EEOC SUES EMPLOYER OVER POSITIVE DRUG TEST FOR PRESCRIPTION OPIOID PAINKILLER

            In recent years, the abuse of prescription opioid pain medication has become a widely reported national epidemic. The New England Journal of Medicine reports millions of Americans are addicted to prescription pain medications, and The Centers for Disease Control and Prevention finds that more people died from drug overdoses in 2014 than in any year on record, with the majority of deaths from opioids, and 78  Americans die every day from an opioid overdose.  Prescription opioid abuse also has been linked to the national increase in heroin addiction.  Commonly prescribed opioid painkillers include Hydrocodone (Vicodin), Oxycodone(OxyContin, Percocet), morphine (Kadian, Avinza) or medications containing Codeine.

            However, a recent lawsuit by the Equal Employment Opportunity Commission (“EEOC”) against a Sioux Falls, South Dakota Casino reveals the tension between an employer’s concern about prescription drug abuse in the workplace and complying with the Americans with Disabilities Act (“ADA”).

            According to the facts given in the lawsuit, Kim Mullaney applied for a position with Happy Jack’s Casino.  The EEOC’s lawsuit states that Mullaney had a recognized disability under the ADA involving chronic pain, and had a valid prescription for the prescription drug Hydrocodone.  Mullaney received a job offer from Happy Jack’s, but the offer was withdrawn after a routine pre-employment drug test came back positive for Hydrocodone.  According to the lawsuit, Mullaney told Happy Jack's Casino that the test reflected prescription drugs that she took for her disability, and even though she told them that she would provide additional information if needed, Happy Jack's Casino refused to hire her.  According to the Complaint:

Because [Happy Jack’s] didn’t offer Mullaney a chance to offer proof that the drugs were prescribed by a doctor for a medically-recognized condition, the company violated the Americans With Disabilities Act.  Blanket drug-testing rules that cover legally-prescribed medications do not comport with the law

            Typically, most company drug testing policies include provisions that allow employers to either disclose their legally prescribed prescription in accordance with the ADA, or to otherwise explain or contest a positive test result.  However, this lawsuit should service as a notice for employers to review their current drug testing policies.  This workplace issue is further complicated by the ongoing decriminalization of marijuana in the United States.   Approximately half the states already have legalized marijuana, for either medical or recreational use, and another eight states will be voting on the issue in November.
 

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO" 

 A reader of this blog asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com.  Thanks! 

 



FORMER UNION OFFICIAL’S “GOOSE IS COOKED” IN “TOP CHEF” UNION EXTORTION CASE

            “Top Chef” is one of my favorite shows, and because of my last post on a legal victory against union hardball tactics, this story out of Boston caught my eye. 

            Mark Harrington, a former official of Teamsters Local 25 pled guilty to federal extortion charges in connection with union threats of physical violence and production disruption against the cast and crew of the top-rated culinary reality show because they were using non-union workers. Charges are still pending against four other union members, who have entered pleas of not guilty. Bean Town politics also are entangled in the case. In a separate but related federal  indictment, Boston’s head of tourism is accused of withholding permits for Top Chef to film in the area and calling local restaurants that were scheduled to host the show, and threatening them that they would be picketed by the union if they did not withdraw the invitations.

            After the union officials were initially indicted in 2015, Local 25 argued that they were not engaged in criminal activity, but were instead engaged in the protected concerted activity of picketing, as allowed for under the National Labor Relations Act (“NLRA”).  However federal prosecutors fired back that the union defendants were not entitled to collective bargaining rights because they did not have a collective bargaining agreement with the Top Chef production company, and the positions they were seeking for union members already were filled by non-union employees.  The ugly facts of this case make it clear that what occurred was not protected union activity under the NLRA.  As noted by U.S. Attorney Carmen M. Ortiz at the time of the September 25, 2015 indictments:

In the course of this alleged conspiracy, they managed to chase a legitimate business out of the City of Boston and then harassed the cast and crew when they set up shop in Milton. This kind of conduct reflects poorly on our city and must be addressed for what it is – not union organizing, but criminal extortion.

           
             Here is what happened.  In June 2014, Top Chef came to Boston to film the twelfth season of the show.  This included Top Chef host Padma Lakshmi.  Following the threats against Boston restaurants, they withdrew their offers to host the filming of the show, and Top Chef decided to move their production plans to a well-known restaurant in nearby Milton, Massachusetts. During the production of the show, Local 25 members picketed the restaurant, physically roughed up members of the production crew, and slashed the tires of fourteen production workers. 

            From the picket line outside the Milton restaurant, the members of Local 25 screamed racist, sexist and homophobic threats and slurs for hours as production crew and cast came and went.  Some of the worst conduct was directed toward the show’s host. When Lakshmi arrived at the scene, one of the union members rushed her car and screamed “We’re gonna bash that pretty face in, you f***ing whore!”  In responding to local media reports of the incident at the time, a Local 25 spokeswoman stated, “As far as we’re concerned, nothing happened.”

            The indictment a year later charged the union members with using violent tactics in an attempt to extort jobs from Top Chef under the threat of disrupting or shutting down production.  By agreeing to plead guilty, Harrington, who was the former Secretary-Treasurer of Local 25, received a deal in which he will receive no prison time and will spend no more than two years of probation.  The maximum sentence available was up to 20 years in prison and fines of up to $250,000.  The other union members still await trial.

            According to media reports, this is not atypical behavior for Local 25.  Other union members have previously been convicted of money-laundering, extortion, racketeering and shaking down movie producers who tried to film in Boston.  The union is politically active, and has made campaign donations to Boston Mayor Martin J. Walsh, a former union attorney, every member of the Boston City Council, and Attorney General Maura Healey.

