Race to Nowhere

As I do typically every morning I watch a portion of the Today show before getting on the computer. This morning they had a segment with the documentary producer who create a film that is making a stir across this country. The premise behind the film entitled Race to Nowhere" is that we are loading our youth with so much pressure to get into this college or that college that they can never achieve the goal. They discussed a 13 year old girl who failed to get an A on a math test and was so stressed out over it that she committed suicide.

I took a moment to carry this out a little further and asked myself if we are doing this to our kids, then they must have gotten this "drive" from somewhere and the natural thought is that it is coming from peers, teachers and parents. If in fact it in part comes from their parents and teachers, then does this race carry over to the workplace?

We all are cognizant of the fact that we function in an ever increasingly competitive global workplace. I realize it is a fact of life. But in an effort to be better than everyone else, do we equally place this urge to race to nowhere on our employees? Do we as managers walk the walk,and talk the talk that every employee must reach this lofty goal which maybe unattainable?

While our organizations need to remain competitive, it is equally true that we as business owners and human resource professionals must recognize that not every employee is capable or wants to be in the "Harvard" of the business world. Some can make equally important contributions to the health of the organization without being in the ivory tower of the organization. The employee could be the one on the floor who sees that we are doing something that is not totally beneficial to the organization and alerts management to a better way of doing things. The employee could be the one who in exposure to our customers enhances the relationship by going the extra mile to solve a problem. The employee could be the one who by being active in the local community extends the brand name of the organization by showing that the organization cares about the community in which they thrive.

 Competitiveness for the sake of competitiveness may look good on paper but it is not necessarily good for the health of the organization or its greatest asset - your employees

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On the road to perfection have we lost our way?

Return for a minute with me to the late 60's. I know if you remember the period you were supposedly not part of the time period.But it was a time when the way we taught our next generation was different then today. I cam out of college in this era and taught for six years. I still correspond with one of my first students, 41 years later. In a recent chat session she made the comment that I was one of the first teachers who made her think about the reasons behind what we do and why.

Russ Moen of Express Personnel makes the argument that when the nature of the business world changed from one based on what we made to what we imagine, the nature of the employee changed from one of being an expense item to being a non-owned corporate asset the central part to success in business was dependent on collaboration and innovation.

I look at the push behind such things as NCLB and realize that today's educators while for the most part do a good job, they fail to teach the skills to enable our next generation of workers to be critical thinkers in the workplace. You can't instill innovation in an individual when you are "teaching" them to prepare for the state accountability exam. Instead we are teaching them to stay within very small parallel views. Where would we end up with a HP or an Apple or even Ford Motor if we told them that they can't operate from the garage as they developed their concept because it did not meet the testing criteria.

I was a bear of a teacher and I readily admit it. I took every opportunity to challenge my students to reach for that next higher level in what they did. We need to do the same with today's workers who come into the workplace by being unable to think beyond what is in front of them. We have not prepared our workplace to view the world from both a macro perspective and at the same time a micro perspective. When was the last time you had an employee come to you and suggest that there maybe a better way to complete a process? In many cases the reason is that they were never taught to think for themselves.

Dr. Richard Florida talks in his books about the role of the Creative Class in the workplace. He suggests that this country's standing in the world is going to be diminished because those who dream instead of producing end results believe they can find a greener pasture elsewhere. It is time we understand the new paradigm and change our educational system to meet the needs of your workplace not whether they performed well on some standardized test dictated by an accountability fanatic sitting in some office away from the workplace/classroom.

Innovation is the way to our recovery. Innovation is the way to the future of the workplace. Innovation is the way to produce contributing members of society. If we don't recognize how to challenge the assumptions made by organizations how do we expect to be innovators in the years to come. I would expect that the next generation will not be as productive as past ones due to the inability to look at problems with a critical mind.

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Are walking the walk and talking the talk?

A recent new article about the congressional gridlock gave me a moment to pause to reflect on what goes on in our corporate environments. Every year since September 11 we have held memorial events to honor those who lost their lives in the twin towers. On the face of it we are honoring not only the victims but the many first responders who came to the rescue of those at three sites. Last week the Congressional leaders defeated legislation  which would have covered some of the cost of the health care for those who went into the disaster sites. Are we honoring those who have passed away but not those who lived but were exposed to the debris?

