Monday, October 29, 2012

VOTE – Early or on November 6, but VOTE!

I’ve made my conservative leanings on many topics quite clear in this blog. But regardless of your political persuasion, I encourage all readers to vote.

As many commentators and pundits have said, this election presents an opportunity for voters to choose between two starkly different views of the future – the Republican view of a more limited federal government and the Democrat view of a more expansive role for government in our lives.

I prefer the former. I believe government is best when it intrudes the least into citizens’ lives, while protecting the basic Constutional rights of all to life, liberty, and property. I believe government works best when it is closest to the people it serves. I believe government at all levels should foster private action to deal with the problems of our day, not regulate our action.

But I know many well-intentioned, intelligent people who believe differently than I do. I hope they recognize that I am well-intentioned and intelligent as well, and that after the election, we can have a rational debate that recognizes the validity of many perspectives.

For now, the time for debates is over. For now, it is time to consider what we want for the next four years and to act.


Monday, October 22, 2012

Middle Managers Squeezed by Change: How to Cope

Many, if not most, management employees spend most of their careers in middle management. A typical career path in a manufacturing or service-oriented firm is to spend a few years managing hourly employees, and then to get promoted to managing other managers. Where you may stay for many years. Given the pyramid structure of most companies, few middle managers move into “upper management,” where they have division-level responsibilities.

Ethan Mollick of Wharton Business School has argued that middle managers have more impact on company performance than any other group in knowledge-based organizations.  Although their function may seem bureaucratic, middle managers allocate the resources that determine what work gets done in the organization.  They also set the tone of the workplace in terms of encouraging innovation and creativity.
While top management may decree what the company’s direction and strategy should be, these decisions do not get implemented without the support of middle managers. Many change management efforts in organizations fail because senior leadership fails to get the buy-in of middle managers.

Despite their critical role, middle managers often do not get much respect.  In July 2012, David K. Williams wrote in Forbes that middle managers are on their way out and will not be missed, because organizations need leaders, not managers.   In January 2011, Lynda Gratton wrote a column for the Harvard Business Review titled “End of the Middle Manager.”  

No wonder, then, that the Center for Creative Leadership reported in their October 2012 e-Newsletter  that middle managers are squeezed and suffer the most stress of any role in the organization. Middle managers suffer the worst work/life balance and feel the least job security.

In that same e-Newsletter issue, another CCL article stated that change is ongoing and relentless. Middle managers are the ones squeezed by the change. They are pushed from both above and below.

In her article in the Harvard Business Review, Gratton argued that for middle managers to survive in the information age, (1) they need to develop unique and valuable knowledge or competencies, and (2) they need to expand their knowledge into “adjacencies” so that their knowledge grew broader as their responsibilities increased. In other words, middle managers are in the middle of constant change and growth.

Despite the time pressures on middle managers, CCL says that it is critical for them to take time to reflect on the following questions:
  • What could you accomplish at work?
  • What goals can you set?
  • How might your personal life be better?
  • How could your relationships improve?
  • How would you feel if these improvements occurred?

Although middle managers are squeezed, they are responsible for themselves. Some of my earlier posts on empowering yourself might offer more suggestions. Here are links to those posts:

Step One: Determine the Current Reality 
Step Two = Choose to Assert Your Own Powers
Step Three = Recognize and Use Office Politics Positively
Step Four = Recognize the Difficulty of Change

What do you do to take responsibility for empowering yourself at work?

Monday, October 15, 2012

Favorite Firings Series: Bringing Pot Brownies to Work

In my last “favorite firing” post, I asked “what was this employer thinking?” This time, my question is, “What was that employee thinking?”

The San Diego Union-Tribune reported recently that a bus driver, whom I will call Driver MJ, brought double-fudge Betty Crocker honey brownies laced with marijuana to work and gave them to other bus drivers. Driver MJ was fired after an administrative hearing.

In the places where  I worked, this would have been known as a termination for being “too stupid to work here,” hence my question, “What was he thinking?” Most likely, Driver MJ wasn’t thinking, or was only thinking while under the influence.

Not only did Driver MJ lose his job, he faces criminal prosecution.

So this is a "favorite firing" because the employee's behavior was wrong on so many levels.

The more interesting questions in this situation involved the actions the employer took with respect to the three drivers who consumed the brownies.