            The good news in this case is that the U.S. Department of Justice took action against obviously criminal and terrorizing action by the union, but the bad news is that the relative “slap on the wrist” no jail-time sentence of Harrington is unlikely to prove much of a deterrent to such abusive union activity in the future. There is no indication as to what, if any, involvement the National Labor Relations Board ("NLRB") had in the case.

            In light of the NLRB’s recently announced joint employer standard for franchise operations, an interesting perspective on the Top Chef incident was offered in an article by the Competitive Enterprise Institute entitled “Why Isn't There a Joint Union Standard?”  According to the author:

The NLRB argued in the majority that companies utilize common business relationships—franchising, contracting and temporary staff—to insulate themselves from labor violations and collective bargaining responsibilities.

Seemingly, if corporations are deemed liable for the wrongdoings of an entity that they voluntarily associate with and may reserve control over, then why are labor unions insulated from liability when union officials commit criminal acts when pursuing union objectives—in this case, obtaining work? Also, why is a national union shielded from liability when local unions commit criminal acts?

A national union, in essence, acts in a similar fashion as a franchisor of labor services. National unions let local unions use its brand, “provide services to their locals, such as legal advice and leadership training” and help negotiate collective bargaining agreements.

           
          As they might say on Top Chef, food for thought.

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO" 

 A reader of this blog asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com

Thanks! 

 





UNION LEARNS “DON’T MESS WITH TEXAS” (AND RELATED NLRB FUN)

 

           A Texas janitorial service cleaned up last week when a Texas jury awarded it $5.3 million in damages in the company’s defamation/disparagement/harassment lawsuit against the Service Employees International Union (“SEIU”).  The victory in this groundbreaking case may encourage more employers to go on the offensive and sue over hardball tactics used by unions in union campaigns and contract disputes.

            The facts of the case, which go back more than a decade, read like a John Grisham novel.  In 2005, SEIU sought to unionize janitorial workers in Houston with a “Justice for Janitors” campaign.  All but one of the janitorial companies agreed to accept SEIU as the bargaining representative for their employees.  However, Professional Janitorial Services (“PJS”) declined to do so, insisting, as allowed under the National Labor Relations Act (“NLRA”), that representation be decided by a secret ballot vote of their employees.

            According to the testimony and evidence presented during the four weeks of trial, this kicked off years of dirty tactics by the SEIU.  This included efforts to destroy PJS with an organized campaign of misinformation, specifically designed to cause PJS to lose money and customers.  The evidence, including internal SEIU e-mails, showed that the union intentionally and knowingly made false allegations that PJS was illegally withholding employee’s pay, forcing them to work off the clock, or firing them for engaging in union activity.  The union filed “unfair labor practice” complaints against PJS with the National Labor Relations Board (“NLRB”) and then would withdraw them, causing the company to needlessly incur legal costs.  The evidence also showed that SEIU would send letters to PJS’s customers, making false accusations, and would stage disruptive demonstrations designed to intimidate customers into dropping PJS.  Every time PJS lost a client, someone from the union would send an e-mail claiming credit.

            In an interview with the Houston Chronicle, PJS’s chief executive Brent Southwell stated "The jury found what PJS and its employees have known for more than a decade . . The SEIU is a corrupt organization that is rotten to its core." Obviously worried about the precedent set by PJS’s legal victory, SEIU has announced its plans to appeal the jury verdict.

           In other NLRB news, it appears unions also are learning that the Board’s position on social media applies to them as well.  In recent years, the NLRB has taken the position that employees’ social media postings qualify as protected concerted activity under Section 7 of the NLRA.  Since then, the NLRB has brought action against numerous companies for terminating employees who post disparaging comments about their employer, or in some cases, simply for having overbroad social media policies that might “chill” an employee’s right to engage in concerted activity.

            Despite a very pro-union NLRB, the Board has now ruled against a local union in New York State for retaliating against a member because of his Facebook postings critical of the union and raising accusations of union corruption, including improperly giving a union journeyman’s book to a local candidate for mayor.  According to the Administrative Law Judge Opinion, the union then retaliated against Frank Mantell by finding him guilty of disrupting the operation of the union, fining him $5,000, and suspending his membership for two years.

            Mantell filed an unfair labor practice complaint against the union with the NLRB.  The ALJ in the case ruled against the union, and found that Mantell’s Facebook postings were protected concerted activity:

One could argue that Mantell did not engage in protected activity because the issuance of a journeyman’s book to Mr. Choolokian did not affect him, or even if it did, his Facebook posts only complained about the effect on apprentices.

 

Nevertheless, I find that Mantell’s Facebook posts were protected. First of all, issuing a journeyman’s book to someone allegedly ineligible to receive one, affected Mantell in that one more journeyman would arguably impact his opportunities for employment. Moreover, as Judge Learned Hand pointed out, employees making common cause with fellow employees are engaged in protected activity. Even though the immediate quarrel may not concern them they may be assured that if their “turn ever comes,” they will have the support of those they are then helping.

 

I also reject Respondent Union’s assertion that Mantell forfeited the protection of the Act by maliciously defaming the Union and Business Manager Palladino. Nothing Mantell said in his Facebook posts was maliciously and knowingly untrue. The Union takes issue with the fact that Mantell characterized the Union’s action as giving Choolokian “a gift.” I find that has not been proven to be false despite the fact that Choolokian may have paid for the journeyman’s book. Mantell’s use of the term “gift” can reasonably be interpreted as arguing that Choolokian was not entitled to a journeyman’s book—an assertion that may or may not be true. (citations omitted)

            The ruling may provide some small comfort (or amusement or schadenfreude) to the many companies trying to draft social media policies that will pass NLRB muster.  It seems the NLRB is inclined to take just as expansive an interpretation of Section 7 against the unions as it does against private business.

