Archive: October, 2009

In 2007, Adam Childers, a cook at a restaurant chain called Boston’s The Gourmet Pizza, injured his back while at work. Doctors determined that Childers was overweight and without weight-loss surgery, the back injury couldn’t be fixed. Childers was advised to undergo weight-loss surgery and the company was forced to pay for it as part of the Workers’ Compensation claim.

The company argued that Childer’s weight constituted a pre-existing condition for which it was not responsible. But the Indiana Court of Appeals ruled differently, saying that the employee’s pre-existing obesity, combined with his back injury and subsequent weight gain, formed a new work-related “single injury” the employer was responsible for treating.

There was a similar case in August in which the Oregon Supreme Court ruled that an employer was responsible for paying for weight-loss surgery for an employee who needed a knee replacement but had to lose weight first.

Although such cases are still rare, I can see how paranoid employers might use it against hiring people who are considered “obese.” (According to data from The Centers for Disease Control and Prevention, about two-thirds of Americans are overweight, and 27 percent — about 72 million — are obese.)

The overweight, like smokers, are not protected by the ADA and haven’t historically had much success claiming they were discriminated against.

There’s also the definition of “obese” to contend with. As defined by the National Institutes of Health, you are obese if you have a Body Mass Index (BMI) of 30 and above. (A BMI of 30 is about 30 pounds overweight.) A BMI is a person’s weight in kilograms divided by his or her height in meters squared.

There’s really no good weapon to fight against discrimination based on weight, but states can create insurance pools similar to the “second injury funds” established to encourage employers to hire disabled individuals. The funds help employers pay for pre-existing disabilities further complicated by workplace injuries.

I get a lot of email from people who find themselves in dreadful work environments. Last week, however, I got a rather unusual email from a woman who has pretty much resigned herself to a bad work environment and has managed to survive the resident tyrant. Her issue is: What can she do about tyrannical behavior that she sees being inflicted on others?

Here’s the upshot of the email (hold on to your hats, this is quite a ride):

I have worked at the same small finance company for almost 20 years. For about 18 years, another woman (I’ll call her “Alice”) has worked here as the head of Accounting.  We both report to the same person, which makes her my co-worker.  Over the years, I have managed to negotiate a “treaty” with her, i.e., I let her know that if she continued to try to micro-manage me, she would get more trouble than she could handle.  As a result, she has backed off with me.

However, any time I have to go into her department, I am faced with the brutal micromanaging that she practices on her employees.  I am in charge of the computers.  When I go into her department to work on one that is broken, Alice charges out of her office at me, demanding to know what I am doing there.  She admits to me that she wishes people were robots.

She continually threatens to fire employees at management meetings, and she always has what she thinks is a good reason, but she never does it. Alice complains that she has an extreme absenteeism problem in her department, but then says “don’t you dare say it’s MY fault!”

She tells her employees when they can take bathroom breaks.  She leaves work at 4 pm, and then spends hours in the evening on the phone every day making all her department report back to her everything they do, minute-by-minute.

My problem is this: I think of myself as an ethical person.  Since I do not report to Alice, nor does she report to me, it would probably be argued by most that my duty is to keep out of things, and keep my mouth shut.  But it is intensely painful to go into her department day after day, and have to witness the way she treats her employees.  Never mind what it does to undermine company resources and productivity…what about the human cost?

Oh, and I guess I should tell you: Alice is the HR person in our company.  The only one.

My response:

You know what’s worse than reading an account of a very troubled person wreaking havoc on the workplace? Finding out that person is the HR department.

I have to say that I greatly admire you for attempting to deal with Alice and being relatively successful at lessening her effect on your working life. Much of the time, workplace behaviors can be tamed or altered just by having them pointed out to a person, but honestly, I don’t think it would matter in this case, especially given the way she reacts to comments she only perceives as criticisms. And if she’s in HR, she almost certainly understands what constitutes a hostile work environment, but she obviously doesn’t care.

Couple of things, though: I’m wondering why the other employee asked, in the event of her firing, if you would report Alice as a workplace bully? Why doesn’t she report her herself? (Other than the obvious reason that she fears being assaulted.)

What is the physical proximity of your mutual boss and any other people further up in the company? Can they not see and hear this behavior themselves? My guess is that they can, and they are too afraid to do anything or are perhaps benefiting from extra productivity due to her kooky micromanagement.

I, like you, would be disturbed by what you see secondhand going on with Alice and her existing employees. Even being a witness to that constitutes a hostile work environment, so you would be within your bounds to say something. But that wouldn’t be nearly as effective as one of her own employees doing it. Do you have the kind of relationship with your mutual boss where you could “throw it out there” and see how he reacts?