Let's take a look at the corporate environment and see how many times we see a similar scenario happening. A friend of mine has recently taken a job with a company that is noted for its customer service. Management tells their employees that they believe in an open door policy but employees are labeled as a malcontent if they take a problem to the management. What is the affect when you ask your employees to become engaged with your organization, but then through your actions treat them as second class citizens. How do you respond to the employee, who you continual provide feedback telling them how valuable tot he organization they are, but you expect them to put in 70-80 hour weeks because that is the way we do things around here?

Does your actions match your message to not only your employees but your customers?

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IRS releases 2011 Mileage rates

IR-2010-119, Dec. 3, 2010

WASHINGTON — The Internal Revenue Service today issued the 2011 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes.
Beginning on Jan. 1, 2011, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:

• 51 cents per mile for business miles driven
• 19 cents per mile driven for medical or moving purposes
• 14 cents per mile driven in service of charitable organizations

The standard mileage rate for business is based on an annual study of the fixed and variable costs of operating an automobile. The rate for medical and moving purposes is based on the variable costs as determined by the same study. Independent contractor Runzheimer International conducted the study.

A taxpayer may not use the business standard mileage rate for a vehicle after using any depreciation method under the Modified Accelerated Cost Recovery System (MACRS) or after claiming a Section 179 deduction for that vehicle. In addition, the business standard mileage rate cannot be used for any vehicle used for hire or for more than four vehicles used simultaneously.

Taxpayers always have the option of calculating the actual costs of using their vehicle rather than using the standard mileage rates.

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Are we ready for the changed dynamics?

The Wharton School has published an article regarding the affects of the "silver Tsunami" as older workers change their views about retiring. The article can be found at http://knowledge.wharton.upenn.edu/article.cfm?articleid=2644

 

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Have we missed the directions?

One of the business magazines I read religiously from cover to cover each month is the latest edition of Fast Company Magazine. Several years ago in doing so I read an article by Dr. Richard Florida and got hooked on his concepts. His latest book, the Great Reset is no exception.

Then I picked up the St Petersburg Times this morning and the front page contains a larger article across the middle of the page entitled " New Reality in The US: Forever jobless." This lead me to contemplate whether we have missed the direction in which we are headed.

The nature of the workforce has changed but many of our politicians are still walking around with rose colored glasses. Many of our human resource professionals are in the same boat.So how do we need to change direction to resolve the unemployment quagmire we are in?

First, we need to come to the realization that we are no longer in a workplace that is governed by what we make. It is ruled, whether you accept it or not, by what we dream. This means that our way of viewing available talent. There was a reason why the founders of HP and Apple began in their garages.They did so because traditional business did not recognize the value of their ideas.

Second, the current trend to negate the inclusion of candidates who are unemployed means that you may be eliminating the very person who has the concept in his or her head that will catapult your organization to the next level.

Third, Charles Handy in his book "The Age of Paradox" suggested that we would end unemployment by everyone being self-employed. If that is true we need to be concerned where the knowledge bank of our organizations is going reside. Your organization depends on developing that knowledge base and having it available as needed.

While jobs are important and we would not dispute that we need to get as many people back to work as possible, we would also contend that the effort to concentrate on passive candidates is not helping the unemployment issue nor your organization.

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Cooley Godward and Kronish post mimum compensation rates for 2011

Ther law firm of Cooley, Godward and Kronish posted on their legal blog the minimum compensation rates for the coming year:

2011 Minimum Compensation Rates

New Year Brings Few Changes in Minimum Compensation Rates

Employers should review compensation rates for both exempt and nonexempt employees to ensure compliance with current legal thresholds. Set forth below are rates at the federal level, and for some states and localities, that apply to the most common job categories.