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO" 

 A reader of this blog asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com

Thanks! 

 

 

 

 

 

 



The EEOC Issues Employers New Enforcement Guidelines on Retaliation

 



         Nearly half of all claims filed with the U.S. Equal Employment Opportunity Commission (“EEOC”) address allegations of retaliation.         Retaliation occurs when an employer takes a materially adverse employment action against an employee for engaging in protected activity under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”) or any of the other federal anti-discrimination laws administered by the EEOC.  Generally, protected activity consists of either filing an EEOC Charge of Discrimination, or opposing unlawful employment actions.

        The EEOC has now issued its final Enforcement Guidance on Retaliation to replace its 1998 Compliance Manual section on retaliation. In the 18 years since the 1998 guidelines, the United States Supreme Court has issued numerous rulings concerning retaliation claims, and the new enforcement guidelines are intended to assist employers in addressing retaliation claims and avoiding liability.

            Not surprisingly, the EEOC’s new guidelines take a very broad and expansive view of what constitutes protected activity for purposes of triggering a retaliation claim. For instance, the EEOC states that “sometimes there is retaliation before any ‘protected activity’ occurs. For example, an employment policy that discourages the exercise of equal employment rights could itself be unlawful.”  Other examples of protected activity listed in the guidelines include:

·         Taking part in an internal or external investigation of employment discrimination, including harassment;

·         Filing or being a witness in a charge, complaint, or lawsuit alleging discrimination;

·         Communicating with a supervisor or manager about employment discrimination, including harassment;

·         Answering questions during an employer investigation of alleged harassment;

·         Refusing to follow orders that would result in discrimination;

·         Resisting sexual advances, or intervening to protect others;

·         Reporting an instance of harassment to a supervisor;

·         Requesting accommodation of a disability or for a religious practice; or

·         Asking managers or co-workers about salary information to uncover potentially discriminatory wages.

            In its guidelines, the  EEOC stresses that the protections against retaliation apply not only to current employees (full-time, part-time, probationary, seasonal, and temporary), but also to applicants and to former employees.  The guidelines also note that the protections apply regardless of an applicant or employee's citizenship or work authorization status.  The guidelines offer the following examples:

·         A supervisor cannot refuse to hire an applicant because of his EEOC complaint against a prior employer, or give a false negative job reference to punish a former employee for making an EEOC complaint.

·         An employer suspects a worker is undocumented but does not attempt to verify her authorization to work as required by the immigration laws. If the worker raises an EEOC complaint, such as sexual harassment or national origin discrimination, and the employer then threatens to expose the worker's immigration status as punishment for complaining about EEOC violations, the employer would violate the ban on retaliation.

            The EEOC guidelines make it clear that an employee does not have to be terminated or demoted to have a viable retaliation claim, and much lesser employment actions can be enough to impose liability.  The EEOC’s standard is that an employer is not allowed to do anything in response to protected activity that would discourage someone from resisting or complaining about future discrimination.  For example, depending on the facts of the particular case, it could be retaliation because of the employee's protected activity for an employer to:

·         reprimand an employee or give a performance evaluation that is lower than it should be;

·         transfer the employee to a less desirable position;

·         engage in verbal or physical abuse;

·         threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);

·         increase scrutiny;

·         spread false rumors, treat a family member negatively (for example, cancel a contract with the person's spouse); or

·         take action that makes the person's work more difficult (for example, punishing an employee for an EEOC complaint by purposefully changing his work schedule to conflict with family responsibilities).

            The EEOC guidelines acknowledge that engaging in protected activity does not shield an employee from discipline or discharge. Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences. It is not uncommon for poorly performing employees, aware that they face discipline or termination, to suddenly file a baseless EEOC Charge or assert frivolous claims of discrimination as a form of “job insurance”, knowing that employers will then be worried that justifiable actions might be perceived as retaliatory.  Examples of non-retaliatory and non-discriminatory reasons for discipline or termination include poor job performance or low productivity, or where the employee's actions in opposing discrimination interfered with job performance or involved something illegal or disruptive to the workplace.

            To avoid retaliation claims, the EEOC advises maintaining a written and easily understood anti-retaliation policy, combined with training.          Supervisors and managers may not know that certain acts are considered illegal retaliation or interference. Employees may benefit from instruction on how to handle tough situations where retaliation or interference is likely to occur.  The importance of documentation and review of employment actions is also stressed.  The guidelines suggest that managers and supervisors may be more aware of actions that can be viewed as retaliatory if they are required to justify negative employment actions in writing. Other supervisors could be asked to review these negative actions to ensure that they are justified and consistent with existing practice. 



NON-COMPETE AGREEMENTS UNDER ASSAULT

In my blog of May 26, 2016, I discussed a report released by the White House, highly critical of the non-compete agreements commonly used by American employers.  I noted at the time that the Administration could not take any direct action, because such agreements are governed under the individual laws of each state, and are not governed by federal law.  However, the report made it clear that the White House intended to:

[I]dentify key areas where implementation and enforcement of non-competes may present issues, examine promising practices in states, and identify the best approaches for policy reform”, suggesting plans to lobby state legislators and policymakers in the individual states.

It appears that the White House’s efforts already have borne fruit in the President’s home state of Illinois. Earlier this month, Illinois Governor Bruce Rauner signed into law the “Illinois Freedom to Work Act”, which will go into effect January 1, 2017.  The Act would prohibit employers from requiring employees to sign non-compete agreements if they make less than $13 per hour.  The new law is not supposed to have any effect on the enforceability of confidentiality agreements designed to protect trade secrets or other confidential business information.

