People come in all shapes, sizes, colors and personalities. Some are easier to work with and manage than others. Personality quirks should not get in the way of hiring a new employee, but knowing how to deal with unusual personalities can save headaches later.

1. The Toxic Worker: This category includes insensitive and bullying personalities. This employee can suck the life out of a work environment with petty comments, inappropriate behavior and rude actions. Keep your ears open to cues of such behavior in the job interview. If the employee only starts acting like a jerk after they’re hired, stay on top of it, issue warnings and if necessary, let them go sooner rather than later. Frame the discipline around the fact that he or she—not an “overly sensitive” group of co-workers—is the problem.
2. The Gossip: Ignoring boundaries, this employee enjoys knowing what’s going on in every other staff member’s life—and repeating it to anyone who will listen. Gossipers can be destructive, contributing to an unpleasant or even hostile work environment. Encourage gossips to bring concerns about other employees directly to management.
3. The Chronic Cell Phone User: Depending on your business, you may or not allow cell phone conversations or texting during work hours. But everyone knows a Chronic Cell Phone User, who ignores any rules and seems unaware of how often they text or how loud they talk. The problem is not only lost productivity, but sometimes co-workers will know more than they should about the employee’s personal life. Establishing rules such as no cell phone use except for break time can help. You might spot a Chronic Cell Phone User if their phone buzzes or actually rings during the interview. People who are aware of cell phone etiquette will always turn off the phone for something as important as a job interview.
4. The Odorous One: Whether it’s perfume, cigarettes, bad breath or even alcohol exuding from their pores, a worker who smells offensive can distract or even sicken others. Many of these issues will be revealed during a job interview—but can you strike the applicant because of the way they smell? Chemical and cigarette insensitivity is a real issue in workplaces, and can even result in legal action. Protecting your staff from illness is an employer’s responsibility. But what about a worker’s private conduct, such as smoking or drinking too much alcohol after work? Speaking directly to the employee is usually necessary, and framing the issue around a business problem—not a personal problem—is the way to go. Let the employee know how their behavior, whether it’s smoking, not bathing, or wearing too much perfume or after shave, is affecting their career, their fellow employees, and the business.

The Americans with Disabilities Act makes it unlawful for employers to discriminate against individuals with disabilities. Since the law passed in 1990, there have been a number of legal decisions to determine who is a “disabled person.” It is an employer’s duty to reasonably accommodate requests made by disabled employees to allow them to perform their job duties. This may include making a restroom accessible, or lowering a work surface so a person in a wheelchair can reach it.

In the case of people who are sensitive to chemicals and scents, how far does an employer need to go to accommodate them? A recent case in Detroit provides a clue. A city planner submitted a claim against the City of Detroit that she was allergic to a co-worker’s perfume. She won a monetary settlement ($100,000) and the City had to adopt a “no-scent” policy, where employers working near her must refrain from wearing scents: cologne, perfume, after-shave and hair products.

The city planner was not only sensitive to the smell of her co-worker’s perfume—she had difficulty breathing. Clearly, it could be argued that the inability to breathe would “substantially impair” a major life activity of the employee. Breathing can certainly be considered a “major life activity.”

The court found that the city did not make a reasonable accommodation for the city planner—there was no policy enacted, asking for restrictions on the use of perfume; there was no attempt to move the planner so she wouldn’t have to suffer the inability to breathe; and there was no attempt to have the perfume-wearer simply stop wearing perfume.

Employers don’t necessarily have to write a “no perfume” policy or install expensive air filtering systems when a staff member informs them of chemical sensitivity. Making reasonable accommodations is all that is required. Employers may also ask the suffering employee for verification that the condition actually exists.

But the lesson from the City of Detroit case is clear. When a worker makes a complaint about conditions interfering with their ability to function (like breathing, for instance), the employer may be held liable for ignoring the problem. It’s certainly less costly to enact a simple policy to make the air easier for everyone to breathe than to defend your actions (or inactions) in court!

Legal disclaimer:
The contents of this article are intended for general information purposes only, and should not be relied upon as a substitute for obtaining legal advice applicable to your situation.

Bullying in schools is all over the news right now—and for good reason. Workplace bullying has been a trend as well. Can so-called “toxic bosses” be a liability to businesses? The answer is a resounding “yes.”

There are strong feelings on both sides of this argument; but today we’ll focus just on the information employers need to be aware of.

