Andrew's HR Corner

Nobody's Perfect

2010-06-21T09:57:00.002-05:00

I was at the College World Series with my family Saturday night watching UCLA and Florida play in the night game. I’ve been watching and assisting little league baseball for many years. We expect a lot out of the young kids, especially as they get older. But what struck me at the college game was that as sharp as they looked in warm ups, they made just as many, if not more, mistakes than the 13 year old boys I watch and help coach. It helped round out my perspective. The same applies to work and life. We are constantly trying to get better and improve. No one is perfect, but we hope to improve in our personal and professional lives. So, don’t get discouraged, just keep at it, and know that no one is perfect.

Goals

2010-06-05T09:55:00.002-05:00

Little things make a huge difference. I was thinking about a team of working professionals who barely missed their goals recently. It wasn’t for lack of effort. But it reminded me of my son’s baseball team. They’ve lost some close games in the last inning, also, not for lack of effort. A few things did occur to me in the baseball setting that may apply to business, however. For instance, when a kid doesn’t slide into second base (thinking the catcher wouldn’t throw to second with a runner on third) and his momentum carries him past the bag a half step, he’s called out because the shortstop is still applying the tag on him. So what might have been a tying run on second with one out turns into two outs with tying run at the plate. It’s a double whammy. The guy on third is meaningless unless the guy now at the plate gets home. Any routine fly ball or infield play will end the game. Arguably it goes back to the runner not sliding into second. But that’s not the way to look at it. Of course, the failure to slide was important. But we all know there are a multitude of other plays throughout the game (bad pitches, errors, lack of hitting) which all contributed, but it’s the plays at the end clinging in our memory banks. I think the same thing happens in business. If we don’t hit goals, we tend to focus at what happened at the end of the measured term. Instead, we’d benefit from looking at the entire period ( and before in the planning phase) to understand what may have contributed to a different outcome. And never forget, goals are to be attained and the fruits enjoyed as a result of much effort. Sometimes the effort procures the desired result, sometime not, but in either case, each contributor can walk away knowing they tried their best.

Tranquility and Occupation

2010-06-03T08:53:00.001-05:00

The quote “it is neither wealth nor splendor, but tranquility and occupation which give happiness” is attributed to Thomas Jefferson. It seems most people intellectually understand this statement, but most people have a hard time living it. For example, where can you find tranquility and occupation at the same time? The quote implies more solitary pursuits. In Jefferson’s day, it was a more agrarian culture. No cell phones (no phones period), no computers, no cars. But think about it in the context of today’s world. Are you always tranquil when working alone without the phone in your ear or the computer in your face? When I’m pulling weeds, trimming around hard to get places, and cutting down tough branches – solitary pursuits, I’m not necessarily tranquil. My point? Occupation can come in almost any form today – physical labor, mental tasks, and intellectual pursuits. I believe tranquility is driven more by a person’s personality type. What do people naturally predisposed to do? Some people I’ve found are actually more “tranquil” and occupied working phones and relationships all day. Some love less interaction. In either case, the key is understanding what works best for each individual and working towards balance. This is especially critical for managers developing team cultures.

Summer

2010-06-01T08:38:00.002-05:00

It’s June 1st. This is what I consider the first of day of summer. With Memorial Day over, I have faith in warmer weather to come and a little slower pace. From a business perspective, however, our indicators show a stronger summer than 2008 and 2009. And though the staffing business is always a roller coaster, activity is stronger. This heightened activity is confirmed by other data relating to industry as well. As always, the real test will come down to who can deliver the best candidates. Have a great day.

Don't believe everything you read

2010-05-25T11:09:00.001-05:00

Don’t believe everything you read. If you do, you subject yourself to a type of slavery. You have to use good judgment in deciding what words have value. It’s important to trust the source of the information which is normally accomplished through research and the passage of time. Writers are all over the internet attempting to sell products and services with good copywriting skills. I find some of these pitches to be tempting as well. But each of us should do our best to uncover the source and make a prudent decision about what we read.

Stay out of the way

2010-05-21T10:58:00.001-05:00

Another quote I read recently from Peter Drucker was “So much of what we call management consists in making it difficult to work.” This one is funny because I think all employees of all levels can identify with it. When I worked for bosses in the past, I can remember thinking “if they’d just stay out of the way and let me do my job, it’d be done faster and better.” And then as a boss (co-worker is a more preferable word for me personally), I try not to get too involved so people can do their jobs and I try to dispense with advice only when asked or in obvious situations. Again, it’s a balancing act.

Individual and Team

2010-05-20T10:39:00.002-05:00

I read a quote from Peter Drucker (the great management guru) which said “For it is the willingness of people to give of themselves over and above the demands of the job that distinguishes the great from the merely adequate organization. “ I think what’s noteworthy about the quote is it emphasizes both the individual and the team. One cannot exist without the other. While each person’s self interest (appropriately so) is to make money and provides for their needs, there’s a commonality of interest achieved through hitting team goals. People are general social, some more, some less, but each with some degree to be part of a larger whole. Most of the time this is within the context of employment, family, and the community at large. And while practicing a proper balance between all three, each person can reach a greater degree of fulfillment.

The Economy

2010-05-05T09:45:00.000-05:00

People have gone beyond being worried about the economy it seems. There’s appears to be a general acceptance that we got hit by a horrendous economic storms. Now we’re left picking up the pieces. I’ve tried to discern at times and at varying levels what this means to me, our company, our city, the country, and beyond. The only clear response is change is constant and we must respond the best we can. No “perfect” response exists. Since we’re so interdependent in the business setting on so many variables, we simply do our best to fulfill our function and trust the good nature of others you depend on will do the same. And depending on whether you’re an introvert or extrovert, you may need to find that downtime to breathe and achieve some perspective in this regard. The go-go years of the 90s through the mid 2000s are over. But is that really a bad thing? Maybe we’re just returning to a more balanced existence.

Be Authentically Yourself!

2010-04-23T07:51:00.000-05:00

The magazine racks at bookstores and grocery stores are loaded with stories of personal success and failure. We all want to be in the successful category and avoid failure. But we're neither. Each person is so unique that none of us can live up to others' successes, or failures. We simply must be ourselves and do our best to offer our God given talents. Each of has certain skills and personal traits which help us perform certain jobs well. But even in the context of job performance, so many external variables can influence your financial success, it’s futile to define yourself as a success or failure based on what happens in your job. Coach John Wooden (won 10 college basketball championships in 12 years) is reported to have never mentioned winning and losing to his players. He emphasized if you try your best every day (and there will be good and bad days), you’ll never be a loser. Rather, your effort is what counts. Have a great day!

IT Hiring Uptick-Qualified Candidates

2010-04-20T09:24:00.002-05:00

The Wall Street Journal recently indicated IT hiring was up. While we’re seeing a bit of an uptick in our clients’ job openings supporting this assertion, we’re also mindful of our need to have the best candidate for each job. In the pre-internet/pre email days, we used to hand deliver resumes. For that added touch, we might just put a gold paperclip with our card at the top of the resume. When you performed your personalized service this way, you wanted to be darn sure your candidates were qualified for the position. With the internet it seems easier just to submit categories of candidates instead of truly specific ones. There can be no doubt this business is still based on quality relationships and well qualified candidates. The work is in the day-to-day details.

College Degree or Not?

2010-04-16T15:56:00.002-05:00

Too often I’ve reviewed resumes where people list colleges they’ve attended, the dates, and the areas of study. But the degree isn’t listed. I don’t know if these candidates are trying to imply a degree was earned. But I’d say it is in the candidate's best interest to list hour taken so the reviewer can get an idea of where this candidate was in the college process. I think it works against the candidate to fail to identify that a degree was earned, but also fails to list the hours completed. It is more complete to list it all, and it separates this candidate from the others that don’t provide the information.

I’m certainly not suggesting a degree guarantees success. It’s just that many employers require it, or commensurate work experience. And for that reason, be as thorough as possible. And if you don’t have a degree, be very specific about the nature of your work experiences. Employers love to read examples of work product to they can visualize how it may translate into the job.

Spring & Jobs

2010-04-01T15:45:00.001-05:00

Spring is upon us – in the Midwest at least. The meteorologist said it had been over six months since Kansas City last saw an 80 degree day. With these nice days comes a sense of what’s fresh and new outside. Too bad we couldn’t put our desks, computers and phones outside. Did anyone say we couldn’t?

Inside or out, we are nevertheless acutely aware of those still looking for work. There’s no shortage of hard luck stories on the news. In certain regions of the United States it does appear more employers are hiring now. I’ve read unemployment claims have gone down (hopefully not the result of states simply running out of funds). I know our own clients have picked up their hiring activity somewhat. Hiring ebbs and flows every few weeks, but there’ is cause for optimism.

Whether it is in matters small or large, do what you can to lend a helping hand to someone looking for job. It may be a referral, a job opening, or something as simple as an encouraging word. And get outside as much as possible.

Allow Surfing or Not?

2010-03-23T15:59:00.000-05:00

How many of us have wasted countless hours perusing the internet with no obvious purpose. It’s a little like constantly changing the tv station with the remote. This apparent desire to be stimulated to avoid boredom is an epidemic. Sure we all need some down time and surfing the net provides some relief. But what about in the office? What should people do when surfing occurs at work? Should the employer adopt a no surf policy? Put up site blockers? Fire surfers?

