Exit Interviews

Exit interviews get a bad rap.  Some people think they have value to the organization, others don't.   I read an article once by a headhunter who stated that "exit interviews fascinate me like cockroaches do."  His explanation was that no one knows why they exist, can justify or eliminate them and are likely to continue to survive.

Cockroaches aside, exit interviews are intended to help the company understand the full scope of reasons behind a voluntary separation.    With this information, an organization can determine and implement strategies to increase retention and reduce turnover.   If effectively structured, an exit interview will provide information that will:

1. gauge the effectiveness of current employment and business practices;
2. identify problems that contribute to turnover;  
3. manage employee expectations; and,
4. allow for the proper incorporation of new employees into the organization.

 In structuring an exit interview program the employer must decide:

1. Who:  Voluntary resignations?  Involuntary Resignations?  Or all departing employees?  (Not all turnover is undesirable.  As an employer you should be strongly interested as to why a valued employee quit.)
2. When:  Before or after the employees scheduled departure date?
3. How:  Face to face?  Questionnaire?  Third party platform?
4. Participation:  Mandatory or Voluntary?

One final recommendation, if you have an exit interview program develop a list of standard and open ended questions for all employees.  Ensure that no privacy rights (health related issues) are violated.  And most important, listen rather than talk. 

Confidential Data at Risk

In May of last year I blogged about data leaving company networks through non-secure mobile devices  ("Data Breach").  A hot topic, companies are increasingly concerned about losing trade secrets and proprietary information to competitors and thereby loosing competitive advantage. 

 

Conducted by Ponemon Institute in October 2012 and just released is Symantec's survey What's Yours is Mine: How Employees are Putting Your Intellectual Property at Risk.    Survey results reflect that half of employees who left or lost jobs in the last 12 months kept confidential data, 40% planning to use that data in their new jobs.    Only 38% of employees surveyed said their manager views data protection as a business priority, and 51% think it is acceptable to take corporate data because their company does not strictly enforce policies.  More and more we see that employees' attitudes and beliefs about intellectual property (IP) theft are at odds with the vast majority of company policies.

Survey highlights: 

1. 62% respondents:  Feel it is acceptable to transfer work documents to personal computers, tablets, smartphones or online file sharing applications.  The majority never delete the data they've moved because they see no harm in retaining the information.
2. 44% respondents:  Feel that a software developer who develops source code for a company has some ownership in his or her work and inventions.  42% respondents do not feel it is a crime to reuse the source code, without permission, for other companies.

As technology continues to evolve, organizations face the growing challenge of protecting stored sensitive data from unauthorized exposure. Surprisingly, most companies do not address the danger of stealing electronic information through the use of smartphones such as iPhone, Android or Blackberry.  Symantec ". . . once mostly forbidden by IT, smartphones are now being used by hundreds of millions of employees throughout the world to access corporation information. . . ." 

 

To protect and prevent against the loss of proprietary information, companies may implement the following:

1. Well communicated and enforced Confidentiality and Non-Disclosure Agreements
2. Data Protection Policies that monitor access and use of confidential data
3. Separation Agreements
4. BYOD (Bring Your Own Device) Policy

Most importantly, educate your managers and employees!

The Importance of Training Managers

What is the cost to an employer when a manager doesn't recognize s/he is acting in a discriminatory manner?   Some managers don't seem to understand what discrimination means, or oftentimes how to recognize it.  Discrimination, and the cost of discrimination, is a problem that companies just can't ignore.

In an EEOC Press release of 1/23/2013 the Dallas-based Fries Restaurant Management will pay a former employee $25,000 to settle a religious discrimination lawsuit.  The employee, Ashanti McShan, is a member of the Christian Pentecostal Church which requires women to wear either skirts or dresses.  During the interview process with Burger King, Ashanti requested a religious accommodation to wear a black skirt versus the black uniform pants.  She was told by the interviewing manager that her accommodation would be granted.  However, during her orientation the store manager advised her she could not wear a skirt and had to leave the store.  McShan attempted to contact higher management, and was unable to speak with anyone.  She was later discharged as a result of the accommodation denial.   Title VII of the Civil Rights Act of 1964 prohibits religious discrimination.  It requires employers to make reasonable accommodation as long as such does not pose an undue hardship on the organization.   

Florida Courts:  In Hurley v. Kent of Naples, on or about 2005, Patrick Hurley was diagnosed with depression and related mental health symptoms.  The doctor who provided the diagnosis, and the therapist, both advised that he should take medical leave.   The employee advised the company senior officer that he had been diagnosed with depression and needed time off to deal with it.  Having accumulated several weeks of vacation, the employee requested to take most of the year off on vacation.   His request was denied and he was terminated.  Obviously an FMLA suit, alleging interference with FMLA rights and retaliation, followed and Hurley won.  (FMLA entitles eligible employees to take unpaid, job-protected leave for certain family and medical reasons.)    The estimated judgement:

• $200,000 for actual monetary losses
• $353,901.85 for front pay
• $200,000 liquidated damages
• $233,109.75 for attorneys' fees
• $21,329.36 for "costs."