The following minimum compensation rates are effective as of January 1, 2011:
JURISDICTION	EXEMPTION	MINIMUM COMPENSATION
FEDERAL	Nonexempt	$7.25/hour
	Executive	$455/week1 on salary basis
	Professional or Administrative	$455/week on salary or fee basis
	Computer	$27.63/hour (no change from 2010)
	Highly Compensated	$100,000 total compensation (including minimum $455 minimum weekly salary or fee)
	Licensed practicing medical doctor or attorney; teacher	None
	Business Owner (20% minimum equity and engaged in management)	None
	Outside sales	None
In the following jurisdictions, higher rates prevail as shown. Not all states are reflected.
CALIFORNIA	Nonexempt	$8.00/hour $9.79/hour (San Francisco) (increase from 2010)
	Executive, professional or administrative	$2,773.33/month on salary basis
	Computer	$37.94/hour, $6,587.50/month or $79,050/year
	Licensed Physician	$69.13/hour
COLORADO	Nonexempt	$7.36/hour (still proposed; not final) (increase from 2010)
MASSACHUSETTS	Nonexempt	$8.00/hour
NEW YORK	Nonexempt	$7.25/hour
WASHINGTON, DC	Nonexempt	$8.25/hour
WASHINGTON STATE	Nonexempt	$8.67/hour (increase from 2010)
	Outside Sales Exemption	guaranteed salary, commission, or fee

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HRCI approves Ultimate Improvement Cycle: A Six Sigma Approach to Human Capital Management CE Credits for 2011

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The Ultimate Improvement Cycle: A Six Sigma Approach to Human Capital Management 

Welcome to the First Day of the Rest of Your Career

Gain Access to the Partnership Table through the Language of Business

Are you functioning as more than an administrative vehicle?  Unfortunately, for many of you the answer is no!  The corporate world is changing with a blink of an eye. You can either be part of that change or remain in the HR silo which is looked upon as an impediment to the progress of most organizations.

Fortunately, there is a better way.  Our 14-hour workshop, The Ultimate Improvement Cycle: A Six Sigma Approach to Human Capital Management, will help you identify those strategies to enable you to become part of the change effort within your organization.

The Ultimate Improvement Cycle is your direct route to:

► Understanding the language of business                         

► Identifying sources of non-value added

    activities within your HR process

► Identifying techniques for eliminating 

    non-value added activities

► Increasing your bottom line

► Ensuring that your processes are

    repeatable each and every time

► Choosing appropriate tools to solve

     problems

► Real Life examples of the six sigma

     methodology in action

The workshop materials include a take away workbook and a 30 day free trial to QI Macros, an Excel based cross platform program which contains the six sigma tool box.

Sponsored by the Daniel Bloom & Associates, Inc and the

HCC Center for Continuing Education

Registration Fee: $499.00

                                                     

Session 1: February 21 and 23, 2011          HCC Collaborative Studio 8:30 to 4:00

Session 2: March 21 and 23, 2011  HCC Davis Island                    8:30 to 4:00

 

HRCI has awarded the course 13 strategic continuing Education Credits. Space is limited to 25 participants.

To register for the workshop visit:

http://www.tampatraining.com/training-courses/course-details.cfm?ID=1123

WORKSHOP LEADER:

Daniel T. Bloom SPHR, SSBB, SCRP is a human resource professional with over 30 years’ experience within the industry and the CEO of Daniel Bloom & Associates, Inc. He has assisted both small and Fortune 100 corporations with their human capital issues. He is one of the few HR professionals in the country to be jointly certified as a Senior Professional in Human Resources and as a Six Sigma Black Belt.

For More information Contact:

Daniel Bloom at dan@dbaiconsulting.com or Bill Melendez at 813-259-6508

 Can’t make it to Tampa – Contact us about bringing the course to your location.

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What do You Believe?

On this day that we celebrate the arrival of the Pilgrims to our shores eons ago, it is worthy of our time to stop and look at what is good in our lives. Despite the trails and tribulations that we have all gone through in these hard economic times, there is still plenty to be thankful for -- family, friends and the fact that we are still here. Take the time today to let those who are around you and who you care for, that we are thankful for their presence.

This is the start of the holiday season and Daniel Bloom & Associates, Inc. wishes you the very best holiday season as we ring out 2010. May 2011 see an increase in those things we are thankful for.

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What are we telling our employees?