The Healthy Workplace Bill gives employers incentives to prevent workplace bullying with policies and procedures that apply to all employees. The bill would protect “workers from what can be considered malicious, health-harming abusive conduct committed by bosses and co-workers.” Is such legislation necessary? Some say yes; others say no. A survey conducted by The Workplace Bullying Institute in September, 2010, which found that 64% of all respondents supported such a bill, while nearly 24% were opposed. 12% had no opinion or were not sure.

17 states have introduced legislation in recent years to curb workplace bullying. None have become law, but in New York, the Senate recently passed a measure that would allow workers who have been abused on the job—either physically, psychologically or economically—to sue their employers in civil court. The bill applies to organizations of all sizes—not just larger employers. It holds employers responsible for bullying behavior of workers and supervisors.

Some experts think that if New York’s measure becomes law, a chain reaction across the country is likely to occur. The bill includes a broad definition of bullying, including repeated insults, epithets and derogatory remarks. It also includes “conduct that a reasonable person” would find humiliating, intimidating or threatening.

Employers are already seeking advice on how to avoid litigation from some New York law firms. Others already have a handle on creating a positive, anti-bullying culture—always a good idea, but especially now. New York’s anti-bullying legislation says that employers “may not be held liable if they take steps to prevent or promptly correct abusive behavior.

How to Prevent Workplace Bullying

• Create a policy that prohibits bullying by supervisors and co-workers.
• Avoid hiring workers with a history of bullying (pre-employment background screening is a must).
• Avoid hiring workers with abusive tendencies by asking the right interview questions.
• Provide training on proper workplace behavior for all employees.
• Take a look at your own management style: high turnover and yelling are good indicators that you could be perceived as a bully.

Defining the difference between discipline and bullying is a tough one—but if in doubt, ask your employees. Some reports say that between 16% and 21% of employees have experienced “health-endangering workplace bullying, abuse and harassment.” Florida State University’s College of Businesses conducted a survey in which 23.5% of respondents working for companies with 100 or fewer employees reported experiencing supervisor bullying on a weekly basis. The number for 100+ employee organizations was slightly less, at 21.3%.

Employers have weathered the economic storm in a variety of ways. Some have replaced laid-off workers with independent contractors, usually known as “consultants,” or “freelancers.” The advantages to employers are many: no payroll taxes, social security or benefits to pay. And, no guilt when it’s time to end the contract—freelancers are used to short-term employment! Independent contractors can be the answer to one of an employer’s biggest headache—payroll.

The downside is when that invisible line is crossed and an employer misclassifies an employee as an independent contractor. Whether it is done intentionally or not, the IRS does not like missing out on revenue it is owed.

And since deficits are so high, those misclassifying employees will be a target of the additional 100 agents the IRS is hiring for fiscal year 2011. Random audits of 6,000 businesses over the next three years is planned.

How to Determine Whether a Worker is an Employee or Independent Contractor
According to the IRS, it’s a matter of degrees of control and independence in the following three categories:

• Behavior: Do you control what the worker does and how they do their job?
• Financial: Do you control the financial aspects of the worker’s job, such as when they are paid and who provides and pays for tools, supplies, etc.?
• Type of Relationship: Is there a written contract? Are there benefits provided to the worker? Is the work performed a key aspect of the business?

There are no real guidelines to help employers determine whether a worker is an employee or independent contractor. The IRS recommends businesses weigh all these factors and acknowledges that factors that are relevant in one situation may not be relevant in others. The keys, the IRS says, are to “look at the entire relationship, consider the degree or extent of the right to control, and document each of the factors used” in making the determination.

If the determination cannot be made, either party may file a Form SS-8 and the IRS will review the form and officially determine the worker’s status.

Small employers often don’t worry about strict regulations and too many rules. With a small group, your employees may be more like family, and if everyone is getting along, it’s a good thing. But what if two or more employees are getting along a little too well, and start seeing each other outside of work? No big deal? But what if one of them is in a supervisory role? Now it gets complicated.

While relationships between coworkers don’t present a threat to employers, those that involve a person in power are a different story. A consensual romance that goes sour could lead to charges that it was, indeed, non-consensual. Favoritism is another potential hot issue, like when a manager promotes her boyfriend. No exactly fair to the other staff, is it? As an employer, you must protect the company from charges of sexual harassment. An inappropriate relationship between a supervisor and subordinate could leave the organization vulnerable to a lawsuit.

That’s why every organization with employees needs a basic, written dating policy. What should it include?