I’m not a big believer in over regulating worker conduct and behavior. Having been an employment law attorney, I’m very familiar with the traditional advice to completely eliminate surfing as a matter of policy and block certain sites. I think this shows too little trust in employees. As long as they are managed to defined production results, I don’t believe anyone should worry too much about internet surfing. Workers are adults and should be able to self police their internet surfing. It’s just a fact some will do it more than others. One would presume the bigger offender would be the less productive but I’m not aware of any evidence validating such a hypothesis.

However, my opinion changes dramatically if someone is surfing porn or other inappropriate sites. Such inappropriate behavior is generally prohibited under broader employee conduct policies. Other employees may be offended, and frankly it involves an intent to surf the web for items other than news, weather, friends’ facebook updates, etc. I think the days are long gone of trying to control internet usage. This is particularly true in office work settings. I doubt it’s a problem for manual labor positions. But the one truth which applies regardless of the passage of time and invention of new technologies is that people must still be productive.

The right balance between appropriate, universal employee policies regarding employee conduct and employee freedom is a delicate one that’s lived out each and every day throughout the United States. Only responsible people agreeing to watch out for each other’s and the team’s best interest will succeed in achieving this balance.

You Should Work

2010-03-01T15:35:00.002-06:00

Perhaps I was premature in my last article Work Should be Joyful. It assumed man must work. And indeed, man must work. Let’s look at this foundational teaching.

As one theologian wrote “Man must work both because the Creator has commanded it and . . .Man must work out of regard for others . . . since he himself is the heir to the work of generations and at the same time a sharer in building the future for those who will come after him in the succession of history.” (Pope John Paul II, Laborem Exercens, 73).

Work isn’t bad. Remember last week’s article. Work is good. Work should be enjoyed, perhaps with some attitude adjustment. Once “work” is framed this way, it’s possible to understand the command to work. For instance, I had a Benedictine monk tell me years ago during a personal reflection retreat it was okay for me to get away from my business (provided it functioned in my absence) and pursue other interests. He wasn’t advocating doing nothing. Rather, it was an invitation to follow my natural curiosity. This creative work, identifying additional competencies, paid or not, fulfills this mandate to work. And it’s fun.

The old view of “work is bad” or to be avoided germinated from a society rooted primarily in jobs that that “grind men down with excessive labour as to stupefy their minds and wear out their bodies,” a condition John Paul II admonished in 1991. (Centesimus). Today’s connected world won’t tolerate it. That’s a good thing. But the world also won’t tolerate the other extreme – self -absorbed employees with little work ethic. Such workers shirk more than the terms of their employment agreement, , they disregard God’s command. I think the majority of Americans risk living closer to the latter scenario.

The key is to harness your individuality within a larger organized effort. Everyone wants to produce. But not everyone wants to produce when it’s for other people, like owners and employers. They’d rather do it for themselves. Maybe they don’t like, or believe in, the people they report to or work with. Judging by recent news reports, 45-70% of Americans dislike their jobs. That’s over 100 million people! How can that many people be unhappy with their jobs? Is it the content of the job? Is it co-workers or bosses? Is it the perceived lack of direct benefit to society? Should we resort to an agrarian norm? Heck, I own two farms and dream of working by the sweat of my brow (my wife and kids laugh at this) Such a narrow view implies technological advancement is bad. Progress is a good, moral development in the right context. And our challenge is not to revert to a perceived Nirvana, but to understand how to apply ourselves into this developing world for the betterment of all.

Perhaps one of the best ways to combat aloofness is simply be through exemplifying virtuous work habits. Life is hard. So why not just show up to work on time, put on a smile, and slug it out. Too many workers through in the proverbial towel without quitting their jobs. They don’t “buy in.” They go through the motions. What’s missing is a sense you owe it to God if no one else to work hard and do your best.

Work = Joyful?

2010-02-09T10:46:00.000-06:00

Should Work Be Joyful?

Work is work. We do it for money, nothing more, and a lot less. Right? Do you ever run into people who claim to love what they do? I do. My father claims to have loved his 45 years of being a counselor. Why is that? Could it be there's an incongruence between what people feel they must do and what they want to do? Could it be they're not listening to God's call to do something that matches their personality but makes less money? Whatever the reason, it's clear to me work should be more enjoyable than not. I submit you should enjoy work. If you don't, then there's something out of balance with you, your job, or both and you have an obligation to be introspective enough to find some answers and take action. I'll try not to get too theological on you, but the basis for most people's work lives, and angst about purpose, comes from their spiritual lives.

You Are the Subject of Work.

I'll grant you it's just a fact of life we can't all make money doing what we'd like due to the dearth of options. In fact, full employment wouldn't mean full job satisfaction because job descriptions are grouped, not individualized. Consider sales jobs. They almost all require objective activity and production measurements. These million or so job descriptions aren't modified to suit subjective personality traits. But don't stop there. Hamburger flippers, car manufacturers assembly line workers, plant workers, log splitter, you name it - they all require work whose job descriptions fail to address a person's creative, emotional, spiritual, psychological, or other unique characteristics. Since this will never change, we must think about our "enjoyment" of work in a different paradigm. Each person must reconcile their individual characteristics with each generic job description. In other words, you must ply your trade according to the capacity of your personality. And this means, you, not the company profits (albeit important), are the subject of work. .

What does this mean you are the subject of work?

I think people of all faith disciplines can find guidance in two documents wrrient by the late John Paul II. Laborem Exercens (Encyclical on Human Work), issued by John Paul II, September 14, 1981; and (2) Centesimus Annus (Centenary Encyclical on Capital and Labor), issued by Pope John Paul II, May 1, 1991. If time's a problem, I can quote and paraphrase relevant excerpts to illustrate the point.

John Paul II wrote "Work thus belongs to the vocation of every person; indeed, man expresses and fulfills himself by working." (Centesimus Annus, 6). "[W]work is a good thing for man..It is not only good in the sense that it is useful or something to enjoy, it is also good as being something worthy,.to man's dignity, that expresses this dignity and increases it. If one wishes to define more clearly the ethical meaning of work it is this that one must particularly keep in mind. Work is a good thing for man-a good thing for his humanity-because through work man not only transforms nature, adapting it to his own needs, but he also achieves fulfillment as a human being and indeed in a sense becomes "more a human being."" (Laborem Exercens, 40).

Given the premise work is to be enjoyed, and man is the subject of work, we're left with the question of how those jobs , the ones I'll call "must-take" jobs, should be viewed. The teaching is clear enough on this point. The illumination on work is on the individual doing the work, not the work itself. The harder part is to create a positive habit of reorienting the conscience to believe it. After all, God created the human being in His own image. He doesn't say that with respect to the soulless work itself. We need to recalibrate our thoughts to reflect this fundamental truth.

In practice, this means refusing an incessant analysis of how your job is either boring or has no direct causal relationship to what you can perceive as good. This desired "directness" seems to be the source of so much malaise people feel towards their work. This malaise is also the source for so much gossiping and backbiting. Remember, Matthew 20 regarding workers in the vineyard who started at different times of the day complaining about fairness of pay for those who started work later than they did. Stop all o the nonsense. Rather, simply meditate on how it's you doing whatever, anything at all, with the emphasis on you the actor, God's own, doing the work. The work will take care of itself. All work in some sense provides something for others, usually a living of some type. So you can always take comfort knowing (1) it's you God is interested in as the subject of work and (2) no one does great things, they only do small t things with great love - Mother Theresa.

What now?

I advocate doing whatever you can to make money doing what you like. I think everyone who's not completely content with their jobs spend countless hours dreaming, far less planning , about what they'd really like to do. There's a paradox in the midst of the current recession on this point. While I've listened to numerous stories of people giving consideration to work which better corresponds to their natural interests, many if not most are interested in finding any job which pays the bills. If you're one of the fortunate ones, God bless you, and keep it up. But if you're not lucky enough to be paid to do exactly what you want (almost all of us), must you automatically dislike the job you have to take? I think not. The "less than perfectly content" worker should be able to find something in her daily duties to not only reduce questions about the meaning or usefulness of his or her work, but to find joy in that work.

I think a plan always helps. I've put together a short seven step plan to help.

Seven Steps to Enjoyment

To enjoy "must-take" jobs, try following the next seven steps.

First, remember what we just discussed. You are the purpose of work. This singular reminder is the best weapon against the daily doldrums associated with less than ideal jobs. The next six steps are practical ways God may be calling you for a return on his investment into the natural talents He's given to you. For reasons you may never know, he may want you to work hard, stretch for what you want, and in the process touch people's lives. Remember Matthew 25 in the parable of talents where God rewards those who use their skills to God's advantage.

Second, write down your natural skills which correspond to your likes. For example, I know a lot of lawyers who are good at practicing law but hate it. Many are more interested in teaching, owning a business,etc. Doesn't mean they can make money at these other endeavors, but since they like it, they're willing to put in extra effort to see where it goes.

Third, think through ways to improve the skills you enjoy.

Fourth, practice those skills in whatever free time you can create for yourself. This probably means at night. If you have kids, you may have to wait until the kids go to bed. This is a real challenge.

Fifth, network with people who work in your area of interest.