I was driving down the road on my way to drop off a donation to our local domestic violence shelter when I passed a sign on a medical clinic. The sign in very bold letters stated walkins welcome for express psychiatric care. As i continued on my way I began to think about what that kind of message would send to our human capital assets. We continually hear references to the fact that in order to achieve anything we need to avoid HR. This is true of recruiters as well as hiring managers.

So lets consider this in more detail. Is HR an asset to the organization, or are we providing the employee base with express HR care? Is the name of the game to see how fast we can solve an employee's issues and move on to the next one? Or is our goal to learn what the employee really wants and if so do we take the time to obtain the whole story?

HR professionals contunually lament that they are not part of the decision process, but when we consider our function as a silo within the organization and forget that we play a critical role in the success of the efforts of our business, we act like the express psychiatric care.

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Who am I? The role of human capital in a global workplace

I recently was approached by a professor at one of the local universities with an invitation to come speak to her leadership classes. She asked me to demonstrate for mostly financial background MBA students what the soft side of human resources, i.e., management,

As I began to prepare my presentation for the classes I chose to follow the human capital resources through each of the ages we have traversed since the 1770's. When we were primarily on the farm, we learned how to work in cross functional collaborative teams. It was part of the fabric of our lives that we looked to help the individual be successful in owning and operating the farm. It was a period when we saw the rise of the "Quaker Business Model" which believed that the role of the organization was to do what ever was necessary to see that the best came out in every individual. Diane Cadbury in her book The Chocolate Wars talked about how her family helped out the employees by encouraging them to continue their education, provided the first health insurance plans and other similar efforts to enhance the life they lived.

When we moved to the industrial age, the individual changed their relationship with the organization reverting to a mere number. The key was that they could now support their family by working within a big city. This philosophy has now extended to the way many organizations look at employees today. The economy tanks and instead of trying to see how to reinvent the processes we utilize, the strategy is to see how many human capital resources we can cut to bring costs inline with a subjective target. Never mind that those human capital resources represent the knowledge base of the organization. Never mind that few organizations take into consideration that cutting staff does not reduce the workload, in fact it escalates the load on the remaining staff.

By the beginning of the 21st century we have changed our paths so that the benefit from the organization is what we dream not what we produce or make. This change in focus also changes the role that human capital resources play within our organizations. One of the problems we see is that every day there is another story about organizations that are trying to enforce non-competition clauses on departing human capital resources. The difficulty is that our human capital are not number any longer, They are corporate assets that are free to wander as they choose. we in essence lease their services with the understanding that if we do not meet their needs they are gone to somewhere that will respect their value to our organizations.

This new paradigm calls for new strategies to utilize the human capital resources. This means we have to gain a better understanding of the importance of the role they play in the future of your workplace. These strategies can be divided into categories of expectations:

• The human capital must be engaged in their work environment on the basis that they want.
• The workplace must be designed around a system that provides the routes for the employee to enhance their learning of skills that will improve they way they deliver what is in their minds.
• What ever processes we put in place must have as its goal the manifestation that the efforts put forth by the human capital resources are appreciated by the organization, not just taken for granted.
• The organization needs to ensure that any conditions that lead to a hostile workplace are eliminated. This means free from harassment on the part of management, fellow employees and outside vendors.
• The organization needs to ensure that an employee can come to work and feel that will not be exposed to actions by others that can be classified as violent in nature. It also includes the organizational efforts to ensure that no one brings illicit drugs into the workplace.
• The human capital assets expect that they will be respected for who they are and what they contribute to the organization not having their growth stymied because of biases on the part of the organization as to what they can achieve.
• Finally it is absolutely that the top management efforts represent total buy in to the new paradigm, not just giving it lip service.

As a human resource professional within your organization, it is your task to see that the organization moves toward this new direction. Human capital resources are vital to the successes of our businesses. You make the decision as to whether your organization maintains the status quo or heads in the direction of the new paradigm.

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Enhancements to I-9 verifications

J.J. Keller in their HRClicks Newsletter reports that the I-9 program's capabilities expanded to include U.S. passport photo matching — enabling E-Verify to automatically check the validity and authenticity of all U.S. passports and passport cards presented for employment verification checks, as announced by the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS).