When I emailed my response to the original email sender, she replied:

I have a formal medical diagnosis of Asperger Syndrome.  That is sometimes referred to as “high-functioning autism.”  We don’t keep statistics in the U.S. but in Great Britain, where autistic spectrum disorders are much better known and understood, the employment rate for adults diagnosed with spectrum disorders is 11%.  Notice I said “employment rate”, not “unemployment rate”.  I’m a rare bird, and I’ve spent my entire adult life hanging on by the skin of my teeth.  This is why I can’t just get up and leave.

Alice had an autistic brother, and from the way her parents treated her, it’s possible they might have fallen somewhere on the autistic spectrum.  Her behavior could also be the result of being somewhere on the autistic spectrum.  That is probably why she can read information about harassment, but can’t see it and/or can’t understand it when she, herself, is doing it.

As to why others in the company are not noticing the dysfunction of Alice, the writer explained that it’s because they have plenty of their own dysfunction going on, including one manager being sued for sexual harassment (he told one woman she had to sleep with him or she’d lose her job) and a VP with anger control issues. The VP once left our writer 10 screaming voice mail messages at night asking why his computer wasn’t working, and was discovered writing porn about one of his employees and kept it on a file server accessible to the whole company. He was not fired for either infraction.

So, apparently, help from the execs is out of the question. Our writer stresses that she has faced so many employment obstacles due to the Asperger’s syndrome that she does not want to leave this place. Her only concern is easing her conscience of the guilt of witnessing a fellow employee being abused by Alice.

If leaving is out, then I’m not sure good will come of taking action on behalf of another person. We can be 99% sure that it will not do your career any good at that madhouse, and it may end up with that employee (and you) getting fired anyway. Maybe you can counsel the other employee in the ways you’ve developed in order to deal with the people in that House of Hell?

My primary advice would be to consult a lawyer. In the U.S., we have the Americans with Disabilities Act that offers resources for people in your situation. I’m not sure what Great Britain has, though here is an Employment Fact Sheet that might help. You may want to consult an employment or disabilities lawyer just to see what other options you have. In my fantasy world, you would be able to sue them and retire on the settlement.

My readers have a wealth of experience, so I will open this up to them and see what suggestions they can give you.

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According to a piece by Barbara Kiviat for Time magazine, your next job interview could take place via webcam.

Some companies are moving to this trend to save money, particularly in those cases when job candidates are flown in for a job interview. I’m all for saving money and for the idea that a job candidate might be more relaxed in the comfort of her own home, but, frankly, I don’t think the technology’s limitations would make for a very relaxing interview. I’ve never been in a meeting in which video was involved where there haven’t been a number of annoying issues, like dropped calls and delayed transmission problems. (There’s nothing more unnerving than to make a small joke and then have to wait 4 seconds to see if it went over.)

More and more companies say they are using Skype to interview potential employees; some even use it as a first screening by HR before narrowing down candidates. It seems like there would be some potential there for discrimination, but I guess it would be the same as an in-person interview if a company were so inclined to operate that way.

But if you are interviewing by video, be sure to remove all environmental distractions. Put the dogs out, remove the whiskey bottles from the area you’re sitting, and change out of those Spider-Man pajamas.

In the last couple of weeks, two TechRepublic articles explored the work rules that affect technical, or computer, workers (A 40-hour week? Not in IT and Why programmers are not subject to protective labor laws). This is a quick and, I hope, helpful explanation of the laws covering this issue.

First, understand that there are federal laws and state laws.  The federal law, called the Fair Labor Standards Act (FLSA), governs which employees must be paid overtime for hours worked over forty.  There are many exceptions to the law, one of which can be applied to what the FLSA calls “computer professionals.”

There are also state laws that can override the federal law if they are more favorable to the employee.  For example, some states do not recognize the legitimacy of the computer professional exception, or “exemption” as it is called in FLSA parlance.  If you work - the controlling law is that of the state in which you perform your duties, not where you live - in such a state, being classified as an exempt computer professional is not allowed.

Salary is well defined for computer professionals.  Hourly exempt computer professionals are entitled to their hourly rate for every hour they work.  If an employee is making less than $27.63 per hour (more in California), he or she cannot be an hourly exempt computer professional.  Computer employees may also be classified as salaried exempt.  This is much less common, but the minimum salary for exempt salaried employees is $455.00 per week (again, more in California). Salaried exempt employees must receive their salary each week, without reductions for hours worked under forty (with a few exceptions), but they need not be paid overtime.