Sixth, gradually find ways to provide your work to third parties for feedback. If you're a cook, try out your dishes on anyone who will taste them. Furniture makers can market their work on consignment, or ebay. Public speakers can practice on family members. You get the idea.

Seventh, never quit. Rejection is a given. You may have several interests, a natural curiosity which manifests itself in several different interests. Try them all. You will find you like some more than others. The key is to keep trying.

These seven simple steps will at least move you in a direction to understand what you're good at, what the market looks like for your specific skills, and whether you can make it happen. Even if this takes the rest of your life, you'll know God got a return on his investment. You worked hard, you left no stone unturned, and you did your best. All the while, if you're working in a job you don't really enjoy, you'll at least have the daily opportunity to offer it up to God in gratitude because you, not the job, are the subject of work.

THREE MORAL TRUTHS ABOUT WORK

2010-02-03T13:36:00.002-06:00

PUBLISHED BY CATHOLIC BUSINESS JOURNAL ON FEBRUARY 9, 2009

Leadership at Work: Three Moral Truths

by Andrew Marquardt

Tucked away in my Kansas City office, I banged away a letter to the Wall Street Journal (Jan 29, 2009) questioning Merrill Lynch’s media-driven defense of executive bonuses in the face of 28 billion in losses. That exercise stemmed from an ongoing reflection, as a Catholic CEO and lawyer, about the principles that drive Catholic business leaders.

Years of experience as an employment law attorney and business owner have shown me peoples’ desire to be liked is so profound and so far-reaching it has created a society of passé, all-inclusive corporate cultures, which are partially grounded on leaders’ lack of conviction in, or confusion about, core philosophical, workplace principles.

Arguably, the fear of offending anyone has lead to the creation of a secular landscape, one that has been pulsating to varying degrees for several hundred years - as G.K. Chesterton said: “Since the modern world began in the sixteenth century, nobody’s system of philosophy has really corresponded to everybody’s sense of reality; to what, if left to themselves, common men would call common sense.”

Whether in times of peace or in times of workplace conflict, leaders must be able to depend on credible, common sense principles to back their decisions. And wouldn’t it be helpful if all leaders were able to call on a conscience formed by a universally accepted set of norms?

The Bible, including the Ten Commandments and numerous parables, is generally considered a solid backbone. But the cross-cultural appeal to the Bible many times leaves good-intentioned leaders of all faiths disputing what should be interpreted literally and figuratively. For Catholics, The Catechism of the Catholic Church (1994) is also useful, yet its brevity on workplace philosophy leaves us yearning for more.

Thankfully, we have more. In my opinion, leaders of all faiths would be well advised to study one of the best repositories of universally appealing moral and philosophical thought relevant to today’s working world. It consists of two Catholic encyclicals which add context and perspective to the primacy of the Bible: (1) Laborem ExercensEncyclical on Human Work) (, issued by John Paul II, September 14, 1981; and (2) Centesimus Annus (Centenary Encyclical on Capital and Labor), issued by Pope John Paul II, May 1, 1991. In synthesizing these encyclicals, one finds, among other essential social doctrines (economic systems, distribution of capital, and the role of the state) an adherence to three basic truths about the dignity of work: (1) work is good; (2) man must work; and (3) man is the subject of work.

I submit that an emphasis on, and the development of, these three principles will cause a positive perception of work to germinate, create awareness about the importance of each person’s contribution, and redirect the spotlight from profit to the individual worker. The underlying causes of the current economic climate serve as evidence that this philosophical recalibration is timely and necessary to aid leaders in efforts to build up workplace culture and each employee’s human dignity.

I’ll touch on each of the three tenets briefly, but strongly encourage every leader to read for themselves these encyclicals, in their entirety and several times, to gain a full appreciation of their enormous breadth and moral instruction.

Work is Good

“[M]an’s life is built up every day from work, from work it derives its specific dignity. . . the church considers it her task always to call attention to the dignity and rights of those workers, to condemn situations in which that dignity and those rights are violated and to help to guide. . . so as to ensure authentic progress by man and society.” (Laborem Exercens., 2,5).

It sure doesn’t seem like people build up their lives at work these days. How many times over the years have you heard, “I’m sick today,” “I’ll be in late,” “Not coming in,“ “I hate my job” ? We’re all guilty on some level I’m sure.

But if you live long enough, and manage people long enough, you’ll begin to suspect that an uninterrupted flood of these types of comments reflect a pattern disguising a deeper problem. And that problem may be the person’s expectations, set in motion by a set of circumstances well beyond the leader’s control. You know the person, the one that tends to view work as something to be avoided, changed, or at least limited as much as possible, especially when it fails to perpetually stimulate. And while finding fulfilling work is a legitimate end, short of earthly nirvana, chronic excuse making signifies something more symptomatic of a psychological view in contradiction with a common sense Christian ethos. That is, work, though not a continuous stream of excitement, is nevertheless a “good” to be enriched.

Think on Pope John Paul II’s words: “[W]ork is a good thing for man….It is not only good in the sense that it is useful or something to enjoy, it is also good as being something worthy,…to man’s dignity, that expresses this dignity and increases it. If one wishes to define more clearly the ethical meaning of work it is this that one must particularly keep in mind. Work is a good thing for man—a good thing for his humanity–because through work man not only transforms nature, adapting it to his own needs, but he also achieves fulfillment as a human being and indeed in a sense becomes “more a human being.”” (Laborem Exercens, 40).

Inspiration and enthusiasm are essential to employees. But the type I observe is a fleeting desire concealing a larger problem, namely, the search for meaning. As we all know, a catch-phrase such as “the search for meaning” typically falls short, in the long run, of fully conveying the larger problem. No person is designed to be a permanent, human stimulus rod. It’s foolish to expect it and too many decisions are based on an unrealistic search for it. What is needed is a mature understanding of what can help employees stay engaged over a long period.

The satisfaction that money provides only runs so deep. It’s the spiritual element, the spiritual connection, that needs to be tapped. Not the shallow, briefly enthusiastic, loud, exclusively evangelical route either—although it serves its purpose at times. We humans require something more sustainable, deep and abiding. We can begin with the orientation that “In this life we cannot do great things. We can only do small things with great love,” as Mother Theresa explained.

Doing small things with great love

This seasoned approach helps shift the immature person’s unreasonable expectation of what work represents. Small actions, such as mentoring an employee by taking him to lunch to discuss what’s reasonable can help. Talk about his job in the context of what it represents, not only what it represents to him, but where his job fits in with the organization and its broader usefulness to the world. It is the keen desire of each of us for a link between our work and helping other people that needs to be identified and fostered.

Done right, this approach can be modeled as a pre-emptive measure to thwart petty conversations and distracting comments such as: “He’s getting paid more than I am, and I do more,” “She’s not doing her fair share,” and “The boss doesn’t care.”

While an acute awareness of fairness can mimic the virtue of justice, too often it becomes a vice when the lips start smacking and the pot starts stirring, so to speak. See Matt. 20, regarding workers in the vineyard who started at different times of the day complaining about fairness of pay for those who started work later than they did; see also Matt. 25 and the parable of the talents that describes one servant who did a lot with what he was given and was therefore awarded more responsibility, compared to the less industrious servants. When a search for meaning is at the root of employees’ angst, provide specific examples of how the goods or services they provide benefits others.

“Work thus belongs to the vocation of every person; indeed, man expresses and fulfills himself by working.” (Centesimus Annus, 6). Recognizing and developing employees’ critical contributions is a great start to promoting a culture of “work is good.”

Man Must Work

From the premise “work is good” follows the basic truth that man must work.

“Man must work both because the Creator has commanded it and because of his own humanity, which requires work in order to be maintained and developed. Man must work out of regard for others, especially his own family, but also for the society to which he belongs, to the country of which he is a child, and for the whole human family of which he is a member, since he himself is the heir to the work of generations and at the same time a sharer in building the future for those who will come after him in the succession of history. This constitutes the moral obligation of work understood in its wide sense. (Laborem Exercens, 73).

Two points are here: (1) God commands us to work; and (2) following that command, we are obliged to continue the development of the world carried out by prior generations.

While “It is neither just nor human so to grind men down with excessive labour as to stupefy their minds and wear out their bodies” (Centesimus annus,7), equally troubling is the great danger today on the other end of the spectrum; namely, fighting laziness and inertia. Both extremes are always with us. The reality is we operate most of the time to varying degrees between the two extremes. Decision-making about performance is tough in that middle space.

For example, where a natural guilt might propel a person with a properly formed conscience to work harder, leaders are also confronted every day with the self-absorbed employee, who, through a gratuitous assessment of his superior efficiency and productivity, completely misses the point when he fails to put in his time. Such workers shirk more than their agreement to work for their employer, they also disregard God’s command.

I believe the best way to combat such aloofness is through exemplifying virtuous work habits. If this doesn’t change the behavior after appropriate personal conversation (work is good and your contribution is important) and discipline (you’re not doing the basics we agreed to), then there is arguably a moral and fiduciary obligation to terminate that person’s employment because the distraction represents a cancer to the nucleus of an otherwise healthy organization (more on this later).

Also justifying God’s command to work is our debt to prior generations. [None of us stand alone in history. Instead, we stand on the shoulders of those who came before us.] Farmers seem to recognize this ideal best since they often refer to their obligations to their ancestors who owned and farmed the land before them. These farmers don’t flinch from the challenge. They’d just as soon die in some cases than give up farming the land of their ancestors.