The Facts:  When Driver MJ brought the homemade brownies to work, at least one of the other drivers allegedly asked whether the treats had any pot in them. Driver MJ said they did not.

When the three other drivers later realized the brownies had in fact been laced and they became dizzy, they stopped driving their vehicles and called for replacements. Thus, these drivers acted appropriately once they realized their driving was impaired.

The San Diego Metropolitan Transit System then placed the three drivers on paid leaves of absence and told them they could not return to work unless they submitted to drug counseling, as federal regulations of transportation workers require. One of the drivers accepted these terms.

The other two refused the terms for the paid leave, not wanting to undergo counseling because they had not intentionally taken the drugs.  These two drivers were put on unpaid leave.

Ultimately, the Federal Transit Administration waived the requirement that these employees receive drug counseling, and they were permitted to return to work

The Moral: Driver MJ caused far more problems than he anticipated, not only for himself, but for his co-workers. The other drivers did exactly the right thing and stopped driving, which prevented any injuries to themselves, their passengers, and the public.

The Metropolitan Transit System also investigated and took prompt action, which was appropriate. Some commentators have questioned why the MTS the drivers on an unpaid leave while pursuing the drug counseling issue. But based on the articles I’ve read, the MTS acted in accordance with federal regulations for transit workers.

Still, the right outcome in this situation is what happened: The regulations were waived.

If you had been one of these drivers, would you have objected to the counseling on principle, or been more concerned about keeping your job?

* * *
Please send me ideas for stories on workplace terminations for this series. If you have an interesting situation, please email me or leave a comment below. But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story.  I will only publish verified stories.

Monday, October 8, 2012

Mediation in the Mainstream, and Beyond

Next week, October 14-20, 2012, is Mediation Week, sponsored by the American Bar Association’s Section on Dispute Resolution. The purpose of Mediation Week is to increase the public’s awareness and understanding of mediation. This year’s theme is “Mediation in the Mainstream.”

Mediation has become a mainstream technique since I began practicing law. Thirty years ago, mediation was rare. Parties and their lawyers could settle lawsuits on their own, of course, and some judges held “settlement conferences” to encourage cases to settle, but independent trained mediators were not used very often, and lawyers did not learn about mediation or other forms of alternative dispute resolution in law school.

Typically, during those settlement conferences, the judge or a magistrate the judge appointed would browbeat the parties with the weaknesses of their position until they caved. I recall the settlement conference in one case in which I was defending a company against an individual plaintiff. The judge announced during the conference that the case should settle for $40,000. That was more than my client and I had valued the case at, but once the judge announced that figure, the plaintiff wouldn’t talk about any lower amount to settle. Trying the case would have cost far more than $40,000, so my client and I caved.

How does mediation help the settlement process?

Mediation Benefits the Parties:  

Cheaper: Mediation is much cheaper than litigating the case all the way through trial. Complex lawsuits can cost $10,000/month or more in attorneys’ fees. It isn’t unusual to see a large corporation spend over $100,000/month on a “bet the farm” type of case.

Even in run-of-the-mill auto accident cases, each side spends several thousand dollars to get the case to trial, sometimes more than the likely jury award. Often, it simply doesn’t make sense to continue a case through trial, but the parties need someone to help them resolve the matter in a way that they both can accept.

Speed: Mediation is faster than litigation.  Both parties may want some discovery prior to mediating, so they know something about the other side’s case. But typically the dispute can be mediated soon after the parties have exchanged basic documents and taken a few depositions.

In most civil cases that go to mediation, the parties later said they wished they had mediated sooner. After all, if the case doesn’t settle at the first mediation, the parties can agree to resume the mediation after additional discovery.

Control: The parties have more control over the outcome.  In a trial, the judge or jury decides what happens. In mediation, the parties are free to devise their own resolution of the dispute. Sometimes, they can agree to things the judge couldn’t give them – such as exchange of property, or reference letters, or other non-monetary remedies.

And the parties can set the terms for when payments and other exchanges will be made – the winning party doesn’t have to worry about executing on a judgement.

Mediation Helps the Judge:  

Preserves Impartiality: Mediation gets the judge out of pushing for settlement and preserves the judge’s impartiality. The judge can focus on the pre-trial and trial issues, without giving any indication of the strength of each side of the case, nor voicing an opinion on the value of the case.

