union leaders have vowed to reverse the trend of the last three decades through aggressive recruitment and by investing huge sums in organizing efforts. Leaders are also using new methods to attract members, including "associate" memberships, low-interest credit cards and discounted legal service plans. In short, unions are utilizing the latest administrative, technological and psychological approaches to regain their stature in today's workforce.

Employers, particularly those in the growing service sector of our economy, must be prepared to meet the challenge of the aggressive and increasingly sophisticated organizing drives by unions. Management may most effectively meet this challenge by asking themselves why unions have been necessary and then structuring a work environment in which they are unnecessary.

A work environment in which unions are unnecessary is one which stresses employer-employee cooperation, open and effective communication, understanding of shared goals, joint problem solving based on mutual respect, positive leadership and direction. Such an environment will produce a cohesive, productive workforce which has no need for or interest in a union.

The cornerstone of this type of proactive work environment is a workforce which recognizes that the employee's individual interests are the same as those of the employer and that these interests are best achieved through mutual cooperation. An employer can build and maintain a cooperative workforce by using a system designed to hire those employees who will work most productively within that company.

The Work Philosophy: Commitment to Cooperation

The current workforce and work environment must be evaluated before it is possible to design an effective hiring system. This evaluation is best accomplished by interviews with selected members of management. These interviews accomplish two goals: they define the company's "work philosophy" and allow the company to formulate a description (or "wanted poster") of the employee who will work most productively within that company's work environment.

A company's "work philosophy" is a policy statement regarding its commitment to cooperative employee relations and the advantages of operating without interference from organized or outside representatives. All levels of management, particularly top management, must be fully committed to the principles outlined in the work philosophy if it is to provide a strong base for an effective hiring system. For that reason, the philosophy must be an amalgamation of top management's views, ascertained through their initial input, of the type of employee relations environment which is appropriate for that company.

Profiling the Ideal Employee

The initial information gathered from management can also be used to develop a profile or "wanted poster'' of the ideal employee. This profile defines specific behavioral attributes and values, but should not be an outline of personality characteristics. Instead, it must emphasize prospective employees' propensities for cooperation on the job and their past work experience.

One starting place for a profile is an evaluation of the company's existing workforce. Supervisors and managers should be asked to describe those employees who are "successful"' from both the company's and their own points of view and those who are "unsuccessful." Those interviewed should be cautioned to avoid describing employees' personality traits. What is more important is how employees view:

  • The work they do,
  • The people to whom they report,
  • The company's policies and procedures, and
  • The employees with whom they work

For example, the initial evaluation could determine the amount or independence which is suitable for an employee of the company. It could also determine whether the work requires employees to think for themselves and adapt their work habits to specific situations, or if it requires employees to conform to a standardized pattern of repetitive work.

As an alternative to interviewing supervisors and members of management, the preliminary information may be gathered through an opinion survey. An opinion survey allows supervisors to express their unbiased views regarding the existing workforce and has the added benefit of eliciting the supervisors' opinions and attitudes about their work environment in general.

Once a sampling of "wanted posters" has been gathered from management and supervisory personnel, their descriptions can be distilled into a list of desirable and undesirable characteristics. These characteristics form the backbone of an effective hiring system and should define both positive and negative attributes. In other words, it is important to know the characteristics an interviewer should look for in a prospective employee and those an interviewer should seek to avoid. A profile of this nature provides a company with an objective method of determining whether an applicant will strive to achieve the company's goals and objectives.

Pinpointing Cooperative Employees

Once positive and negative characteristics are defined, a set of interview questions must be designed to measure candidates against the profile attributes. These questions should be phrased to encourage the applicant to respond with more than a "'yes" or "no" answer. In addition, a manual is needed for interviewers which shows how the positive or negative attributes appear in typical and exemplary answers.

Carefully designed questions and suggested answers provide an interviewer with a consistent, objective system for evaluating prospective employees. The hiring system is even more objective when it is based on a tally sheet which summarizes and evaluates an applicant's responses to the interview questions. An effective tally sheet would indicate how many points were assigned to each attribute on each question. The total number of points the applicant receives will determine whether to consider the person for employment.

Aside from assessing an applicant's suitability for a company's work environment, a hiring system of (his nature can also protect an employer from charges of discriminatory refusal to hire. A systematic interview and scoring process can assure that no unlawful questions are asked. In addition, if challenged, the company can produce a standard set of interview questions and the applicant's tally sheet to rebut any allegation that the company's employment decisions are based on discriminatory motives.