Important points:  Exemption is at the discretion of the employer. These rules are about the minimum required; there is nothing that prevents an employer from paying more than the minimum.

What is the definition of an exempt computer professional?  The federal law requires that the employee be performing, as a primary duty (the most important part of the job, usually but not always consuming at least 50% of the employee’s time), one of the following:

(1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;

(2) The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;

(3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or

(4) A combination of the aforementioned duties, the performance of which requires the same level of skills.

An exempt computer professional does not include “. . . employees in computer occupations . . . engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g. engineers, drafters and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations . . .”

As you can see, there is a lot of grey area between the absolutely exempt and the absolutely not exempt.  However, the Department of Labor has been fairly strict in its interpretations of the regulations.  They have declared, for example, that the usual activities of system administrators do not meet the regulatory requirements.  Help desk personnel, too, are not eligible for exempt status.  If you perform either of those two jobs as your primary duty, you should be receiving time and a half for overtime.

You may have seen references in the past three or four years to lawsuits against large technology companies for violation of the FLSA.  Many of these were as a result of misclassifying computer employees as exempt when they did not meet the regulatory definition.  Certainly, the rapid change rate in the computer field has made keeping up with jobs and their responsibilities a challenge.  Nonetheless, that is the duty of the employer - to know the duties of their employees and to classify them accordingly.  Job titles are irrelevant - what an employee does is what matters.  Even an employee’s professional credentials and academic record do not make a computer professional.  The focus must be on what the person does in the workweek.  If those responsibilities change, exempt status may need to be reconsidered.  One common example of this is the transition from programmer or other hands-on computer job to technical project manager.  This switch may well result in the employee being converted from an exempt computer professional entitled to his/her hourly rate for every hour worked to a salaried exempt employee, eligible for no overtime pay.

The FLSA is a complicated law, particularly in the area of computer professionals.  The courts have issued contradictory rulings, and the Department of Labor, having just changed the FLSA in 2004, is unlikely to undertake further amendments for some time.

Helpful information can be obtained at the Department of Labor website, www.dol.gov.  Make your way to the Employment Standards Administration and Wage & Hour Division pages.  The Department of Labor has multiple Fact Sheets on exemptions that can be downloaded.

Of necessity, this blog gives quite basic information about a complex topic.  It addresses the federal law with only a brief mention about how state law might change a situation.  Nonetheless, I hope that this has answered some of the more common questions readers have had about why their pay varies from the more standard time and a half overtime paycheck.

According to Charlotte Huff , writing for workforce.com, with $19 billion dollars earmarked for computerizing the United States’ medical records, an IT hiring surge is just around the corner. Experts say such hiring should begin in earnest by early 2010. And since the federal stimulus bill includes financial penalties for facilities that do not comply beginning in 2015, the hiring of IT pros who can install and troubleshoot systems should be fast and furious.

And if you consider that, at present, just 9 percent of hospitals use electronic records on even a limited basis, there’s a lot of work to be done.

Of course, many leaders aren’t acting until they see what happens with health care reform and the passage of key health IT regulations. But then it appears that it will be full-steam ahead.

What tech groups will be in the most demand? As I said, those who can install systems and those who can troubleshoot those systems will be in demand. Also, security architects will be in demand what with the privacy concerns inherent with storing and sharing personal medical data. Some experts are also saying that cloud computing specialists will be needed in order to store huge amounts of data over the Internet rather than on individual servers.

I read an article by Career Advancement Expert Linda Lopeke in which she said that one of the worst career killing mistakes is to not take action. As she put it:

Taking action is the one thing that renders all on-the-job competition irrelevant. It requires no special tools or intelligence. And 98% of your co-workers will NOT be doing it. In any organization there are always a bazillion things that need to be done. However, 10% of the employee population will make professional commitments to getting thing one with enthusiasm. And only 2% ever actually take action. Management has to constantly chase and follow up with the other 98% if they want to make sure things are getting done. So what this means is if you work in a department of 100 people, only 10 people will have high potential and only 2 people will be in direct competition for raises and promotions. So, if you’re not taking action you are automatically keeping yourself from getting ahead.

I couldn’t agree more. And here is my two cents worth:

Taking action does not mean saying you’ll do something and then not getting around to it for weeks. Some people think that if they display a gung-ho attitude in a meeting and volunteer for a task then they have scored points for their career, but it is a delusion to think that the actual follow-through doesn’t matter.

If your manager has to constantly follow up with you to make sure things are getting done, then you’re not being helpful. You have actually doubled his or her work. And don’t think it’s not noticed. It may not go in your performance appraisal because managers are sometimes reluctant to make formal notes about volunteered tasks, but he or she will make subconscious notes about your dependability. And the high-profile tasks will go to your co-worker who is known for closing the deal.

