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Are
Your Workers Emotionally Unemployed?
I
recently read that around three million Japanese - mostly middle-aged
and
older workers - are classed as "in-company unemployed."
These workers remain on the company payroll but are, in all intents
and purposes, redundant. They are trapped with their current
employer because of the Japanese employment system; the principle
of
lifetime employment makes employers reluctant to fire the worker,
while the outlook and talents of core employees are so much shaped
by the company-specific ethos that there is little chance of finding
another firm where they would fit in.
Apparently,
a lot of American workers are emotionally unemployed -
they show up for work everyday but are mentally out to lunch.
Research indicates that forty percent of American employees say
they
have more energy and creativity to give their company than they
are
currently giving; just under half say they are putting in as little
effort as possible without being fired. Countless managers deal
daily with the employee who never improves but never quite does
enough to justify termination. You know him or her; the employee
who needs constant instruction, the inaccurate or careless employee,
the nonproductive employee who avoids responsibility. In this
article, we'll take a look at what managers can do to hire committed
employees; in part 2, we'll discuss strategies for motivating
(and
not demotivating) the marginal ones, and, as a last resort, how
to
fire the problem employee without incurring unnecessary legal
risks.
Interviewing
For Commitment
Your
hiring managers undoubtedly understand the qualities,
qualifications, and skills necessary to do a particular job. They
probably have a thorough job description. Where interviewers often
fail is in distinguishing between what characteristics/ qualities,
credentials, etc. a candidate can acquire fairly easily after
hire
and which are very difficult to acquire and are highly resistant
to
change. If, for example, you are interviewing for an operations
manager, a candidate might quickly grasp how to review a daily
production schedule or complete shift and leave forms. On the
other
hand, communication skills or a positive attitude is not likely
to
be easily acquired if the candidate does not already possess it.
In
fact, many of the essential qualities for the perfect employee
are
in the " highly resistant to change" category. - and
smart hiring
managers know how to interview for them.
Essentially,
they ask candidates what they did instead of what they
would do. Generally speaking, we can learn much more from the
candidates description of what they have actually done than we
can
from their speculation about what they might do. Biases can be
probed with questions such as, "What do you expect to see
from an
employee for whom English is a second language?" Or "tell
me about
your experiences supervising employees who belong to a race or
culture different than your own? "What did you learn about
these
employees?"
Personal
characteristics are more difficult to uncover during an
interview, but we can gain some insights by asking the candidates
to
conduct a self-inventory. For example, "Why do you think
you might
be good at this job? Or "What led you to this choice of profession?"
or "What do you consider to be your greatest strengths?"
might all
yield some valuable information.
The
Honeymoon Period
The
last and most important step in the hiring process should be new
employee probation, which many employers have in place but fail
to
fully utilize as a cost-effective screening mechanism. Ideally,
probation is an opportunity to demonstrate during a reasonably
short
amount of time s/he does indeed possess the knowledge, skills,
values, and personal characteristics s/he appeared to have during
the hiring process. This is also a great opportunity for the
employer/manager to learn about work habits, such as punctuality,
reliability and the ability to follow through on requests and
instructions from supervisors. However, employment probation can
become a minefield of legal and contractual problems if it's not
structured properly and administered fairly.
The
cardinal principle of a legally sound probationary program is
that the rights and conditions of employment among probationary
and
nonprobationary employees need to be distinguished. To reap the
rewards without adding the legal risks of a new hire probation
program, employees should proactively - in writing - address the
following:
1)
Who must serve: Who must serve employment probation, and the
terms and conditions of that probation, should be clearly stated.
Distinctions between new hires and rehired personnel, and between
temporary and probationary status, have to be noted. Failure to
make
this distinction could lead to unintended employment rights for
contingent workers.
2)
For how long: The length of a new hire employment probation
period can be determined by such job-related factors as: 1) time
for
repeated experience with the full cycle of duties; 2) time for
training and its application; and 3) time to monitor attendance,
work habits and workplace relationships under a variety of
conditions. Employers may vary the length of probation among
differentiated clusters of job classifications, such as production,
clerical, technical and professional. However, open-ended probation
periods (where management determines the length of probation based
on an ongoing assessment of overall performance) inevitably
encourage claims that management discriminates among probationary
employees and/or is unreasonable in exercising its discretionary
authority. In most cases, the terms used to classify a probation
period should be clearly spelled out in calendar days, days fully
or
partially worked, or days for which an employee receives full
or
partial pay, excluding holidays.
3)
Under what conditions: Corrective actions, performance
standards, special evaluations, and other terms and conditions
of
the probation extension need to be stated clearly and specifically.
An employer should be prepared to convincingly explain why absences,
incomplete training and so forth during an employment probation
period justify an extension. Workers who become injured or ill
during probation should be expected to complete the full term
of the
probation when they return to work. The remaining length of the
probation might be extended if the absence was substantial, and
if
the employee missed important elements of job training. It's best
to
establish the terms of extensions during the probation period,
since
courts have generally taken a dim view of retroactive probation
extensions. Disabled employees and individuals undergoing
rehabilitation may require accommodation in duty assignments,
work
schedules, etc.
4.
What happens when it ends: At the end of a probation period,
conversion from probationary employment status to regular employment
status is usually automatic, unless management takes specific
action
to extend probation or to terminate employment. In some instances,
the reverse is true: Termination is automatic unless management
takes specific action to institute regular employment status.
At the
time of conversion to regular employment status, personnel policies
and/or contract language should indicate whether or not a worker's
seniority and entitlement to benefits would be made retroactive
to
the worker's date of hire.
5.