The recent uproar over non-competes began over a sandwich, or more accurately, a sandwich maker.  Back in 2014, I reported how sandwich chain Jimmy John’s had attracted some unwelcome attention by requiring low-level employees to sign two-year non-compete agreements as a condition of employment.  After the story first broke nationally, Congressional Democrats sent a letter to the Federal Trade Commission (“FTC”)  and the U.S. Department of Labor (“DOL”), describing the restrictive covenants as “clearly anti-competitive and intimidating to workers.” The House Democrats asked for the FTC and the DOL to investigate the sandwich chain. 

Illinois Attorney General Lisa Madigan upped the ante, and on June 8, 2016, filed a lawsuit against Jimmy John’s, alleging the sandwich maker’s non-compete agreements were illegal under Illinois law “[b]y locking low-wage workers into their jobs and prohibiting them from seeking better paying jobs elsewhere, the companies have no reason to increase their wages or benefits.” Under Illinois law, non-compete agreements must be premised on a legitimate business interest and narrowly tailored in terms of time, activity and place. The State of New York was apparently about to take similar legal action, however, Jimmy John’s reached an agreement in June with New York Attorney General Attorney General Eric Schneiderman, in which the sandwich chain agreed to stop including sample non-compete agreements in hiring packets it sends to its franchisees. Jimmy John’s also agreed to inform its New York franchisees that the Attorney General has concluded the non-compete agreements are unlawful and should be voided.

It bears mention that in New York and Illinois, and most other states, non-compete agreements, in of themselves, are not illegal and are enforceable under the appropriate circumstances.  The real focus here, and the basis for the hostility from elected officials, is requiring low-level and low-paid employees to sign such agreements without a legitimate business purpose.  I anticipate more states will be taking legislative action similar to the new Illinois law.

While such restrictive employment covenants are generally not favored by the courts, they will be enforced if the terms of the agreement are reasonable under the particular circumstances.  Generally, there are three requirements: (1) the employer has a valid interest to protect; (2) the geographic restriction is not overly broad; and (3) a reasonable time limit is given.  The employer bears the burden of proving the reasonableness of the agreement.  The reason these types of agreements are construed very narrowly is that most courts recognize that an employer is not entitled to protection against ordinary competition from a departing employee.  Non-compete agreements can be valuable tools to protect an employer’s legitimate business interests, but generally, it is inadvisable to have low level employees sign such agreements, because they are typically not going to possess the confidential information that would warrant enforcement of the agreement. 

In most of the matters I’ve handled involving non-compete agreements, the employees in question were either highly trained individuals in technical or creative fields, with direct access to their employer’s trade secrets, or were high level sales people with similar access to confidential customer information.  I would be hard pressed to come up with a scenario where a fast food employer would legitimately need  to have a crew worker enter into a non-compete agreement, no matter how good the sandwich.

The lesson to be learned is that the use of these agreements should be confined to key employees whose knowledge of trade secrets and other confidential information could cause serious damage if they went to work for a competitor.  In light of the recently enacted federal Defend Trade Secrets Act ("DTSA") of 2016, businesses now have greater protection, but need to take affirmative steps as soon as possible to take advantage of all the provisions of the new law.  For more information on DTSA, see my recent article in the Mississippi Business Journal.



The Toxic Employee: A Lost Cause or a Fixable Problem?

I.  INTRODUCTION

Very few people would gamble their health and safety by exposing themselves every day to a toxic waste dump full of poisonous and corrosive chemicals.  However, on a daily basis, many employees and managers face the workplace equivalent in dealing with toxic employees.  These are employees who have a poisonous effect on co-workers’ health and morale, and can have a corrosive impact on a company’s performance, corporate culture and bottom line, including increased litigation costs. They breed discontent, cause problems for co-workers, managers, and frequently are dishonest or unethical.  Toxic employees come in many varieties, but include the non-productive “slacker”, the negative and disgruntled worker, the manipulative passive-aggressive, and the office bully.          

A toxic employee in the workplace has been be compared to a low grade infection in that “[y]ou can live with it for a while but, if not properly treated, it can develop into a full-blown infection – making you, and your business suffer.”[1]  Studies also show that the behavior of toxic employees is contagious and can infect a workplace.  “[I]n other words, employees are many more times more likely to engage in toxic behavior if they’ve been exposed to other toxic employees.”[2] For these reasons it’s crucial for employers to try to avoid hiring such toxic employees in the first place, and ideally, human resource professionals will spot such individuals early in the interview process.  However, such toxic behavior often develops over time, and if they do get hired, employers face the option of either trying to reform the toxic behavior, or cutting their company’s losses, and terminating them.

II.  THE COST OF TOXIC EMPLOYEES

So what is the cost of hiring a toxic employee?  A recent study by the Harvard Business School looked at the cost to companies of hiring otherwise skilled employees who engaged in toxic behavior, and compared those costs to the benefits of hiring so-called “superstar high-performers.”[3]  According to the study “avoiding a toxic employee could save a company $12,500 in turnover costs, while bringing in a superstar only added about $5,300 to a company’s bottom line.”[4]  Other business sources are more pessimistic about the cost of such bad hires.  A 2012 survey by CareerBuilder found that taking into factors such as potential litigation, costs of recruiting and hiring replacement workers, lower employee morale and negatively affected customers, the actual cost for each bad hire can range from $25,000 up to $50,000.[5] Toxic employees also have a significant negative impact on their co-workers.  These include:

• Higher Employee Turnover Rates.  In a recent report by the employee training software company Cornerstone, “good employees are 54 percent more likely to quit when they work with a toxic employee, if the proportion of toxic employees on their team grows by as little as a 1:20 ratio.” ^[6] 

• Workplace Stress/Health Problems.  In addition to being unpleasant, working with a toxic co-worker can be bad for both your physical and mental health.  According to a study by researchers at the Harvard Business School and Stanford University, such workplace stress is as bad for your health as secondhand smoke.[7]  Research shows that work stress increases the chance of a heart attack by 23%.[8]

• Lawsuits/EEOC Charges.  Frequently the conduct of toxic employees toward their co-workers can result in EEOC Charges of Discrimination and lawsuits for harassment based on protected categories, such as race, gender, sexual orientation or ethnicity, or on the basis of a hostile work environment.