Auditing the Work Environment

A company cannot develop and maintain an ideal work force by using the hiring system alone. A system of labor relations audits is also necessary to assess the effectiveness of the hiring process and to monitor the company's employee relations climate. Labor relation audits can fulfill a number of functions, including:

  • Minimizing labor relation "risks" by minimizing exposure to discrimination charges and wrongful discharge lawsuits;
  • Aligning employees' expectations with the company's organizational philosophy and competitive reality;
  • Promoting and maintaining employee morals, effectiveness, satisfaction and loyalty to the company; and
  • Monitoring personnel procedures and policies including the competitiveness of the compensation package.

A System of Labor Relation Audits

Regular audits completed by management, supervisors and employees help to monitor a company's environment and labor relations. Various types of audits which can be utilized to accomplish these goals include:

  • Employee Audit, which monitors each employee's satisfaction and loyalty to the company;
  • Vulnerability Audit, which assesses a particular group's receptivity to a union organizing attempt;
  • Daily Human Resource Audit, which is completed by human resource managers and reviews absenteeism and disciplinary actions which might indicate dissatisfaction and vulnerability to union organization;
  • Weekly Human Resource Audit, which reviews turnover rates, tardiness, layoffs, disciplinary action, voluntary terminations, injury rates, employee communications and other factors which may highlight potential personnel problems; and
  • Monthly or Quarterly Human Resources Audit, which includes an analysis of wage and benefit comparisons, union organizing activity in the company's geographic area, a review of hiring procedures, methods of announcing and filing job openings, training, awards, communication programs and other indicators of employee satisfaction.

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Management's Role in Non-Union Companies

The number of unionized workers in the private sector continues to diminish, with estimates of no more than a fraction of the non-governmental workforce currently unionized. To maintain a productive workforce, pulp and paper company management needs to supplant the role that unions have played. Unfortunately, there are few companies with managers trained to supplant unions. That lack of training can be a significant detriment to a company's overall well being.

In the past, the foremost role for unions was dealing with employee grievances/ complaints. Unions listened to employee grievances and then negotiated resolutions with management. In a non-unionized company, management must listen to concerns and grievances and resolve them in ways that do not cause discord.

Alternative dispute resolution

It is essential that human resource executives be expert in administering alternative dispute resolution (ADR) programs. ADR programs are generally welcomed by both management and employees because they are cost effective and swiftly arrive at fair resolutions. One obstacle is management's fear of giving up its traditional power. But by involving employees, management will not be perceived as arbitrary or capricious.

The three most common ADR programs are:

Arbitration. An adjudication process during which a third party hears both sides of a dispute and renders a decision after weighing the evidence. Both sides may agree prior to arbitration that the decision will be binding or that an appeal to another body is allowed to reach a mutually acceptable decision.

Mediation. A process where a third party facilitates open and ongoing communication designed to lead to a settlement.

Peer review. A representative adjudication process that relies on a selected panel of managers and employees. A majority of the panel is required to render a binding decision.

If costs are incurred for the mediator and/or arbitrator, management and employee can agree to share the costs, or management can absorb the full costs.

Focus groups, teams, and coaching

Management at non-union plants also undertakes one of the traditional roles of unions: listening to employees. One of the best means is through focus groups, which afford management significant opportunities to obtain representative information about its workforce and their attitudes. Focus groups also permit management to communicate real issues through ongoing employee involvement.

Focus groups explore 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 analyzed, will be essential for management making decisions that will meet the needs of employees, thus maintaining morale and productivity. The results should be published as part of management's commitment to open communication.

Focus groups lead to team building-the instruments that implement strategic plans. Historically, unions have created a sense of a team. Management can also create that spirit of solidarity. Teams can serve such purposes as the enhancement of communication and the resolution of conflicts, but they are most effective in increasing productivity and enhancing employee morale.

To create effective teams, management must clearly determine what problems it hopes to address by the formation of a team. It is also important that all levels of management support the team. Finally, it is important that teams have a selection of the right kind of people to get a job done.

An essential spur for a team's success is having an effective coach. The coach encourages employees to do better and to accomplish more, works to rehabilitate negative employee attitudes, and is not a punitive task master

Employee Advocate Representative (EAR)

Just as unions used to have shop stewards, non-unionized companies can have an employee advocate representative (EAR). The FAR 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 imparts those concerns. The EAR position may or may not be salaried and exists for a limited period of time. Once a term expires, another employee is either chosen or volunteers for the EAR position.