Why it turned out that way: Ideally, employment probation links
training with performance assessment. Employees should know what
they're expected to accomplish during their probation, and whether
their actual performance meets or falls below threshold standards.
In addition to achieving the purposes of employment probation,
assessment, feedback, and corrective support are important defensive
elements in discrimination lawsuits. Courts and arbitrators have
held that an employer's failure to provide the training and
evaluation components of a probation program could be the basis
for
setting aside dismissal or probation extension decisions.
During
probation, an employee should have adequate opportunity to
perform at least all the essential duties of the job classification.
To accomplish this, an employer may have to rotate an employee
through a series of job assignments. Furthermore, company policy
or
union contract should have no limitations on assigning overtime
to
probationary employees.
Probation
and Employment Law
A prominent feature of probationary employment is that the
termination or layoff of a probationary employee is at the sole
discretion of an employer. Typically, probationary employees aren't
entitled to "just cause" for a termination, or even
to be given a
reason for the termination. Consistent with this feature,
probationary employees are generally denied the right to challenge
any decision of management, including discipline or termination,
through a grievance procedure.
Nevertheless,
probationary employees do have the right to file
unfair labor practice charges under the Labor Management Relations
Act. Especially in mixed-motives cases, an employer's well-
documented evidence of deficiencies in an employee's performance
and
corrective measures undertaken by management are critical factors
in
overcoming a prima facie showing of antiunion hostility and/or
motivation.
The
Equal Employment Opportunity Commission (EEOC) considers
employment probation periods as part of the selection process.
Employees' rights and protection under federal and state employment
laws aren't diminished because they're serving employment probation.
Prohibitions against discrimination based on race, color, gender,
religion, national origin, physical or mental disabilities, or
age
are applied to individuals in probation and regular employment.
Terms and conditions of employment may differ between probationary
and regular employees. However, policies, rules, and standards
of
performance must be applied without discrimination to individuals
in
the same employment category. And, management should consider
validating any measurement instruments used during probation,
such
as performance appraisal benchmarks.
The
Americans With Disabilities Act's requirement that employers
reasonably accommodate and not discriminate against disabled
individuals extends to employees serving employment probation.
Disabled probationary individuals may be expected to achieve the
same levels of performance in the essential duties of a job
classification as are applied to nondisabled probationary employees.
An accommodation might entail nothing more than an extension of
the
probationary period. Special support services and/or equipment
that
would allow a disabled person to successfully perform essential
duties, but not place an undue financial burden on the employer,
might also be necessary accommodations.
Where
There's a Will . . .
Employers have traditionally assumed that probation isn't needed
in
the context of an at-will employment relationship. However, courts
and legislatures are narrowing the prerogatives of management
under
at-will employment. Employers are finding that a well-structured
and
fairly administered employment probation program preserves important
managerial prerogatives.
On
the bright side, courts and administrative agencies have
routinely upheld the right of at-will employers to establish more
rigorous standards of performance for probationary employees
compared to nonprobationary employees, when those standards were
applied fairly and consistently to all probationary employees
during
the critical, early period of an employment relationship.
At
the interface of at-will employment and probation, an employer
should take care that elements of an implied contract of employment
aren't established via appointment letters, performance evaluations,
or statements in personnel policies or manuals. For example, in
one
wrongful termination suit, an appointment letter from the employer
to a probationary employee specified certain performance goals
for
the probation period. The court held that the performance plan
didn't, in and of itself, constitute an implied contract for
continued employment or termination only for "just cause."
In
addition, during the probation period, no written or oral statements
by the employer established an implied contract.
The
Bottom Line
Emotionally
unemployed workers cost employers millions of dollars
each year. This article has focused on ways to avoid hiring them
and, should one slip through the interview cracks, effectively
use
the new hire probationary period to get rid of one quickly. Often
times, employers wind up with marginal employees either because
hiring managers either don't understand the difference between
easily acquired technical or administrative skills and the often-set
personality characteristics that can make or break just about
any
job or they don't ask the right questions to assess them.
Another
often-missed opportunity is the use of the new hire
probation period for in-depth employee screening. When a new hire
probation program exists, employers often end up hiring the employee
just because it's easier to do so. The problem with the "warm
body"
approach to hiring is that more often than not, poor or mediocre
performance during probation will not improve with time. The
decision to keep someone on the payroll hoping that s/he might
improve is an exercise in wishful thinking and nothing more.
Employees who are late and absent during the hiring "honeymoon"
will
always be late and absent. Employees who have trouble with authority
will grow more resentful with each suggestion for improvement.
Unproductive employees will become less productive as they become
more secure in their position.
Of
course, reaping the rewards of a viable probationary period must
be balanced with guarding the legal risks. To protect the rights
of
workers and to preserve managerial authority, the structure and
administration of a probationary program must comply with an
evolving body of employment law and court decisions. Employees'
rights under law aren't diminished because they're serving a
probation period. Which, overall, is a good thing; employees will
continue to be a company's most valuable asset. The hiring
challenge is to weed out the fool's gold from the real gems.
NEED
A SPEAKER FOR YOUR HR AUDIENCE? CONTACT DR. JOHNSTON
TO SPEAK TO YOUR GROUP!
Dr.
Joni Johnston, author of The Complete Idiot's Guide to
Psychology, is a popular speaker who speaks to national human
resource audiences on such timely topics as "How to Turn
Employment
Liability into Employee Retention," "The Psychological
Road From
Employee to Plaintiff: How to Avoid Wrongful Termination Lawsuits,"
and "Dealing With Psychiatric Disabilities at Work."
To
contact her to speak to your group, e-mail
jonij@workrelationships.com.
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