Reduces Caseload: Plus, the more cases that settle during mediation, the less work for the judge to do. Most judges these days appreciate the value of mediation in reducing overcrowded dockets and streamlining their caseload. I don’t know of any judges who wish they could browbeat parties more into settlement. They are happy to require pre-trial mediation, and let the mediator try to settle it.

For all these reasons, mediation is a helpful process for both the parties and the court system. It preserves resources that would otherwise go to the lawyers, and leaves more resources available for the parties to use in resolving the matter to their own satisfaction. It is a good thing that mediation has become a mainstream tool in dispute resolution.

The Future of Mediation:

Mediation began in the context of resolving lawsuits, and that’s what I know the most about. However, mediation is moving beyond settling cases and into resolving other forms of disputes.

Mediation is now used to resolve school, neighborhood, workplace, and other forms of social disagreements. I heard one mediator joke that every neighborhood association needs a mediator on the board. It was said as a joke, but the person was only half kidding.

Will mediation move beyond the mainstream into everyday life? Or will we all learn mediation skills to  reduce the contentiousness of modern society? A pipedream perhaps, but who knows?

American Bar Association members can find more information at the Section of Dispute Resolution's website. A public source for information on mediation is the Building Dialogue blog.

Have you tried mediating a dispute you had? What did you like and dislike about the process?

Monday, October 1, 2012

You Can’t Legislate Love, But Regulation of Romance in the Workplace Is Necessary

“You can’t legislate love,” someone with whom I worked told me once.  We were discussing our company’s policy forbidding a manager from dating or marrying someone who worked in his or her group.

One of the subplots in my forthcoming novel about a business in trouble deals with a potential romance between one of the corporate officers and a woman in another division. They have started dating, then they move into roles where she reports to him.

Love happens. What are co-workers in love supposed to do?

According to a recent article in Workforce Week, entitled Office Romance Policies Can Reduce Risk, 38 percent of respondents to a Career Builder Survey had dated a co-worker, and one-third of them married the co-worker. Once people are out of college and graduate school, the workplace is a great place to find romance.

But still, employers should have policies on workplace romances. Otherwise, the risks of harassment and other problems when love goes bad are too high. I’ve dealt with lovers who turn each other in for theft, with one employee stalking a former paramour, with love triangles (particularly serious when two of the three employees are still married), and with several couples caught in inappropriate situations in offices, conference rooms, and minivans in the parking lot.

At a minimum, office romance policies should require employees to keep their pants and skirts on, except in the restroom.

Beyond that, here are issues for employers to think about when adopting an office romance policy:
  1. Forbid managers from entering into a relationship with anyone in their chain of command. The risks of claims of coercion or sexual harassment by the subordinate, or of favoritism by other employees, are too high. If a personal relationship does develop between a manager and subordinate, or if someone a manager is dating is moved into a position that creates a chain of command, require the manager to tell HR or his or her superiors, so they can decide how to handle the situation.
  2. Integrate the office romance policy with the employer’s conflict of interest policy (as it pertains to nepotism), so  it is clear that no one makes decisions on the hiring, firing, performance, and/or compensation of a relative or person they are dating.
  3. Make it clear that employees must treat other employees with respect at all times. Forbid any harassment, stalking, disparagement, or similar behavior. 
  4. Integrate the policy with the employer’s social media policy – it isn’t just conduct at work that should be banned, but also public conduct (including postings on Facebook and the like) that disparages or harasses other employees.
  5. Consider whether to ban dating between employees altogether. The problem with a policy that is this broad is that it requires a definition of “dating.”
  6. Consider whether to ban “public displays of affecton.” This, too, can be difficult to define.
  7. Some employers require “love contracts,” in which employees who are dating acknowledge in writing that the relationship is consensual and re-affirm their awareness of the anti-harassment and non-disparagement policies.
  8. Consider whether the office romance policy should apply to dating consultants, customers, vendors, and other people with whom the employer has an ongoing relationship. This aspect, too, should be integrated with the conflict of interest policy.

No, you can’t legislate love, but you can try to minimize the problems that result in the workplace when love goes bad. (Or when love goes good.)

Have you had any experiences where romances in the workplace caused problems?