If you’re the employee who cheerfully agrees to help co-workers out but you actually never get around to finishing the task at hand, what good is that? Believe me when I say that you are not going to be known as the co-worker who always helps out; you’re going to be known as the co-worker who always volunteers to help out but never actually does it.

Maybe your schedule is too tight, time is too short, blah blah blah. This might be true once, but if it keeps happening, then you have a problem with time management. If you are consistently signing on for new projects and then dropping the ball, then you are not realistically perceiving your schedule and capabilities. Stop trying to reap the immediate benefits of seeming to be the helpful person if you can’t do the required work.

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This is a guest post from TechRepublic Programming and Development blogger Justin James.

Some developers I know never take work home. This is not an issue for me anymore because, for about the last two years, I have been blessed (or cursed) to work 100% from home. However, when I worked in an office, I preferred to take work home rather than be at the office late. I would rather stay up working than miss dinner with my family and my son’s bedtime routine.

Take this poll and let us know whether you ever take work home. If you answer “No,” please post in the discussion whether it’s because your employer doesn’t allow you to work more than 40 hours per week.

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J.Ja

Joe Takash, a behavior strategist and author of the newly released Results Through Relationships: Building Trust, Performance, and Profit Through People, serves up five best practices for “managing up.” They are:

1. Choose Good Timing – Discover the best times in which to approach your boss by asking, “When are the best times to meet with you if I have questions?” This simple inquiry can build credibility because of the awareness and consideration of their busy schedule. An added benefit is that, when you meet with them, you’re likely to have a more focused, less distracted listener.
2. Prepare and Plan – Practice your approach vs. just winging it so you can succinctly explain up front why you’re there and what you need from them. WARNING: Be solution-focused! Bosses want to know what you have thought of or would suggest about the inquiries you have. This is a crucial component for demonstrating leadership and initiative.
3. Align Understanding – If your boss does not state his or her expectations or ask about yours, don’t waste energy griping to others about it. Instead, rise above and ask them to be clear about what they need from you. Requesting the primary duties you should be focusing on or discovering the qualities that make up the ideal professional in your position not only impresses them, but it also provides you with a roadmap for success.
4. Follow-up/Follow-through – One of the biggest barriers for positive change is lack of accountability. In managing upward, you can hold yourself and your boss accountable by agreeing on times/dates to follow-up at the conclusion of each meeting or communication exchange. Your boss may think, “These behaviors would be great in a client services or sales position,” which may be a promotion you earn twice as fast as you may have.
5. Own Your Results – A young lady named Karen once approached me after a keynote presentation I delivered to her company. With a pleasant, apprehensive smile, she said: “Joe, I really believe I’m equipped to be our marketing manager. I have experience, passion and knowledge, but I don’t know what to say to my boss. I was wondering if you have advice.” I said, “Karen, I have for you a magic formula and it can be described with one word: ASK!” I politely explained to her that the biggest success stopper is that cynical voice within each of us. Owning your results doesn’t mean you won’t experience fear as you navigate your career, it’s the commitment to courageously ask for what you want and be prepared to state why and how all will benefit.

Results Through Relationships can be purchased at www.amazon.com and www.barnesandnoble.com and ordered through any major bookseller.

It’s imperative that you do your research on a company before you interview with them. Not only does being well-versed in a company’s mission and history help you tremendously when it’s time to ask the interviewer some questions, but it will also help you decide whether it’s a place you even want to work.

Many times your IT skills will transfer to a completely different industry than what you’ve been working in. Research is also a good way to get acquainted with an industry you’re not familiar with so you’ll be prepared to talk about how your skills could transfer.

There are several ways to do this research. You can google the company name or, if the company is big enough, it probably has its own Web site.

Here are some other resources you can use to research a company:

• Business Wire
• WetFeet.com
• Hoover’s Online
• Annual Reports Library
• Forbes Lists of Best Companies
• Thomas Register
• Wright Research Center
• EarningsWhispers.com

What kinds of things do you want to know?

Here’s the kind of information you want to look for:

• How old is the company?
• How large is the company?
• What are its products or services?
• Who are its customers?
• Who are its major competitors?
• What is its reputation / industry standing?
• Where is the company’s headquarters?
• Look at the company’s About Us page and see how many women and minorities they have in key roles.
• What are its short- and long-term goals?
• How has the company resolved problems?
• Have there been recent employee layoffs?
• What are the backgrounds of the managers?
• What training programs are offered?

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