The responsibilities of the EAR include providing input about employee issues and suggesting solutions at department meetings. The EAR may assist in promoting company communication and may play a pivotal role in assisting management with training and quality control programs, while also serving on committees dealing with employee awards and activities.

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Labor Snafus

As a labor-relations attorney who has represented management in its multifaceted relationships with labor over the past 36 years. I have created numerous programs that help to prevent labor problems from arising while many people have the perception that it is difficult to create and sustain such programs, it is not any more difficult in unionized companies than in non-unionized ones. In both instances, management must undertake to 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.


It is far better for management to engage employees in an ongoing dialogue rather than a one-side monologue of directives. If there are workplace problems, management should open a dialogue with employees and engage in a process of brainstorming to find mutually agreed-upon solutions. Having been consulted, employees thus feel that they matter, that their opinions count.

An ongoing dialogue will lead to employees' perceptions that management is listening concerns; in addition to listening management can show its concern by doing such things as having a financial expert offer free financial advice about retirement investments, by offering fitness and stress reduction classes at a nominal charge, by having a guidance counselor offer advice to parents about university admissions and costs, etc. As a result of such actions, management will be perceived as sincerely showing that is cares for the welfare of its employees.

Employee perceptions are extremely important, for positive perceptions will significantly enhance employee relationships with management. There re 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 company's 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; this is what produces positive moral
  • 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 wages 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 well and to facilitate opportunities for advancement

Two-way communication also gives management an opportunity to discuss its own concerns about ever-increasing operating costs, such as healthcare. If employees understand the onerous burden that management faces in paying a portion of healthcare costs, it will understand how those costs may affect wages and other benefits in the future. When such information is imparted many months prior to negotiations, it will more likely be believed because it is not associated with negotiations.

Effective communication results in management and employees sharing understanding of how to improve efficiencies and increase productivity. Once goals are achieved, management can show its appreciation by establishing employee recognition programs, which are an effective way of saying thank you.


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

In most employee surveys, anywhere from 30 percent to 40 percent of employee express a variety of negative feelings, which are often cries for help. Among the most common concerns frequently voiced by employees are the following: 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 employee concerns.

If management wants to create the most efficient and productive work environment, it must effectively deal with such concerns by listening to employees, by demonstrating respect for employee concerns, by brainstorming solutions with employees, and by making employees feel that they are all in this together.

A company wants its employees not merely to agree with management, but to accept management. 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 foals. Surveys will detect areas of discontent that can often be ameliorated with cost-effective programs responsive to employees' needs and concerns. If those areas of discontent are left to fester, how ever, they could ultimately fuel strikes, slowdowns, and unionization.

The consensus that management can create, following the results of survey, is absolutely necessary in making employees feel as if they are stakeholders in a company. A consensus will make them feel as if they are an integral part of the corporate culture, contributors as well as beneficiaries.

A consensus outs an end to the old, unnecessary paradigm of Us vs. Them. When 1 consensus is established, management and employees will be reading from the same page, dealing with key issues.


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.

One of my clients developed a strategy built around those three Rs: recognition, repetition, and reinforcement of that recognition. He then implemented an employee of the month program in which the stellar performance of an employee was recognized by posting an employee photo on a wall. My client, however, miscalculated when he failed to realize that in many instances when the employee's picture came down and was replaced with another, the first employee felt disappointed. I suggested to my client that he create a Wall of Honor or a Room of Honor in which all of the employees would have their photos posted. My client's recognition program has worked, and his company remains non-union in a highly unionized industry.

There is another important element in creating successful teamwork. It is an Employee Advocate representative (EAR) program. A designated employee, one mutually agreed upon by management and employees, becomes the EAR. The purpose of the program is to have a peer person available to assist employees with any of their problems. In establishing the program, management demonstrates its commitment to addressing its employees' concerns.

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.


There must be effective communication between employers and employee. Management must learn to listen and express its concern for wellbeing of its employees. It must encourage brainstorming to solve problems.

From effective communication will come a consensus of shared goals, integrating everyone into a successful corporate culture.

From that culture, where everyone is reading from the same page, will come a sense of teamwork, of everyone being in this together, of the elimination of the Us vs Them paradigm.

Contract negotiations in biotech companies are underway: those that have proactive, non-adversarial action plans, such as the one that I have described, will do far better at the negotiation tables than those who either have no programs in place or those who have waited to put such programs in place until shortly before contract negotiations are to begin. Remember: communication, consensus, and teamwork must begin the moment you sign a labor agreement, not weeks or even months before you negotiate a new agreement.

The program that I have explained in this article is designed to ensure that all biotech companies will enjoy 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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