The identity of new employees who present a U.S. passport or passport card to E-Verify employers can now be verified by comparing the data to state department records. Approximately 10 percent of all E-Verify queries currently provide a U.S. passport to establish both identity and employment authorization in order to prove employment eligibility.

E-Verify has provided photo matching capabilities to employers throughout the nation to verify the identity of new employees when they presented employment authorization documents or permanent resident cards as proof of identity and work authorization for the Form I-9, Employment Eligibility Verification, since 2007.

DHS, in partnership with the Social Security Administration, operates the E-Verify web-based system which is now used by more than 230,000 employers at more than 800,000 worksites.

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Ford & Harrison issues Legal Alert regarding Health Care Grandfathered Plans

Legal Alert: Changes to Grandfathered Plan Rules Announced
 
11/16/2010
Daniel Sulton

 

 

The triple threat of federal agencies (Department of Labor, Department of Treasury, and Department of Health and Human Services) first published guidance in the form of interim final regulations on "grandfathered" health plans under the health care reform law (the "Affordable Care Act") on June 17, 2010. Since then the agencies have issued Frequently Asked Questions on September 20, 2010, October 8, 2010, October 12, 2010 and October 28, 2010, each containing responses to questions regarding the implementation of the Affordable Care Act, including clarifications on rules related to grandfathered plans. On November 15, 2010, the agencies released an amendment to the interim final regulations providing some relief to fully insured group health plans.

Amendment

In response to comments received on the interim final regulations, the agencies determined that an amendment is necessary to the grandfathered plan rules. Under the interim final regulations, a fully insured group health plan would lose its grandfathered status if it changed issuers or policies after March 23, 2010 regardless of whether or not the benefits or terms under the policy had actually changed in any significant way. The amendment to the interim final regulations removes this restriction and allows a group health plan or employer to enter into a new policy, certificate or contract of insurance without the plan losing its grandfathered status if certain conditions are met. This amendment, like the interim final regulations, applies separately to each benefit package under the health plan. However, it does not apply to individual policies.

In order for a fully insured group health plan to maintain its grandfathered status after a change in insurer or policy, the plan must not make any other changes that would result in a loss of grandfathered status under the interim final regulations (e.g. any increase in a percentage cost-sharing requirement such as coinsurance, etc. Please see our Legal Alert, Anticipated Health Care Reform Grandfathered Plan Regulations Released," dated June 23, 2010, available on our web site at http://www.fordharrison.com/shownews.aspx?Show=6300, for a complete list of changes that will result in a loss of grandfathered status.) Additionally, the group health plan must provide any new insurance company with documentation of the prior health plan coverage sufficient to determine if any change in the new policy, certificate or contract of insurance is being made that would result in a loss of grandfathered status.

Effective Date

The amendment applies to group health insurance changes which become effective on or after November 15, 2010. Therefore, any change of insurer or policy that became effective prior to November 15, 2010 will not be subject to the amendment and would result in a loss of grandfathered status.

Employers' Bottom Line

This amendment is a welcome change for employers with a fully insured group health plan or with any fully insured benefit options under its health plan. It allows flexibility to change insurance carriers or insurance policies without the loss of grandfathered status as long as such changes do not result in one of the six prohibited changes under the interim final regulations for grandfathered health plans. Employers with fully insured plans who avoided making certain insurance policy changes (other than the 6 prohibited changes for grandfathered plans) that would reduce cost but result in a new policy being issued, may want to revisit those decisions in light of this amendment. Unfortunately, this amendment may have come too late, as a practical matter, for calendar year plans to make any changes for the 2011 plan year.

If you have any questions regarding this Alert, please contact the author, Daniel Sulton, dsulton@fordharrison.com, any member of Ford & Harrison's Employee Benefits Practice Group, or the Ford & Harrison attorney with whom you usually work. You may also visit the health care reform section of the Ford & Harrison website, http://www.fordharrison.com/HealthcareReform.aspx, for more helpful resource§s and tools on health care reform.

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New Twist in Social Media

Many of the pundits of Social Media in the workplace have had differing views on what has to be in a social media policy. They have also questioned the ownership of the relationships developed on the social media venue. In a case out of Connecticut, an employee placed disparing comments about her boss and the company on Facebook, The organization in turn fired her. The National Labor Relations Board has entered into the fray and stated that she was dismissed illegally because what she said was covered by the right to free speech.