This attitude of appreciation is missing in the office culture. At best, people may commit to their “team,” but almost never talk about the generations that built up the world before them. Such omissions dilute the perspective that we’re part of a larger community of people.

In whatever way appropriate, a reference to prior generations, to humanity as a whole, should be acknowledged in our work environment. For example, car assembly line workers may be encouraged to think about retired and deceased workers who worked on earlier iterations of cars that made it easier for families to see each other over the decades. Today’s auto workers are building on that tradition by bringing energy-efficient vehicles to the marketplace.

In another example, a financial advisor can be instructive during these trying economic times. The advisor owes his industry knowledge to prior advisors’ work in creating and distilling an investment environment suitable for today’s clients. Lawyers too, another service business, owe their current positions to the building blocks put in place by generations of attorneys before them. You get the point. We are similar to a cog in the ongoing generations of humans. Our goal is to live by objective, universal truths to help us better our phase in human history.

If employees can visualize their work within an historical context, perhaps the intense focus on the “now,” “me,” and “money” will dissipate enough to lessen their agitation about work, and in turn, lead to a more productive, appreciative, and happy workplace culture.

Man is the Primary Subject of Work

Critically important in our culture is understanding that each individual is the subject of the work. The following excerpt, while long, could not be excised any further in order to convey the proper attitude:

“As a person, a man is therefore the subject of work…. And so this dominion spoken of in the biblical text being meditated upon here refers not only to the objective dimension of work, but at the same time introduces us to an understanding of its subjective dimension. Understood as a process whereby man and the human race subdue the earth, work corresponds to this basic biblical concept only throughout the process man manifests himself and confirms himself as the one who dominates…

“[Christ] devoted most of the years of his life on earth to manual work at the carpenter’s bench. This circumstance constitutes in itself the most eloquent gospel of work, showing that the basis for determining the value of human work is not primarily the kind of work being done, but the fact [that] the one who is doing it is a person. The sources of the dignity of work are to be sought primarily in the subjective dimension, not in the objective one.. . . This does not mean that from the objective point of view human work cannot and must not be rated and qualified in any way. It only means that the primary basis for the value of work is man himself, who is its subject. . . . [W]ork is for man, and not man for work.” (Laborem Exercens, 27).

These pronouncements are an unmistakable call to all leaders to treat employees with dignity and respect. For they are the subject of the work, and should never be held as commodities of production.

Dignity tends to surface in the context of differing views about appropriate treatment of employees who are charged with the duty to get something done—whether it’s generating sales, producing financials, or moving inventory. To be sure, the encyclical makes it clear that performance measurement is appropriate. The expression of one’s competence is found in the evaluation. And that competence, or lack thereof, will dictate the employee’s future. This hastens the advancement of the individual, as well as the organization.

My sales organization is a good case in point. We sell IT staffing services. Our success depends on our salesperson’s ability to acquire job requisitions from companies that are inundated with calls from my competitors. After that, it depends on my recruiters’ competence in finding suitable candidates for the job. Our industry spends billions a year on IT staffing.

Hundreds, if not thousands, of small firms like mine have men and women on the streets clawing and scratching for business. Do I get upset when the numbers are down? You bet. But I don’t fly off the handle (at least not anymore I don’t think) without first trying to understand why we’re off our numbers.

First, I ask, is the industry stable? Yes, because in our case, contracting is one of the oldest games around and people have historically spent money on technology. Then I examine each contributor’s daily activity. Barring other legitimate reasons such as health, have they had sufficient training, counseling, and mentoring, but still can’t get the job done? In such a case, it may be time for a change.

The key to dignified treatment of employees is not found in simply going through the motions. Rather, it’s found in the “way” the mentoring, disciplining or terminating occurs. An initial open and honest talk about your concerns is the launch pad. From there, depending on your business and size, a variety of options are at your disposal, ranging from performance improvement to termination. Critical is the leader’s demeanor and attitude. The proper use of the leaders “soft” skills typically determines whether an employee has been treated with dignity and respect. If the leader is somewhat lacking in this area, all is not lost. Where feasible, the leaders’ skills can improve through training.

More prevalent at the moment is severe job loss due to decreased societal demand for services and goods. In this current mode of uncertainty, the tendency to value production employees as commodities is even more acute. Think of manufacturing workers, securitization lawyers (lawyers who bundle mortgages to then sell as securities on Wall Street), hedge fund managers, bankers, restaurant owners, and dozens of other professions. Still, even if economic conditions dictate layoffs, the human person is still at the heart of the decision and their termination must be handled with regard to keeping his dignity in tact.

Pope John Paul II said it well: “Even by their secular activity they must assist one another to live holier lives. In this way the world will be permeated by the spirit of Christ and more effectively achieve its purpose of justice, charity and peace. Therefore, by their competence in secular fields and by their personal activity, elevated from within by the grace of Christ, let them work vigorously so that by human labor, technical skill and civil culture, created goods may be perfected according to the design of the Creator and the light of his word.” (Laborem Exercens, 117). “”[H]umane” working hours and adequate free-time need to be guaranteed, as well as the right to express one’s own personality at the workplace without suffering any affront to one’s conscience or personal dignity.” (Centesimus annus, 15).

It’s the leaders’ responsibility, a daunting task to be sure, to evaluate and understand the macro economic forces at play in the marketplace and then develop a workforce to meet the demand. Paramount to achieving this end is the development of the individual employee in a dignified manner, which when done right, constitutes a deliberate, moral effort to get everyone suitably employed in the current market.

Conclusion

Implementing the three principles regarding work—1. work is good, 2. man must work and 3. man is the subject of work—requires the integration of mental, emotional and physical action.

A statement by the recently deceased Father Richard Neuhaus, a Lutheran minister who converted to Catholicism and publisher of First Things, put the issue in perspective: “Politics is chiefly a function of culture, at the heart of culture is morality, and at the heart of morality is religion.”

This is consistent with John Paul II assertion, “At the heart of every culture lies the attitude man takes to the greatest mystery: the mystery of God. Different cultures are basically different ways of facing the question of meaning of personal existence. When this question is eliminated, the culture and moral life of a nation is corrupted. For this reason, the struggle to defend work was spontaneously linked to the struggle for culture and for national rights.” (Centesimus annus, 24).

In workplace environments all across the country, a legion of secularism, for lack of a better word, has been bred through personal behaviors, legislation, policy, and court decisions. This development has unfortunately left many well-intentioned leaders confused about the importance of drawing on spiritual and natural norms that predate much of this legislation, policy-making and rules of law. While much of the workplace, legal framework built up over the last century is foundationally good (ie, anti-discrimination laws), there still exists a malaise, partially moral, in today’s work environment. The causes are disputed, and personal, yet seem to center around people’s conception of work, its purpose, and its object.

As a plaintiff’s employment lawyer (now turned business owner), I’m reminded of a seminar I did for a group of managers at a large Kansas City company years ago. I used war stories to illustrate specific points, and then, as was my practice, summed up my remarks by saying simply, “Treat others the way you’d want to be treated and I wouldn’t get 99% of the phone calls I get from disgruntled employees.” Treat people well. “[B]eyond the rights which man acquires by his own work, there exist rights which do not correspond to any work he performs, but which flow from his essential dignity as a person.” (Centesimus annus, 11).

Lest we slide into self-righteousness, let’s never forget that all of us are “works in progress,” struggling with virtuous decision-making. How many of us wouldn’t revise prior conversations? And while the media fills its columns with stories about selfish leaders, who short of a Damascus conversion are totally disconnected from reality, the majority of leaders, I submit, recognize their status as “co-workers” and are capable of making better decisions, exhibiting healthier behaviors, and improving the workplace when confidently standing on the theological footing that “work is good,” “man must work,” and “man is the subject of work.” And while universal agreement on absolute truths may be a constant challenge, it’s the engagement of everyone in the work environment where we come to understand each other and grow. It’s here that the Holy Spirit is actively present.

Resolve Conflict. Different Ways.

2010-01-21T10:41:00.000-06:00

If you're human, you inevitably encounter conflict in your lives. At work, it can involve relationships with co-workers, clients, vendors, and candidates. One typically expects the people will work through the differences to an amicable solution.

There are times however where people simply reach an impasse where one party is being very unreasonable. In these cases, I've always advocated the people involved should invite a third party mediator to help clear up the problem resorting to legal action. This mediation, or Alternative Dispute Resolution (ADR) as it's sometimes called, gets the parties together to present their argument to a neutral third party. The parties separate into different rooms and each have an opportunity to visit with the mediator about their version of the facts. The mediator normally points out the flaws associated with the legal claims, and the cost and uncertainty of going all the way to trial.

Having litigated employment disputes for years as an employment lawyers, can tell you first hand the parties usually walking away from mediation with a sense they "lost." That's considered a good result, actually. If both parties feel they lost something, it means they both had to give up something to resolve the conflict. If one party senses they are a real winner, and the other a loser, then it's probably not a result that will stand. It sounds counterintuitive, but I've seen it happen so many times, I understand the experience. The point - once the emotions are taken out, everyone has to give a little. This allows everyone to move on to bigger and better things. If you don't know anything about mediation, or ADR, and want to learn more, or learn more about my personal experiences in this area, feel free to give me a call.