Texas courts: In an EEOC press release of December 18, 2012, Dillard's will pay $2 million to settle a class action disability discrimination lawsuit. Dillard's Inc, enforced a maximum-leave policy limiting the amount of health-related leave an employee could take. Additionally, since 2005, Dillard's had a national policy and practice that required employees to disclose the exact nature of their medical conditions to be approved for sick leave. Further, Dillard's terminated a class of employees nationwide for taking sick leave beyond the maximum amount of time allowed. This policy violated the ADA which prohibits employers from making inquiries into the disabilities of employee's unless it is job-related and necessary for the conduct of business.  The second violation was that managers/supervisors (or even HR) did not regularly engage in an interactive process with employees to determine if more leave was allowed under the ADA as an accommodation.  (More information is available on the EEOC website.)  While you can't blame the managers for this company-wide form of discrimination, logically HR should have identified the violation and pushed for policy reform.  But, who's to say that they didn't?

When discharging an employee who just revealed the need to take time off for a medical condition, use caution. Make sure the discharge reason is unrelated to the request.  Remember, firing an employee who is pregnant has legal risk.  Firing an employee because she is pregnant is illegal.

Employers can take steps to prevent discrimination claims by ensuring that all managers are properly trained.  Please invest in training your managers. 

"The best way to begin is to begin." 
                        - Benjamin Franklin.

Equity in Pay, In the Animal Kingdom?

What makes us human?  What separates us from other primates?  Scientifically, we have similar anatomy and yes, behavior. Sometimes traits that we view as uniquely human are anything but.   As with humans, within primate groups there is always a pecking order.  A primate is either dominant or submissive which has a direct relationship to ranking in the group.  Access to food, feeding competition mates, etc., is also dependent on ranking. 

What happens in a clinical environment when a Capuchin monkey is asked to do the same job as a second Capuchin, but for different pay?  It appears that we humans are not as unique as we think we are.   It turns out that primate behavior reflects some of the same traits as it does for us humans.  Monkeys reject unequal pay too!

A Capuchin was asked to give a rock to a researcher in exchange for a treat.  The Capuchin complies and receives a cucumber in return.  Initially the Capuchin is perfectly happy with the treat and continues to participate in the test.  But then the Capuchin observes a second Capuchin receiving a grape, a far more attractive reward, for performing the same job.  When confronted with this unequal pay for equal work, the monkey becomes outraged!  Now we have a clear indication of how monkeys respond to concepts of unfairness!

The link is here if you want to laugh.  The UpWorthy.  "2 Monkeys Were Paid Unequally; See What Happens Next."

http://www.upworthy.com/2-monkeys-were-paid-unequally-see-what-happens-next

Tortious Interference?

Employee John Doe has been working for XYZ  for two years, being recognized as nothing more than one of the many cogs in the wheel.    As a result of John's role within the company, he frequently comes into contact with a large number of company clients.  Then one day, something extraordinary happens. One client, Acme, realizes that John is a rising star!  After ensuring that no non-solicitation is being violated with XYZ, Acme extends an offer of employment to John.  John is excited about this new opportunity. It's the next logical step in his career and a nice increase in his compensation.  After all of the necessary pre-employment requirements are completed and the hire date is set, John submits his resignation to XYZ.    But this story doesn't stop here and there's no Cinderella ending.

The President of XYZ is astounded.  Why would you quit?  You're one of our rising stars.  Those last six words astound John, he's never heard them.   The President offers him more money to stay.  The office he'd like to have.   But in John's eyes, this recognition comes a bit too late.  After a lengthy discussion, John is more dedicated than ever to begin his new career with Acme.

Behind the scenes, the following happens.  While no non-solicitation exists in their contract, the President of XYZ calls Acme and schedules a meeting with them.  After a heated meeting and threats of pulling business, Acme is forced to rescind the offer of employment to John Doe.  John, somewhat reluctantly, remains in the employ of XYZ. 

Two months later, still at XYZ, John Doe hasn't received that proposed increase and the office has gone to another employee. 

Would you view this as Tortious Interference by XYZ?   Tortious Interference:  n.  Encouraging a breach, infringing on another's agreement, interfering with contract or contractual commitments, wrongful interference with business relationships.  For there to be liability under this tort you must show some improper or illegal actions as an intermeddler. You must evaluate whether actions, or contemplated actions, can be construed to have an appearance of impropriety.

For the laymen, tortious interference occurs when a person damages another person's contractual relationships or other business relationship on purpose.  Liability ensues where proof of economic injury exists.  The wrongful interference with some right or economic opportunity belonging to a person which causes that person some monetary loss.  Interference with prospective economic advantage.

 

What is your call on this?  Tortious Interference or No?

 

Fair competition is always legal.  An employee may leave employment and avail himself of whatever expertise he has acquired from his former employer.  As long as there is no use of former employer's trade secrets.

For "John Doe."