What does your social media policy say in this regard? Are you ensuring that both sides of the equation's rights are being protected? NLRB says that what she said was no different than talking around the water cooler. Is that not what social media is all about?

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Do we really know what the answer is?

I was driving around doing errands over the weekend, when suddenly in front of me was a car with a bumper sticker that resonanted with the current economic environment and workplace environment we live in. The bumper sticker was in this case black and white but the statement was short and to the point.

It stated " Don't Believe What You Think."

Reading the bumper sticker made me take a moment and consider question as to how often do we in human resources (or the business environment for that matter) find ourselves facing a problem and because we think we know the answer, we jump to a solution. Do we provide a correct solution in these cases?

The six sigma methodology teaches us to ask the "5 Whys" when confronted with a problem. The premise is that the first answer we receive when we question what we think is usually not the real answer we are looking for. To get to the root cause of the problem takes questioning it five times. So if this is true, when we belive what we think is the solution to a problem are we solving the problem correctly?

If you like we would be open to examples on both sides of the question.

 

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Relocation Announcement

Alvarion is moving its north American headquarters from the Silicon Valley to Montgomery County, MD by 2013.

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Cut Hours or Reduce Staff - Is that all there is?

In his daily post for TLNT, Larry Haun suggested that the question before many organizations in time of economic hardship is whether you cut hours or reduce staff? Larry Haun, who is the community director for ERE.net makes some very good points. The difficulty here is that the response is based on an employee being just another number on the expense sheet.

We would suggest that if you take an alternative view of the role of the employee to be that of a non-owned capital asset that is one of the reasons you are still functioning as an organization then there is a third alternative. If we take a page from GE and change the view of the HR process to be one of continuous process improvement we can offer a third alternative. By removing the process steps that are non-value added (they are not requested by our customers) and ensuring that our processes are repeatable every time we conduct them, then the alternative is we can raise revenues by removing the non-value added steps.

James Womack in his book Lean Thinking suggests that unless the organization is close to bankruptcy, then lean or lean six sigma efforts should not call for layoffs. They should actually enhance the worklevels of the employees due to the opening of opportunity in other departments and through the introduction of new products and services.

Are you stuck in the silo of employees as an expense or have you realized they are a valuable asset and maximizing your human capital?

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HRCI approves Ultimate Improvement Cycle: A Six Sigma Approach to Human Capital Management CE Credits

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In conjunction with Daniel Bloom & Associates, Inc.. the Corporate Training Centers at Hillsborough Community College will be offering the first of its kind in the United States a 14-hour training program for HR professionals on how to apply the six-sigma methodology to your hr processes. The course will contain both technical and real life experiences with the various tools and how they apply to HR.

HRCI has approved this course for 13 strategic business recertification hours.

The course is scheduled to be presented November 18 and 23 and again March 21 and 23. The instructor will be Daniel Bloom SPHR, SSBB the CEO of Daniel Bloom & Associates, Inc and one of the few individuals in the country to be certified as a Senior Professional in Human Resources and a Six Sigma Black Belt.

For more information contact Bill Melendez at HCC at 813-259-6508

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Is the glass half empty or half full?

Every generation has been confronted with this question and with the question which came first the chicken or the egg. If we listen to the political pundits going into tomorrow's elections we can see the same picture developing. 

The tea party candidates are telling us how really bad things are. How all the strategies created to combat one of the worse recessions in this country were all bad. But is that really true? Consider the headlines out of the paper recently.

• The TARP funds were the sign that our priorities were out of place. And yet a local CPA appeared on the local FOX news station and pointed out that many of the banks that have already paid back their loans have done so with a premium coming back. AIG announced today that it already has 37 billion dollars ready to come back to the US Treasury.
• Manufacturing output exceeded the projections of most economists for the last reporting month.
• Many of the corporations that have laid off employees are beginning to recall them back including GM and Delta Airlines.
• Corporations are in the process of returning some customer service positions back to the US because economically it made more sense.This includes Radio Shack, AT&T and others. I was in attendance at a conference recently where the  speaker indicated that he was working with an India based Information Systems firm which was opening a call center in Wisconsin because it was cheaper to run it here.