Know Yourself - Job Seekers

2010-01-15T11:53:00.001-06:00

Know yourself. Examining your personality, and all that involves, would go along way to avoiding disappointment candidates experience through rejection from prospective employers. I understand most of us can't just do whatever we want and hope to make enough money to support ourselves, let alone our families. Think starving artists. But that's not to say you shouldn't engage in some serious introspection as to what makes you tick. For example, are you more of an introvert (ie, you recharge from alone time), or extravert (ie, get charged from social involvement)? We all are some of both, but where does your personality predominately fit? And what types of jobs generally fit your personality? Outplacement services can help, but most people don't have the money. They need to elucidate what they can on their own through self-analysis and talking with friend, family, and peers. No doubt this process is ongoing and evolves over time, but just forcing yourself to do the exercise (write on white board identifying where your strengths and personality intersect with available jobs) will perhaps help avoid expending huge amounts of time chasing jobs that may be more trouble than what they are worth - meaning your sanity.

What if Your Client Cuts Your Consultants' Hours?

2010-01-12T09:42:00.000-06:00

Have any of you had a client mandate a reduction of hours for your consultants? This is typical for clients struggling with the economy. They're opting to retain good consultants in lieu of terminating their engagements. There's a knee jerk temptation to cut the consultants' pay since your firm's margins just suffered a hit. Cutting the consultants' pay only exacerbates the problem, however For example, if you're required to reduce their hours by 20%, say 40 hours to 32 a week, the consultants make 20% less money. If you try to pass along an additional reduction on the pay rate in an effort to preserve some margin, the consultants end up losing well more than 20%. Obviously, you need to make a prudent business decision, but since the consultants may already be looking for new gigs due to the 20% reduction in hours, it seems you almost ensure their eventual departure if you inflict an additional reduction in the pay rate. This isn't to say you should take a loss on the engagement (although at times that too may be advisable to preserve the relationship), but it's probably more important for everyone to share as equitably as possible the pain of a poor economic climate.

Contract Payment Terms with subcontract 1099 firms?

2010-01-04T09:38:00.000-06:00

Does your staffing firm enter into independent contractor agreements with subcontracting firms? Do these firms typically ask for net 30 payment terms (or less)? In a commerical setting (ie, subcontractor supplies you a contractor that you put on a commerical client site), these terms are pretty customary. But if you supply talent to prime contractors on government contract this "net 30" language can be problematic. Specifically, your staffing contract with the prime may say "you don't get paid until we [prime contractor] get paid by the government end client." In that case, you naturally don't want to pay your subcontracting firm until you get paid by the prime contractor. This way everyone shares the risk in the government's lag.

There are instances, however, where we agree to "net terms" in the subcontract - even in the face of our own contract with the prime that doesn't pay us until the prime is paid by the government client - when our client's track record has consistently demonstrated payment on a net 30 basis. Of course, even then, we propose "net 45" to allow us time to receive payment. It's never a smooth process, and each deal stands on its own, but I'd at least start with the position of paying the subcontractor within 10 days of payment by your client. Most of these subcontract firms are aware of the limitations associated with the government contracts, and oblige. At time they don't and you'll have to judge the risk on an individual basis. If the 1099 is a one person shop, we usually just pay every two weeks and take the risk. Good luck.

New Year's Resolution - Be More Efficient and Productive

2010-01-01T10:00:00.000-06:00

Happy New Year! A business publication noted this morning privately held companies of less than 500 employees employ half of the American workforce. It said their clients were paying slower, and there may be more belt-tightening. With that in mind, employees and business owners alike need to adopt an even more acute laser focus in 2010 to maintain client retention and satisfaction. Everyone on the team has a vested interested in the company's continued success. I remember quite well the tech bust in 2001, the real estate problems in the 80s, and the inflation issues of the 70s. In each instant, small business represented the backbone of society, and the recovery rode on their shoulders. But it won't be easy. The excesses of the 2000s have left many disillusioned and unprepared. I submit a simple recalibration and committed focus on your core business competencies, coupled with an eye on expenses (I wouldn't cut back on client entertainment), will lead to leaner, more productive business activity in 2010. This will lead the recovery. When small companies are more flush with cash, they'll start hiring again, and taking on more risk. Have a great 2010!

Can hiring managers create legally binding oral agreements?

2009-12-28T22:17:00.000-06:00

I've been asked many times over the years whether a written contract is required between a hiring company and the temporary staffing agency before they engage in legally binding business transactions. The answer is no. While written agreements are preferable to avoid later confusion, nothing prevents the parties from entering orally binding agreements. At times, the hiring company needs to move fast, faster than its legal department can move. The law's quite clear oral agreements are enforceable. But I would suggest, even in the absence of a traditional written agreement caught up in the legal department, the parties should exchange emails which state basic terms such as duration of contract, conversion terms, rate of pay, and payment terms. Hiring managers should be careful to hammer out these crucial details by email at a minimum with the temp agency's representative. In the event of a dispute regarding payment terms, or whether a contract (oral or written) was entered into at all, the law recognizes the hiring company is not allowed to be "unjustly enriched." As applied to temporary staffing, this means the hiring company would likely be obligated to pay the reasonable rate for the services provided by the contractor/resource - even in the absence of an oral or written contract. Typically, the parties work these matters out well in advance, and neither party wants to burn a relationship, but it's good to know for future reference.

Hiring - What clients can ask.

2009-12-14T17:13:00.001-06:00

HIRING - WHAT CLIENTS CAN ASK

I've been asked many times about what are permissible questions in the interview process in traditionally sensative areas. I've provided a generic list below. These do not substitute for legal advise.

Disability

Pre Hire Lawful Inquiry: Do you know of any reason that you would be unable to perform the job for which you have applied? Can you perform the functions of this job with or without reasonable accommodation? Please describe/demonstrate how you would perform these functions. How well can you handle stress? Do you work better under pressure?
Can you meet the attendance requirements of this job? How many days were you absent last year? Did you have any unauthorized absences from your job last year?
Do you illegally use drugs? Have you used illegal drugs in the last two years?
Do you have the required licenses to perform this job?
Do you regularly eat three meals per day?

Pre Hire Unlawful Inquiry: Do you have a disability or handicap? Have you ever been hospitalized? Have you ever been treated by a psychiatrist or psychologist? Is there any health related reason you may not be able to perform the job for which you are applying? Have you had a major illness in the last 5 years? Do you have any physical defects which preclude you from performing certain kinds of work? Do you have any disabilities or impairments which may affect your performance in the position for which you have applied? Are you taking any prescription drugs? Have you ever been treated for drug addiction or alcoholism? Have you ever filed a claim for, or received benefits of worker’s compensation? Do you have AIDS? Do you have asthma? How many days were you sick last year? Have you ever been injured on the job? How much alcohol do you drink each week?
Have you ever sought treatment for your inability to handle stress? Do you ever get ill from stress? Does stress affect your ability to be productive? Have you ever been unable to cope with work-related stress? Do you have open skin sores? Do you have boils? Do you have fever? Do you have dark urine? Do you have jaundice? How debilitating is your multiple sclerosis? Do you expect your condition to get worse? Can you walk? Would you need reasonable accommodation in this job? What effect does being in a wheelchair have on your daily activities? Do you ever expect to walk again?

Race or color
Lawful Inquiry: None
Unlawful Inquiry: Inquiry into complexion or color of skin. Coloring.

Religion or Creed
Lawful Inquiry: None
Unlawful Inquiry: Inquiry into applicant’s religions denomination, religious affiliations, church, parish, pastor or religious holidays observed. Applicant may not be told “this is a (Catholic, Protestant or Jewish) organization.”

Sex
Lawful Inquiry: None.
Unlawful Inquiry: Do you wish to be addressed as Mr., Mrs., Miss, or Ms.

Family
Lawful Inquiry: Can applicant meet schedules.
Unlawful Inquiry: Number of children, ages of children, child care arrangements.

Marital Status
Lawful Inquiry: None
Unlawful Inquiry: Are you married? Single? Divorced? Separated? Name or other information about spouse. Where does your spouse work? Spouses’ salary? What are the ages of your children, if any?

Birth control
Lawful Inquiry: None
Unlawful Inquiry: Capacity or intent to reproduce, birth control, family planning.

Age
Lawful Inquiry: Are you over 18 years of age? If not, state your age.
Unlawful Inquiry: How old are you? What is your date of birth?

Arrest record
Lawful Inquiry: Have you ever been convicted of a crime?
Unlawful Inquiry: Have you ever been arrested?

Name
Lawful Inquiry: Have you ever worked for this company under a different name? Is any additional information relative to your name, use of an assumed name or nickname necessary to enable a check of your work record? If yes, explain.
Unlawful Inquiry: Maiden name of a married woman.

Photograph
Lawful Inquiry: After hire.
Unlawful Inquiry: Requirement or option that applicant affix a photograph to application form at any time before hiring.

Address Duration of Residence
Lawful Inquiry: Applicant’s place of residence.
Unlawful Inquiry: Length of residence in this city or state?

Birthplace
Lawful Inquiry: None.
Unlawful Inquiry: Requirement that applicant produce proof of age.