• Low Morale/Loss of Commitment.  A toxic employee’s lack of enthusiasm or negative attitude can result in other employees having to pick up the slack, and they are sometimes referred to as “energy vampires” because the suck the life out of their co-workers.[9]  Having a toxic employee in the workplace can also result in employees losing their respect for the company for hiring the toxic employee or for failing to address the toxic behavior.  A recent survey shows four out of five employees believe management does not do enough to combat toxic employees, and are somewhat or extremely tolerant of such individuals.[10]

Compounding all of these problems is some recent bad news for employers regarding the new generation of employees.  A 2016 Gallup survey of the “millennial workforce”, those born between 1980 and 1996, or ages 20 through 36, show a majority are “checked out” and not engaged at work, and a significant percentage of this 73-million member generational group would qualify as toxic employees.[11]  The survey looked at whether such young employees are engaged at work, with “engaged” being defined as “emotionally and behaviorally connected to their job and company.”[12]  The results are as follows:

• Only 29 % of millennials are engaged at work (The lowest in decades)

• 55% of millennials are not engaged at work (Indifferent about work and just show up and put in their hours)

• 16% of millennials are actively disengaged at work (More or less out to do damage to the company)

III.  A ROGUE’S GALLERY OF TOXIC EMPLOYEES

Mr. or Ms. Negative – The Sower of Dissatisfaction

Just because an employee is not always cheerful does not mean they are a toxic employee.  There is a big  difference between occasionally being disagreeable and always being negative.  When employees have been surveyed about the most toxic and harmful characteristics of a co-worker, 78 % of respondents ranked negativity higher than other qualities such as laziness, passive-aggressiveness, or gossiping, and 33 % of those survey felt such employees should be fired.[13]  The characteristics of Mr. or Ms. Negative include:

• Constant complaining – Never failing to see the bad side of things

• Constant comments to other employees about all the things the employer is “doing wrong” or how badly the employer is treating employees (especially them)

• Responds to new initiatives with all the reasons “it can’t be done” or won’t work” and hinders creativity and innovation

• Avoids resolving issues / Re-directs blame

• Feels powerless to actually do anything to resolve or eliminate a situation that is unpleasant or disagreeable so instead they complain

• Warning: Constant negativity can be symptomatic of mental illness or depression, which should be considered when addressing the problem 

The Slacker

This is the type of employee who will expend more effort avoiding work than actually doing their job.  This type of employee is a drain on a workplace’s productivity and enthusiasm, and fosters resentment from hard working employees.  As noted by the cloud communication company GetVoip, “[s]lackers are happy to let everybody else pick up the slack, and don’t seem to care what other team members or their managers think of them.  If they can get away with it, they will.”[14]  The traits of the slacker include:

• Low motivation / Unwillingness to help others

• Lack of regard for deadlines

• Absenteeism / Tardiness

• Wasting time online

The issue of online time wasting is not an insignificant problem.  While most employers permit a certain degree of non-business internet surfing by employees at work, the Slacker takes it to a level that is destructive to workplace productivity.  What follows is a listing of the estimated yearly productivity costs to businesses from such online activity: [15]

·      Playing Angry Birds - $1.5 Billion

·      Using/Surfing Facebook - $28 Billion

·      Playing Fantasy Football - $17.8 Billion

The Needy Employee

A subset of the Slacker employee is “The Needy Employee.”  This employee is typically incompetent, erratic, and unreliable and hurts productivity by constant appeals for help and relying on others to correct or bail them out from their mistakes.  This results in widespread frustration among the rest of the workforce.[16]  Characteristics of the Need Employee include:

• Learned helplessness

• Disorganization

• Lack of credibility

• Passivity

The Passive-Aggressive Employee

In the book “The Angry Smile: The Psychology of Passive-Aggressive Behavior in Families, Schools and Workplaces” passive aggression is defined as “a deliberate and masked way of expressing hidden or covert feelings of anger.”[17] In other words, these type of people act out in ways that are meant to sabotage others. 

The Passive-Aggressive Employee is a master of manipulation, and will be friendly on the surface, but aggressive and hostile in the background.  Confronting this type of employee is difficult, because they are by their nature, non-confrontational.  “Instead of openly discussing issues that may be bothering them, they may instead make inappropriate remarks or mumble under their breath, which makes it extremely uncomfortable for others to be around.”[18]  Passive-aggressive employees present one of the toughest workplace challenges to both managers and coworkers. “Left unaddressed, passive-aggressive actions can spread to other employees and create a culture of heel dragging and mute rebellion.”[19]The tactics used by the Passive-Aggressive Employee include:

• Gossip

• Sarcasm

• Sabotage / Revenge

• Breaking chain of command

• Back stabbing

The Bully

Workplace bullying is defined as repeated, health-harming mistreatment of one or more persons (the targets), by one or more perpetrators, and  the abusive conduct can take one or more of the following forms:

• Verbal abuse

• Threatening, intimidating or humiliating behaviors (including nonverbal)

• Work interference – sabotage – which prevents work from getting done

     The Workplace Bullying Institute, offers a more detailed definition:

It is mistreatment severe enough to compromise a targeted worker's health, jeopardize her or his job and career, and strain relationships with friends and family. It is a laser-focused, systematic campaign of interpersonal destruction. It has nothing to do with work itself. It is driven by the bully's personal agenda and actually prevents work from getting done. It begins with one person singling out the target. Before long, the bully easily and swiftly recruits others to gang up on the target, which increases the sense of isolation.[20]

According to a 2010 Zogby survey commissioned by the Workplace Bullying Institute, it is a problem that can occur in any workplace.  The results of the survey included the following points:

• 35% of workers have been bullied

• 62% of bullies are men

• 58% of targets are women

• Women bullies target women in 80% of cases

• The majority (68%) of bullying is same-gender harassment

• Generalized bullying is four times more prevalent than illegal harassment

 In addition to the corrosive effect on workplace morale, corporate culture, productivity and employee retention, failure to quickly and effectively address incidents of workplace bullying can be costly to employers.  If the workplace bully is target another employee on the basis of a protected category, i.e. race, gender, sexual orientation, age, religion, disability, it is a sure-fire recipe for a lawsuit under Title VII or the other federal anti-discrimination statutes.  The Catch-22 with workplace bullies is they frequently are productive high performers.

While generalized bullying, which is not on the basis of any protected category, is not illegal or the basis for a discrimination lawsuit, there is a push to change that.  There is a push in many states and in Congress to enact what is called the Healthy Workplace Bill (“HWB”) which would make generalized bullying illegal and provide legal recourse to the targets of such bullying against the bully, and the employer.  The HWB has not yet been enacted but has been gaining increased support.  It’s central provisions are as follows:

• Provides an avenue for legal redress for health harming cruelty at work (requires proof of harm by licensed healthcare professional)

• Allows the workplace bully to be sued as an individual

• Holds the employer accountable (Protects conscientious employers from vicarious liability risk when internal correction and prevention mechanisms are in effect

• Restoration of lost wages and benefits

• Compels employers to prevent and correct future instances

While it remains to be seen if the HWB will gain any traction in state legislatures or in Congress, it is clearly to an employer’s benefit to proactively step steps to prevent this abusive and unnecessary behavior and ensure their employees work in a positive, healthy environment.

The “Hot Head”….or Worse

The “Hot Head” employee is a worker who easily overreacts to workplace situations, resulting in temper tantrums, yelling at co-workers, throwing objects or damaging company property.  Employers should be on alert for such behavior, because the Hot Head can potentially cross the line from being a toxic employee to being a potentially dangerous and violent employee.  Personal security expert Robert Siciliano offers the following characteristics that can be warning signs for danger:[21]

• Difficulty getting along with others, including inappropriate remarks about others

• Constantly angry and upset about everything and everyone

• Makes vindictive or violent references such as “He will get his someday,” “What comes around goes around,” or “One of these days I’ll have my say.”

• Lacking social skills and their presence makes others feel uncomfortable and they have an edge to them that makes others not to want to be around them

• A victim attitude of always blaming others for their behaviors, faults, mistakes or actions

• Litigious nature. Taking legal action against neighbors and employers and constantly filing grievances as a way of virtually controlling others

• Diagnosed or undiagnosed clinical paranoia, in which they think others – including employers or co-workers, are out to get them

The Martyr/Workaholic
“The Martyr” would not seem to naturally fit into the classification of toxic employee.  The complete opposite of “The Slacker”, “The Martyr” insists on taking on all tasks and insists on doing everything themselves.[22]  So what is the problem with such a hard-working dedicated employee?

Not just a hard worker, The Martyr also want to let everyone know what they are sacrificing for the job.  They may have control issues, or may be working too hard to prove themselves, but they bring an imbalance to the team, foster unrest in the ranks, and are at risk of burnout. [23]

Recent research suggests that such workaholic behavior is comparable to a form of addition, and that there is a link between such behavior and “OCD” or obsessive compulsive disorder.[24] The same study found such employees often suffer from anxiety or meet the clinical criteria for depression.[25] The problematic traits of such a seemingly dedicated employee include:

• Doesn’t know his/her limits

• Complains often/nonconstructive attitude

• Comes to work when sick and infects everyone else

• Prone to burnout / Loses motivation.[26]

Other Flavors of Toxic Employees

The examples given above is not intended to be an exclusive list, since toxic employees can come in many different flavors, and varying degrees of toxicity.  Other types include:

•  Drama Kings or Queens

• The Entitled Narcissist (Believes deserves raises, promotions, accolades regardless of actual accomplishments) 

• The Socialite (time waster) 

IV.  FIX THE PROBLEM OR FIRE THE EMPLOYEE?

To loosely paraphrase the great 18^th century parliamentarian Edmund Burke, “[t]he only thing necessary for the triumph of toxic employees is for good employers to do nothing.” In other words, toxic employees frequently get away with their negative and destructive behavior because employers let them do it. 

In some cases, the toxic employee may actually be a highly producing or strategically important employee, and the employer is reluctant to risk correcting the bad behavior at the risk of losing the employee.  However, in most cases, the behavior continues because employers do not want to have to confront a difficult.  What are some ways businesses can proactively address the problem of toxic employees?

Foster communication.  Maintain an open-door policy that fosters communication and feedback and that allows employees to report toxic behavior by co-workers so you can identify the problem.

Address the problems promptly. Delay can cause the issue to fester and employees will resent employer’s failure to address the toxic employee/behavior.

Meet with employee and engage in frank interactive dialogue. Listen to employee’s reasons for toxic behavior (Have a second person present as a witness).

ADA/FMLA Issues. Be compassionate and be alert for any ADA/FMLA related issues.