How does this apply to human capital? I hear the same kind of rhetoric coming from the business community. Have you ever practiced the philosophy that there is no sense in training our employees because they would just leave? Have you ever told your hiring resources not to provide you with the names of candidates because they are in transition due to circumstances that are beyond their control? Have your ever expressed the belief that if a candidate was let go and did not find employment quickly they are worthless?

We as human capital managers have the ability to look at the glass as being half full or half empty. Look at the available talent for who they are not what you envision them to be. You maybe surprised based on the changed attitude. Many of the in transition executives have taken this time to increase their levels of education but you are excluding this because you believe the glass is half empty.

So as you enter the voting booth tomorrow (we hope you all will one way or another) and as you go forward in your managerial efforts consider whether the glass is really as empty as you think it is. Pundits have been wrong in the past. Be sure you are not a victim to the wrong attitude.

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USERRA Rights might start earlier then you expected

From Wolters Kluwer Employment Blog

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Army reserve member’s USERRA claims against Wyeth partially reinstated

Finding an army reserve member raised sufficient evidence that his performance improvement plan was improperly extended due to his military leave, the First Circuit reversed in part a district court’s dismissal of his USERRA claims against his employer, Wyeth Pharmaceuticals (Vega-Colon v Wyeth Pharm, 1stCir, October 28, 2010, Thompson, OR). The direct court properly granted summary judgment to the pharmaceutical company on the reserve member’s numerous other USERRA discrimination and retaliation claims, however, the appeals court ruled.

Background. The reserve member, a package equipment supervisor who worked for Wyeth in Puerto Rico, alternated between active and inactive status during his employment with the company. The first assertedly actionable incident was a poor performance evaluation, allegedly his first. Shortly thereafter, he was denied a reliability engineer position that he applied for, and he filed a discrimination complaint with the DOL’s Veterans' Employment and Training Service (VETS). VETS initially found no merit to his claim and denied the complaint, but it was later reinstated when the employee presented additional evidence. At any rate, the employee eventually voluntarily withdrew his VETS complaint.

After his negative performance evaluation, the employee had requested that Wyeth conduct a formal investigation. At a meeting to discuss the investigation, the employer alleged that the employee made a threatening comment, suggesting to the facility’s site director that he “made it easy for one to understand why massacres like the one at Virginia Tech take place.” After this comment — which the employee denied — his access to the plant was restricted, although he continued to receive his salary and benefits. At some point, he returned from military leave with his access to the plant restored. Next, he was placed on a performance improvement plan (PIP) pursuant to a Wyeth policy in which all employees who receive low performance evaluations are placed on a PIP. He timely completed the objectives established under the PIP within the required 90 days, yet he was informed nonetheless that the PIP would be extended for other reasons until he returned from military service. His reserve unit was mobilized that month.

The employee filed suit, alleging several claims of discrimination and retaliation based on his military service under USERRA and Puerto Rico law. He claimed the discriminatory and retaliatory actions taken by Wyeth were the result of his decision to return to active duty. The district court granted summary judgment in favor of Wyeth on all claims, and the employee appealed.

USERRA coverage. Wyeth argued that because he did not return to active duty until February 2007, the employee was not protected under USERRA until this date. However, the appeals court held the employee “applied to perform” active duty service, for purposes of USERRA, once he informed his supervisors. “While informing a supervisor of one's intent to return to service is not strictly speaking an application for service; it is only logical that USERRA coverage would be triggered at the point in time in which an employer has information about an employee on which it could base discriminatory treatment,” the appeals court wrote. “To deny an employee who has expressed such a definite intention the protection of USERRA until his literal application for service is signed and delivered would be contrary to the stated purposes of USERRA. This conclusion is further supported by the principle that USERRA should be broadly construed in favor of military service members as its purpose is to protect such members.”

Because his April 2006 application for the reliability engineer position was the earliest action related to his claims, any alleged improper conduct by Wyeth necessarily took place after USERRA was triggered, the court reasoned.

Posted via email from hrstrategist@Net-Speed