Citizenship
Lawful Inquiry: Are you authorized to work in the United States? Requirement that applicant produce documentation as set forth on the I-9 form.
Unlawful Inquiry: Of what country are you a citizen? Are applicant’s parents or spouse naturalized, or native-born citizens of the United States; the date when such parents or spouse acquired citizenship.

Language
Lawful Inquiry: Not advisable. Inquiry into language applicant speaks and writes fluently, ONLY if directly related to the job requirements.
Unlawful Inquiry: What is your language?

Education
Lawful Inquiry: Inquiry into applicant’s academic, vocation or professional education and schools attended.
Unlawful Inquiry: Requirement that applicant identify dates of high school or college attendance.
Experience
Lawful Inquiry: Inquiry into work experience

Relatives
Lawful Inquiry: Names of applicant’s relatives, other than a spouse, already employed by this company. Only after hired – who to notify in case of emergency.
Unlawful Inquiry: Names, addresses, ages, number or other information concerning applicant’s spouse, children or other relatives not employed by the company. Name and address of person to be notified in case of accident or emergency.

Military
Lawful Inquiry: Invitation to describe any experience, including military experience, that the applicant believes to be relevant to the job.
Unlawful Inquiry: Inquiry into applicant’s general military experience or discharge. Repeat discharge papers.

Organization
Lawful Inquiry: Inquiry into applicant’s membership in organizations which the applicant considers relevant to his or her ability to perform the job.
Unlawful Inquiry: Listing of clubs, societies, and lodges to which applicant belongs.

Co-Employment Concerns

2009-12-14T17:08:00.000-06:00

THE HR EDGE IN TECHNICAL STAFFING
A Primer on the Law
Copyright © 2009

By Andrew Marquardt, Esq
Advantage Tech, Inc.
www.advantagetech.net

INTRODUCTION

Do you manage employees or temporary workers? Do issues such as job assignment, job responsibilities, benefits, co-employees, or the environment and culture get in the way of moving forward with business? Do you feel paralyzed as to what you can do or say with contract employees? If so, you’re not alone.

As an employment law attorney and owner of an IT staffing firm, I’ve listened to hundreds of managers vent their frustrations about what can be done. Having tried and litigated employment cases through arbitrations, bench trials, and jury trials, coupled with my experience as an IT staffing company owner who has sold staffing services to IT managers, I can offer some insights that will help IT managers and HR specialists work through human resource issues relating to their temporary work force.

The Microsoft case of the late 1990s, where Microsoft was liable for retroactive benefits to contractors previously classified as employees by the federal government, ushered in a new era of case law analyzing the relatively new three-part relationships that exist between client managers, staffing firms, and the temporary workers. Based on my field experience selling staffing services, very few managers are aware of the laws affecting their relationships with these temporary workers and what they can do to minimize exposing themselves and their companies to lawsuits.

Whether it’s wage and hour issues, discrimination problems, harassment claims, safe work environment agendas, union organization, or other employment related laws, every manager must have a solid grasp of legal principles impacting the relationship between the company and temporary employees – regardless of their classification as 1099 contractors, w-2 employees of the staffing firm on contract, or w-2 employees of the staffing firm on a contract-for-hire assignment. Armed with up-to-date legal information, managers and human resource professionals can feel confident about making decisions on their teams in order to achieve their ultimate business objective.

One final note, this guide is an overview of the laws I perceive as being the most applicable. There are certainly a host of other employment legal principles not discussed in this book (ie, breach of implied contract, torts such as fraud, and intentional interference with business expectancy) but they haven’t dramatically affected the issues most central to the development of the three-part relationship between clients, contract employees, and staffing firms. For more in depth analysis on a case-by-case basis, your best defense is to contact a competent employment law attorney.

Let’s get started.

DEFINITIONS

Temporary staffing, employee leasing, contracting, and a host of other names have been used to describe the temporary staffing market. For the purposes of this book, I will simply refer to the agency as the staffing firm.

Likewise, there are numerous names for the contract employees, such as contractors, temps, free-lancers, employees, contract employees, leasing agents, and the like. The manner in which an employee is classified has significant tax and non-tax consequences. For the purposes of this book, I shall refer to the staffing firm’s w-2’d contractors assigned to client sites as contract employees. Where there’s a need to differentiate between contract employees and 1099 independent contractors, I will make those notations evident.

I. WHO’S THE EMPLOYER?

There is a significant body of employment law - all of which affects your contract employees. The sheer scope can be intimidating. On several occasions, managers have voiced their frustrations to me about the law’s impact on their ability to make decisions. While it’s true the laws can be intrusive, it doesn’t mean they can’t be filtered in such a way that allows you to effectively handle human resource issues.

A. CO-EMPLOYMENT CONCEPT
“Co-employment” is the legal term of art used by former employees, turned plaintiffs, arguing the courts should invoke “joint and several liability ” against both the client and the staffing firm. Typically the term is applied in cases where the court has determined the client has exercised sufficient control over the contract employee such that it should be recognized as a joint employer with the staffing firm. Once this happens, numerous legal implications arise, ranging from paying employer taxes, offering health and disability benefits, to exposure for lost stock options and other employee benefits.

Accordingly, you want to do everything in your power to ensure the contract employees are not “employees” of the client. To do this, you must have an understanding of the current state of the law so you can take appropriate action.

Various federal agencies have invoked policies to help determine who’s the employer. These include the Internal Revenue Service (IRS), the Equal Employment Opportunity Commission (EEOC), the Department of Labor (DOL), and the Occupational Safety and Health Administration (OSHA). The maze of varying tests can be reconciled by one common denominator: who controls the work environment such that the federal agency and/or the contract employees can determine on whom to pin certain responsibilities.

B. CO-EMPLOYMENT/AGENCY LAW
Courts have traditionally applied the objective test from the common law of agency to determine employment relationships. Under common law standards, a worker is generally an employee of the firm that exercises the most control over the worker’s job. Community for Creative Non-Violence v. Reid, 490 U.S. 736, 751-52 (1989). This typically means a firm that simply issues a paycheck is not the employer. Professional and Executive Leasing, Inc. v. CIR, 862 F. 2nd 751 (9th Cir. 1988).

The United States Supreme Court said in Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992), “since the common – law test contains no shorthand formula or magic phrase that can be applied to find the answer . . . all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.” Importantly, the IRS was cited in the Darden case, saying “the relationship of employer and employee exists when the person or persons for whom the services are performed have the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work, but also as to the detail and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but as to how it shall be done. In this connection it is not necessary that the employer actually direct or control the manner in which their services are performed; it is sufficient if the employer has the right to do so.” IRS Revenue Ruling 87-41 (1987-1 Cum. Bil. At 298)(italics and emphasis added).

As one might imagine, this language can be read two ways: one favors an argument against co-employment (ie, the staffing firm has the right to control the contract employee) and the other favors co-employment (ie, the client controls the day-to-day affairs of the employment).
Since the courts regularly look to the Internal Revenue Service (IRS) and the Department of Labor (DOL) for guidance, let’s see how these agencies view the issue.

C. CONTROL DETERMINATION
1. IRS STYLE
At the outset, you need to understand the IRS typically won’t get involved in the three-part relationship as long as someone is paying the employer taxes – an obligation normally absorbed by the staffing firm by contract. But when 1099 independent contractors are used, the IRS may scrutinize their work function in an effort to see if they should be reclassified as employees, thus subjecting the employing entity to employer taxes. Although a short contractual indemnification provision protects you, the client, it’s still advisable to be familiar with the IRS control criteria: behavior control, financial control, and type of relationship. The more control, the more likely that entity or several will be considered employers under the co-employment doctrine.

Behavior Control
Who controls the person’s behavior? The more control, the more likely that entity will be determined to be the employer. Issues such as control over how the tasks are performed, how the results are achieved, who instructs, and what training is involved all provide relevant clues to the control question.

Financial Control
What financial items are paid by the boss, whoever that might be, and what’s paid by the worker? Relevant factors include reimbursement of expenses, the worker’s investment in tools, is the worker available on other jobs, how is the worker paid, can the worker realize profit since an employee cannot?

Type of Relationship
The IRS will look at any contracts, benefits accrual, insurance, vacation pay, sick pay, pension plans, expectations of full-time employment and the like. How long a worker plans to work at the site is very indicative of the worker’s status. The more important the worker’s function is to the business, the more likely the worker will be perceived as an employee.

2. DOL STYLE
The DOL’s wage and hour division, which has prosecutorial jurisdiction over the Fair Labor Standards Act (FLSA), has issued regulations related to “joint employment” relationships. 29 C.F.R. section 791. It says a joint employment relationship may exist where (1) there is an arrangement between the employers to share the employee’s services; (2) one employer is acting in the interest of another employer in relations to the employee; or (3) the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee. 29C.F.R. section 791.2
If the joint employment relationship is found, then both the client and staffing firm are “jointly and severally” liable for all wage and hour laws under the FLSA, which ordinarily means an issue regarding overtime. The wage and hour division has issued an opinion letter, which although it doesn’t have the force of law, is instructive of its position. It says “employees of a temporary help agency working on assignment in various business establishments are joint employees of both the agency and the business establishment in which they are employed.” Wage-Hour Administrative Ruling No. 781 [Transfer Binder] Lab.L.Rep. (CCH) ¶. 30, 778 (1968). The employer could be exposed, not just to wage obligations, but also to penalties, fines up to $10,000 and imprisonment for willful violations.