Give specific examples of unacceptable conduct. Be sure to carefully document specific incidents so you can bring them up to your employee and explain exactly what the problem is without using emotional language, i.e., “Jane reported that you subjected her to bullying and hostile behavior and you yelled insulting comments about her appearance.”

Focus on the Behavior not the personality.  Recognize the goal is to improve the situation and correct the behavior, and that it is unlikely you will change the personality or general attitude of the employee.

Deadline for improvement. Give them a chance to change their ways and explain to the employee you will need to see improvement by a certain date or they will be terminated.

Document the meeting. Give the employee a copy explaining what is expected and the consequences if there is no modification of behavior within the deadline set by the manager.

Stick to the time frame. Terminate the employment effective immediately if there has been no improvement by the period communicated to the employee.

Termination policy.  Have a policy in place for terminations, including cancelling computer access, recovering digital devices, key cards, as well arranging for employee to be escorted off the premises.

Communicate with employees. Without going into specifics, inform co-workers about the decision to terminate the employee rather than keep them guessing and creating rumors.

       

In the case of employees exhibiting risk factors for workplace violence, the Occupational Safety and Health Administration (“OSHA”) recommends the risk of assault can be prevented or minimized if employers take appropriate precautions.[27] One of the best protections employers can offer their workers is to establish a zero-tolerance policy toward workplace violence. This policy should cover all workers, patients, clients, visitors, contractors, and anyone else who may come in contact with company personnel.  By assessing their worksites, employers can identify methods for reducing the likelihood of incidents occurring. OSHA believes that a well-written and implemented workplace violence prevention program, combined with engineering controls, administrative controls and training can reduce the incidence of workplace violence.

This can be a separate workplace violence prevention program or can be incorporated into an injury and illness prevention program, employee handbook, or manual of standard operating procedures. It is critical to ensure that all workers know the policy and understand that all claims of workplace violence or threats of violence will be investigated and remedied promptly. Depending on the circumstances, the employer should at the earliest opportunity involve Human Resources, company security personnel, and if necessary, local law enforcement.   

What about efforts to correct the behavior of some of the specific toxic employees discussed above before making the decision to terminate? Pre-termination antidotes for The Slacker include:[28]

• Uncovering  hidden resentments

• Provide clear expectations

• Demand accountability

• Impose unscheduled visits and reviews

• Recognize and reward efforts

In the instance of “The Needy Employee”, extra training and improvement plans may be an option to address the employee’s inefficiency, learned helplessness and overreliance on co-workers.  In the instance of the “The Martyr”, an antidote might be enforced delegation and incentivizing teamwork over individual effort.

V.  HOW TO AVOID HIRING THE TOXIC EMPLOYEE

In light of the damage a toxic employee can inflict on a company, it makes sense that the best option is to avoid hiring toxic employees in the first place.  While this is more difficult than it sounds, there are some proactive measures that employers can take in the hiring process.  One of the best measures is to develop a company culture that has zero-tolerance for toxic behavior.  The best organizations make explicit their intolerance for bad apples; they spell out which behaviors are unacceptable in the workplace and act decisively to prevent and halt them. 

This concept has been succinctly demonstrated by CEO Robert W. Baird, who heads a wealth management firm that handles over $100 Billion in assets.  His primary rule for employees is not to put their egos ahead of the their clients or the company.  Baird calls this “the no a**hole rule”, and says job applicants and employees violate it at their peril.^[29]  In a 2013 interview he explained “I tell them, ‘If you're an a**hole, don't come here. We'll fire you.’”^[30]  Baird says he has made good on that promise, even with top producers. “It's not hard at all… People in the trenches stand up and cheer you because they see you really mean it.” ^[31] 

In a recent article by the Harvard Business Review, Georgetown University Professor of Management Christine Porath offered employers the following advice to employers hoping to weed out toxic applicants in the hiring process:[32

Interview for civility and emotional intelligence.  In the average interview, the discussion usually focuses on job skills and experience, but a focus should be on the applicant’s civility in a workplace environment. Porath advises avoiding hypothetical questions, and instead requesting specific examples of how their past behavior matches the values you are seeking in an employee.  Porath says examples of such questions might include: [33]

• What would your former employer say about you — positive and negative? [34]

• What would your former subordinates say about you — positive and negative? [35]

• What about yourself would you like to improve most? How about a second thing? A third? [36]

• Tell me about a time when you’ve had to deal with stress or conflict at work. What did you do? [37]

• What are some signals that you’re under too much stress? [38]

• When have you failed? Describe the circumstances and how you dealt with and learned from the experience. [39]

• What are some examples of your ability to manage and supervise others? When have you done this well? [40]

• What kind of people do you find it most difficult to work with? Tell me about a time when you’ve found it difficult to work with someone. How did you handle it? [41]

• Does the candidate speak negatively of former employers or others? [42]

• Does the candidate take responsibility for behaviors, results, and outcomes, or do they blame others? [43]

• Follow up with every employee who encounters the candidate, not just those on the  interview schedule. How an applicant treats individuals who they do not view as important to the hiring process can speak volumes.  How did they treat the person who drove them from the airport or the receptionist?  Were they friendly and polite or rude and condescending? [44]  

• Porath recommends that a person-to-person call to a reference “is more likely to reveal any specific behavioral problems. Seasoned recruiters report that the most useful data they get from references comes from follow-up questions, and mainly from the reference’s tone, demeanor, and pace — not necessarily their words. Listen very closely and follow up on hints of trouble.” [50]

• Ask the applicant's references structured questions that get at the heart of the individual's civility, such as:

-        “What’s it like working with him?” [45]

-       “What could he improve on?” [46]

-       “Did her behavior ever reflect negatively on your organization?” [47]

-       “How did his subordinates feel about working for him?” [48]

-       “How emotionally intelligent does she seem? Is she able to read people and adjust accordingly?” [49]

VI.  CONCLUSION

            There is no sure-fire vaccine against hiring a toxic employee, and no guaranteed antidote to fix the problem once they are hired, short of termination.  However, employer awareness of the potential problems can go a long way in making your workplace a toxin-free environment.

---

[1] Robert Bitting, Toxic Employees, Leadership and Organizational Development (2014)

<http://www.robertbitting.com/leadership-training/leadership-training-articles/toxic-employees.php>.

[2] Toxic Employees in the Workplace, Cornerstone OnDemand (2015)

http://www.cornerstoneondemand/sites/default files/whitepaper/wp-toxic-employees-032015.pdf>.

[3] Nicholas Torres, It’s Better to Avoid a Toxic Employee Than to Hire a Superstar, Harvard Business Review

(Dec. 9, 2015) < https://hbr.org/2015/12/its-better-to-avoid-a-toxic-employee-than-hire-a-superstar>.

[4] Id.

[5] Nearly             Nearly Seven in Ten Businesses Affected by a Bad Hire in the Past Year, CareerBuilder (Dec. 13, 2012)

http://www.careerbuilder.com/share/aboutus/pressreleasesdetail.aspx?sd=12/13/2012&sc_cmp1=cb_pr730&siteid

=cbpr&id=pr730&ed=12/31/2012>.

[6] See footnote 2.

[7] Elizabeth Cohen, Stress at Work is Just as Bad as Secondhand Smoke, CNN (Sept. 3, 2015) <

http://www.cnn.com/2015/09/03/health/stress-work-secondhand-smoke/>.

[8] T. Chandola, Work Stress and Coronary Disease: What are the Mechanisms?, The European Heart Journal

(Jan. 22, 2008)<http://dx.doi.org/10.1093/eurheartj/ehm641>.

[9] Ryan Kohler, How Removing Toxic Employees Will Improve Team Morale, ApplicantPro (April 25,

2014)<http://www.applicantpro.com/articles/how-removing-toxic-employees-will-improve-team-morale/>.

[10] Toxic Employees Survey 2015, Fierce, Inc. (July 15, 2015) < http://www.fierceinc.com/about-fierce/press-

room/press-releases/toxic-employees-survey-2015-new-survey-finds-four-out-of-five-workers-believe-leadership-

isnt-doing-enough-to-combat-toxic-employees>.

[11] Paul Bedard, Gallup: Millennials 'checked out' at work, 16% 'out to do damage to employer', Washington

Examiner (June 7, 2016) <http://www.washingt/onexaminer.com/gallup-millennials-checked-out-at-work-16-out-

to-do-damage-to-employer/article/2593180>.

[12] Id.

[13] Toxic Employees : Colleagues Advocate Confrontation While Employers Perceived as Too Tolerant, Fierce, Inc.

(Sept. 19, 2013) < http://www.fierceinc.com/uploads/PressRelease-Infographics/ToxicEmployeesFinalRelease.pdf>.

[14] Reuben Yonatan, 5 Types of Toxic Employees and How to Deal With Them, GetVoip (Feb. 24, 2015) <

https://getvoip.com/blog/2015/02/24/toxic-employees/>.

[15] Id.

[16] Id.

[17] Jody Long, Nicholas James Long, Signe Whitson, The Angry Smile: The Psychology of Passive-Aggressive

Behavior in Families, Schools and Workplaces (Pro Ed Publishing 2009).

[18] Vivian Giang, 8 Ways to Deal With Passive Aggressive Employees, American Express Small Business Forum

(Oct. 13, 2014) < https://www.americanexpress.com/us/small-business/openforum/articles/8-ways-deal-passive-

aggressive-employees/>.

[19] Katherine Reynolds Lewis, Can you rehabilitate a Passive Aggressive Employee?, Fortune, Inc. (Aug. 2, 2011) http://fortune.com/2011/08/04/can-you-rehabilitate-a-passive-aggressive-employee/>.

[20] Frequently Asked Questions, Workplace Bully Institute (2015) <http://www.workplacebullying.org/faq/>.

[21] Robert Siciliano, Workplace Violence: 12 Signs Of A Dangerous Person, Huffington Post (June 8, 2014)

http://www.huffingtonpost.com/robert-siciliano/workplace-violence-12-sig_b_5110184.html>.

[22] Reuben Yonatan, 5 Types of Toxic Employees and How to Deal With Them, GetVoip (Feb. 24, 2015) <

https://getvoip.com/blog/2015/02/24/toxic-employees/>.

[23] Id.

[24] Susie East, Are You Addicted to Work?, CNN (June 12, 2016)< http://www.cnn.com/2016/06/12/health/work-

addiction-adhd-norway/index.html?campaign_id=A100&campaign_type=Email>.

[25] Id.

[26] Id.

[27] Workplace Violence, Occupational Safety and Health Administration (2015) <

https://www.osha.gov/SLTC/workplaceviolence/>.

[28] Reuben Yonatan, 5 Types of Toxic Employees and How to Deal With Them, GetVoip (Feb. 24, 2015) <

https://getvoip.com/blog/2015/02/24/toxic-employees/>.

[29] Sandra A. Swanson, Best Places to Work 2013, Crain’s Chicago Business (April 1, 2013)

<http://www.chicagobusiness.com/article/20130330/ISSUE02/303309969/best-places-to-work-2013-no-6-robert-w-

baird-co>.

[30] Id.

[31] Id.

[32] Christine Porath, How to Avoid Hiring a Toxic Employee, Harvard Business Review (Feb. 3, 2016) <

https://hbr.org/2016/02/how-to-avoid-hiring-a-toxic-employee>.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Id.

[51] Id.