The FLSA’s six factors are as follows:
(1) the degree of the alleged employer’s right to control the manner in which the work is to be performed;
(2) the alleged employee’s opportunity for profit or loss depending upon his managerial skill;
(3) the alleged employee’s investment in equipment or materials required for his task, or his employment of helpers;
(4) whether the service rendered requires a special skill;
(5) the degree of permanence of the working relationship; and
(6) whether the service rendered is an integral part of the alleged employer’s business.
Other statutes like the NLRA, FMLA, ADEA, and ADA, though seen to a lesser extent than FLSA, Title VII and ERISA, are nonetheless important to keep in mind. Again, the courts have used a variance of the control methods laid out in the case law that mirrors the law set forth above.

D. FORGET CONTROL, LOOK AT “INTENT OF THE PARTIES”
By now, it appears the use of contingent labor forces clients to concede their status as a co-employer for legal purposes. Not so. Unquestionably, the IRS and DOL analyses, as used and supported by most of the courts, are clearly in the “control” camp. But these analyses are outdated and contain features of employment analysis that have little to do with the parties’ right to contract. This is where the shift is occurring in the minority of the courts.
By way of example, using the IRS language, supported by case law, you can argue the staffing firm has the right to control the environment. Dunn, supra. This factor, coupled with several judges’ noteworthy reliance on the expansion of common law principles recognizing the need to evaluate the parties’ intent, provides you with a legal basis to disassociate the client from “employer” status relative to contract employees. After all, we are not dealing with the same old dualistic employer and independent contractor paradigm that existed when the old law was written. Instead, in the case of worker leasing, the three- sided labor relationship is created and, “control is relatively insignificant because the purpose of the labor relationship is to separate control from other terms of employment.” Metropolitan Water District of Southern California v Superior Court, 9 Cal. Rptr. 3d 857, 20 IER Cases 1769, 32 Employee Benefits Cas. 1327, 4 Cal. Daily Op. Serv. 1658, 2004 Daily Journal D.A.R. 2469 (Sup.Ct. Ca. 2004)(J. Brown concurring and dissenting)(italics and emphasis added) In fact, the Restatement of Agency, the law the “control” courts rely on, says it’s relevant to see “whether or not the parties believe they are creating the relation of master and servant.” (Rest. § 220 subd. (2)(i)). This clearly opens the door for evaluating the relationship based on the parties’ intent, not who controls the workplace.
Arriving at this change in jurisprudence may be easier in some jurisdictions than others. Even so, later in the primer, I’ll make some suggestions to work within the “control” camp to help you break that entrenched mode of co-employment for contract employees.

II. SPECIFIC STATUTES
A. ERISA
Employee benefits is one of the most prolific areas of law affecting temporary staffing today. The reason being “contract employees,” as the key ingredient in this era of the three-part employment relationship, may want to reap the rewards of clients’ stock options and benefit plans.

The Employee Retirement Income Security Act (ERISA) is the primary law affecting employee benefits. A determination of whether a person is an employee or not, and thus covered by an employer’s welfare or pension plan subject to the ERISA laws is of great importance.

1. ELEMENTS/ FACTORS
To assert a claim under ERISA, the plaintiff must be either a “participant” or a “beneficiary” of an ERISA plan. See 29 U.S.C. § 1132 (a)(1). The United States Supreme Court held in Darden, supra, that the term “employee” as used in ERISA refers to the common law analysis, which looks to fourteen factors. The courts consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to the inquiry are the skill required; the source of the instrumentalities and tools; the work location; the durations of the parties; relationship; whether the hiring party has the right to assign more projects to the hired party; the extent to which the hired party may decide when and how long to work; the payment method; the role of the hired party in hiring and paying assistants; whether the work is part of the hiring party’s regular business; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

2. CASE LAW
In the infamous Vizcaino v. United States Dist. Ct. for the Western Dist. Of Wash, 173 F3d 713 (9th Cir. 1999) case, the Ninth Circuit court considered whether leased employees (temporary agency employees) who provided services to Microsoft were employees for the purposes of participation in Microsoft’s employee stock purchase plan. Feeding into our argument that times have changed, the court recognized “that the assessment of the triangular relationship between worker, temporary employment agency and client is not wholly congruent with the two-party relationship involving independent contractors.” Nevertheless, since the leased workers were not specifically excluded from the benefit plan documents, they were to be included and thus, entitled to the stock option benefits. The same result occurred in Burrey v. Pacific Gas & Electric Co., 159 F.3d 388 (9th Cir. 1998).

Compare the Microsoft case with others reviewing the three-part relationship between contract employee, staffing firm, and client, concluding that if the plan document excludes leased employees from the plan, they cannot even make the claim for benefits. Wolf v. Coca-Cola Company, 200 F. 3rd 1337, 1340-1341 (11th Cir. 2000)(leased employees were not entitled to ERISA benefits because, under the client’s ERISA plan, leased employees were specifically excluded); Casey v. Atlantic Richfield Co., 2000 WL 657397 (March 30, 2000); Abraham v. Exxon Corp., 85 F. 3d 1126 (5th Cir5l. 1996)(leased employees excluded from ERISA plan by definition); Bronk v. Moutain States Tel. & Te., Inc., 140 F.3d 1335 (10th Cir. 1998)(leased employees could not prevail despite their status as common law employees because the plan excluded them); MacLachlan v. Exxon Mobil Corp., No. 02-31240, 2003 WL 22508859 (5th Cir. Nov. 20, 2003)(assigned workers at Mobil were not considered regular employees of Mobil and therefore not eligible under Mobil’s ERISA plan); Edes v. Verizon Communications, Inc., No. Civ. A. 01-011742 – PBS, 2003 WL 22429705 (D.Mass. Jul. 25 2003)(ERISA does not prohibit discrimination in the provision of benefits); Boggess v. Monsanto Co., No. Civ A. 2:01-1300, 2003 WL 715985 (S.D.W.Va. Feb. 10, 2003)(contractor excluded from benefit coverage under the terms of the pension and medical benefit plans).

The lesson here is that, had Microsoft drafted plan language that excluded the leased employees from coverage under their ERISA plan, they would not have been exposed to the enormous stock option liability.

B. TITLE VII
1. AGGREGATION
Before employees can file a Title VII discrimination claim, they have to show the employer has more than fifteen employees. Creative employees look for ways to “aggregate” the staffing firm’s employees with the client’s employees if there’s ever a question about the number of employees necessary to satisfy this initial jurisdictional requirement.

Courts generally look to a joint employer test. Bristol v. Bd. Of County Comm’rs, 312 F.3d 1213, 1218 (10th Cir. 2002); Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 123 S. Ct. 1673, 155 L.Ed.2d 615 (2003)(common law element of control is the principal guidepost governing employer-employee status).

Under the joint employer test, it is acknowledged that the staffing firm and the client are separate entities, but the claim is made that they both control essential terms and conditions of employment, such that both should be jointly and severally liable. See Blagg v. The Technology Group, Inc. 303 F.Supp. 1181 (D. Colo. 2004)(technical recruiter could not aggregate two companies payrolls to meet threshold number of employees to sustain a Title VII claim). Relevant factors include the commonality of hiring, firing, discipline, pay, insurance records, and supervision. Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350 (11th Cir. 1994).

One line of cases argues for the aggregation under the joint employer test based on liberal construction of the term “employer.” Virgo, supra (court construed term “employer” liberally and held two companies employees aggregated to satisfy the fifteen person prong to continue the lawsuit); March v. Tech. Employment Servs, Inc., No. Civ. 98-636-M, 2000 WL 1480371 (D.N.H. March 3, 2000)(temporary staffing agency retained sufficient control over placed workers to be considered joint employer with clients who were responsible for the plaintiff’s work conditions); Burdett v. Abrasive Eng’g & Tech., Inc., 989 F.Supp. 1107, 1111-12 (D.Kan. 1997)(following Virgo and applying joint employer test to conclude employees of temporary staffing agency used by client should not be aggregated because only six of the temp employees worked for the client).

Contrasting the foregoing, another line of case law resists allowing plaintiffs to use the joint employer doctrine to aggregate employees of small businesses to meet the fifteen employee threshold to maintain a Title VII claim, arguing such a measure would thwart the legislative purposes of Title VII. Prunella v. Carlshire Tenants, Inc., 94 F.Supp.2d 512 (S.D.N.Y.2000); Serrano v. 900 5th Ave. Corp., 4 F.Supp.2d 315 (S.D.N.Y. 1998)(no aggregation, discussing legislative purpose of mitigating litigation costs and the burdens of Title VII compliance on small businesses); Lauren v. Pokoik, No. 02 Civ. 1938 (LMM), 2004 WL 513999, S.D.N.Y. March, 15, 2004).

Aggregation, or lack thereof, can save a small client from being sued for Title VII violations. Although it shouldn’t keep you up at night, it’s an important jurisdictional defense to keep in mind if you’re a small employer.

2. TITLE VII LAW
Assuming you are subject to the law, Title VII of the Civil Rights Act of 1964 prohibits discrimination with respect to compensation, terms or conditions of employment because of a person’s race, sex, color, religion, or national origin. In 1997, the EEOC issued “EEOC Policy Guidance on Contingent Workers,” which describes the agencies perspective on the staffing firms and clients respective responsibilities related to Title VII, as well as the Americans with Disabilities Act (ADA), the Equal Pay Act (EPA), and Age Discrimination in Employment Act (ADEA). Generally speaking, the guidelines are not the law, but are important because the courts typically will look to the agency with oversight of particular areas of law.

As previously gleaned, the case law generally considers the client the “employer” along with the staffing firm for the purposes of Title VII litigation. Callicutt v. Pepsi Bottling Group, Inc. No. CIV 00-95DWFAJB 2002 WL 992757 (D.Minn. May 13, 2002)(since client controlled means and manner of assigned workers’ jobs, court ruled against the staffing firm’s client holding the client was the employer of assigned workers in Title VII discrimination case). Be careful though, because in some cases the courts have allowed staffing firms out of the case when it didn’t know of the alleged problem. Coles v. Kelly Services (D.D.C. 2003)(staffing firm not liable for Title VII claim since they were never notified of the harassment); Neal v. Manpower International, Inc., No. 3:00-CV-277/LAC, 2001 WL 1923127 (N.D. Fla. Sep. 17, 2001)(staffing firm could not be held liable for sexual harassment by a client’s employee since the firm was not informed about the harassment, but could be liable if it knew or should have known about the conduct and failed to take corrective action). The lesson here is to always keep the staffing firm abreast of what’s going on with the contract employees, not to mention involving them in several other aspects of the employment which will be discussed later.

It’s important to note that in some states, employers, whether they’re the client, the staffing firm, or both, are “strictly liable” – meaning the courts will charge the employer with liability even if upper management didn’t know of the alleged Title VII violations.
Despite the foregoing, there are actions you can take (discussed in next section) to minimize you and your company’s exposure.

C. WORK RELATED PERSONAL INJURY CLAIMS AGAINST CLIENTS
Personal injury claims take on a different look when contract employees are involved. Questions arise as to who’s the employer, and whether clients can use the workers compensation exclusive remedy rule to defend against personal injury cases brought by contract employees. The rule allows “employers” to cap any damages they might owe to an employee injured at the workplace who might otherwise make a bundle in a civil action not involving an employer. Hence, this is one instance where the client is happy to be classified as a “co-employer.” See Poyner v. Georgia Pacific Corp., No. Civ. A 02-7937, 2004 WL 595265 (E.D.Pa. March. 1, 2004)(since client controlled duties of assigned workers, it was protected by the exclusive remedy rule of workers compensation statute); Cruickshank v. Dukes, No. 2002-1567 KC, 2003 WL 22765150 (N.Y. Sup. App. Ter, Oct. 16, 2003)(workers’ compensation exclusive remedy rule protected client from personal injury suit brought by assigned worker); Wingfoot Enterprises v. Alvarado, No. 01-0825, 2002 WL 32126138 (Tex. Jul. 3, 2003)(Texas Supreme Court rules exclusive remedy rule can protect both staffing firm and its client from injury suits brought by assigned workers); Garza v. Excel Logistics, Inc., No. 01-00-00256-CV 2002 AWL 1041050 (Tex.App., May 23, 2002)(staffing firm client was protected by exclusive remedy rule from personal injury suit by an assigned employee since it had a right to control the employee’s work). Ironic as it sounds, clients would not be able to avail themselves of this exclusive remedy unless they were considered the “employer” or “joint employer” of an assigned worker.

In sum, the exclusive remedy rule generally protects clients, but it comes at a price – they must be considered an employer.

D. WORK RELATED PERSONAL INJURY CLAIMS BETWEEN WORKERS

Usually the exclusive remedy rule also shields lawsuits between employees. For instance, the Virginia Supreme Court ruled a staffing firm was not liable for the actions of a contract employee because it was not foreseeable that the contract employee posed a threat to others. See Interim Personnel of Central Virginia, Inc. v. Messer, 559 S.E.2d 704 (Va. Mar. 1 2002). The court made its determination even though the employee had a history of driving while intoxicated, which he concealed from his staffing firm, but concluded the staffing firm’s placement at the client was not the proximate cause of the plaintiff’s injuries. See also, Accountemps v Shelton Laundry Co., No CV990363683S, 2002 WL 959909 (Conn. Super. Ct. Apr. 17, 2002)(staffing firm not liable for conduct of former employee who forged checks made payable to the client and used the client’s accounts without permission).

A couple of courts have taken a different position. In SOS Staffing Services, V. Field, No. 01-932, 2002 WL 311 08081 (Wyo. Sep. 24, 2002), the court reviewed the facts of case where a vehicle driven by an assigned worker that was also carrying one of the client’s employees was involved in an accident. Although as least ten states recognize clients as “special employers,” and most state workers’ compensation statues protect fellow employees from suing one another for work-related injuries, Wyoming was the exception here. The Wyoming Supreme Court ruled that the staffing firm’s employee was not immune from suit since no employment relationship existed between the staffing firm employee and the client.

Likewise, in Butts v. Express Personnel Services, No. 24274, 2002 WL 465237 (Mo. Ct. App. Mar. 28, 2002), the Missouri Court of Appeals ruled that a staffing firm was not immune from a lawsuit brought by an employee of another firm. The court noted workers compensation laws does not bar an individual from suing a third party with whom the employee does not have an employment relationship.

A word to the wise, hire responsible people, stay in constant contact, and review them frequently.

III. WHAT CLIENTS CAN DO?

A. PRACTICAL TIPS
Since you don’t want to find yourself in court, let’s see what you can do on a day-to-day basis to mitigate you and your client’s exposure.

Initially, I’d suggest finding particular activities you can safely hand off to the staffing firm. One obvious move would be to allow the staffing firm to execute the performance evaluations. Another would be the deliverance of any special recognitions. And without question, terminations should be carried out by the staffing firm. Even going so far as to require the contract employee to email a one to two sentence statement every day to the staffing firm contact describing the day’s activity may be effective. These measures should not be overly intrusive and allow the staffing firm to have a firmer hand in the day-to-day activities.
Beyond the legal benefits of such actions are enhanced business communications. You’re freed up to focus on the core business, leaving primarily human resource functions to the staffing firm. You can rest easier knowing even the smallest nuances associated with contact employee performance (ie, attitude, tardiness, performance) can be hemmed-in at the earliest opportunity when the short, daily information emails are required. This way, you only handle periodic directional issues relating to the contract employee’s work. With the changes, it now appears the bulk of the “control” is with the staffing firm.

This shift in human resource activity also represents added value to you, the client. In a sense the staffing firm dually operates as an off-site human resource company that concurrently assumes enough responsibility that the “control” courts would be hard-pressed to label you a “co-employer.”

B. ALWAYS HAVE CONTRACTUAL INDEMNIFICATION
If the practical tips mentioned above don’t shield you from characterization as a “co-employer,” do your company a favor and make sure legal counsel has included a contractual indemnification provision with your staffing firm.

An indemnification provision could read as follows:
Staffing firm will indemnify client and their respective directors, officers, agents, employees and customers from and against all claims, damages, losses, liabilities, costs, expenses and reasonable attorney’s fees (collectively “damages”) arising out of a claim against client resulting from or alleged to have resulted from any act or omission of staffing firm or any employee or agent of staffing firm (including any employee or agent provided by staffing firm to provide services for or on behalf of client) under or related to this Master Services Agreement or related to personnel compensation.

One cause for alarm, however, is even with the provision, you may still be left holding the bag as a “co-employer” if the staffing firm goes out of business or is insolvent. Do the following to protect yourself against this potential:
-demand adequate proof of the staffing firm’s insurance;
-demand to be added as an additional insured;
-demand a review of the company’s last five years of profit and loss statements (preferably audited);
-demand trade references;
-obtain a Dun & Bradstreet report:
-demand executive summaries of staffing firm executives;
-meet the team working on your account;
-review staffing firm’s retention program; and
-communicate about all issues affecting the contract employee.
Following these tips will provide you greater confidence when executing an agreement with the staffing firm.

C. THE LEGAL ARGUMENT
In the unfortunate event you find yourself in litigation, follow the line of reasoning discussed earlier. That is, argue the new shift in the case law that you and your company are not “co-employers” of contract employees because it was never the parties’ intent during the contract to be an employee of the client. With so much of today’s workforce being comprised of contingent labor, your company’s legal counsel will need to be familiar with this concept.

Saddling you and your company with the co-employer doctrine has tremendous ramifications on businesses trying to grow through the use of contact employees. You may even forgo organic growth, and thus halt expansion opportunities.

If you’re unable to persuade a court to adopt the analysis that values a review of the parties’ intent as the benchmark, there are nonetheless several actions I mentioned earlier you can point to under the “control” analysis that would give a court plenty of evidence to let you and your company off the hook, thus labeling the staffing firm as the sole employer.

CONCLUSION

The central legal issue is co-employment and how to avoid it if you’re a client who has a contingent workforce. One can do it through: (1) implementing several day-to-day measures providing, in reality, the appearance the staffing firm is the employer; (2) obtaining a contractual indemnification after performing due diligence on the staffing firm’s solvency; and (3) if in litigation, arguing the minority of the case law which looks to the parties’ intent and not control.
These actions taken together can go a long way in preserving a quality relationship in this new three-part labor relationship that permeates much of American society today.
Good luck and call with any questions.