• First, make it clear that while dating is not prohibited, romantic relationships between supervisors and employees are not allowed. Train supervisors to avoid workplace romances with subordinates.
• Some firms avoid issues with nepotism and claims of unfair treatment with a policy that no couples or relatives will be hired.
• Other companies require employees who intend to pursue a romantic relationship to report such to management. Why? For a written record that it is indeed consensual. Make sure to ask for notification when the relationship ends, too.
• Clearly state that sexual harassment will not be tolerated in any form. This includes inappropriate language, behavior, or unwanted attention. Remind employees that “no” means “no.”

How to Deal with the Office Rumor Mill
When one employee spills the beans on another’s extracurricular activities, encourage him or her to pay attention to their own worries, not to mention their job. It’s best not to tolerate employees reporting on each other.

If Jack and Jill’s relationship is creating a negative work environment, deal with it before morale and productivity plummet. Obviously, your employees are being paid to perform their job duties and nothing else, so any damaging behavior should not be tolerated.

As it generally has in the past, the United States Supreme Court has unanimously ruled on the side of employers in a recent case concerning employees’ use of employer-provided technological equipment.

Sexting Police Officers
In the case, two Ontario, CA police officers sued the Police Department after one officer’s department-supplied work pager useage exceeded the allowed limit month after month. A supervisor requested transcripts of text messages sent and received by the employees. The search on Sgt. Jeff Quon’s pager turned up over 400 personal text messages received and sent in one month alone—including sexually explicit messages. The officers claimed the search violated the Fourth Amendment.

Do Employees Have a Reasonable Expectation of Privacy?
The Supreme Court’s decision was based on whether or not the officers had a “reasonable expectation of privacy” concerning their text messages. The department’s formal policy which that employee communications would be monitored—and Quon signed a statement agreeing to the policy. However, Quon’s supervisors informed him that they would not audit texts as long as employees paid any over-limit fees imposed by the wireless service provider.

The 9th U.S. Circuit Court of Appeals ruled that this informal policy was enough to give the officers a reasonable expectation of privacy. But the Supreme Court reversed that ruling, saying that even if Quon had a reasonable expectation of privacy, the ruling itself was indeed reasonable.

How Does the Ruling Affect Employers and Employees?
This ruling indicates the law is on the employer’s side concerning employees’ use of employer-provided equipment. Legitimate company interests trump employees’ privacy interests.

Finding a balance between allowing reasonable personal use of company-issued laptops, cellphones, iPads, and computers and protecting a company’s reputation, business practices and trade secrets is tricky. There is a reason employers provide such equipment—it makes employees more available, and allows work to be done anywhere. Employers are advised to provide employees with detailed policies governing use of such equipment.

Office Manager Pilfers $645,000 from Car Dealership

Finance Manager’s Theft Causes Interactive Business to Shut Down

Furniture Store Suffers $250,000 Loss through Bookkeeper

These headlines are real. Every single day, real employees steal loads of money from their employers. In the United States alone, the amount of property and cash stolen by employees adds up to nearly $1 trillion each year. Whether it’s done by taking property or cash out the door, or falsifying balance sheets, deposits, and checks, embezzlement is a huge problem for businesses.

Often, employees who are charged with embezzlement have a fiduciary relationship with the employer—they are in a position of trust, with access to bank accounts and financial records.

How do they do it? Some embezzlers set up relatives or themselves as phony vendors in the bookkeeping system, then pay phony invoices with real company checks. Others just write checks to themselves or pay their personal bills with company checks.

Embezzlers often start out with small amounts, gradually building up to larger sums when they don’t get caught. Others tell themselves they’ll take the money “just this once,” but find they are unable or unwilling to stop—even after the credit card is paid off, their child’s medical expenses are paid, or they buy themselves a new car.

The guilt felt by an embezzler is often replaced with justification that they are undervalued or underpaid, and therefore the company owes them the money they are stealing. Others feel no guilt whatsoever, and are simply stealing for their own financial gain. For some employees, opportunity is the only “license to steal” that they need.

So how does an employer remove opportunity from the equation—and prevent employee embezzlement?

Be diligent: Managers and owners must have their hands in the business. Know where records are kept, and review them regularly. Are bills or checks outstanding? Are invoices missing? Be an authorized signer on bank accounts, and review activity and statements online. Keep tabs on petty cash, deposit slips, and profit and loss statements.

Listen: Don’t discount when customers complain about double billing—it could be a sign that checks are being detoured to an employee’s account. And if employees report suspicious behavior among their ranks, deal with it immediately. Let employees know you trust them, and care about their job satisfaction. Nip bad attitudes in the bud.

Pay Attention: Employees who regularly offer to work overtime are either great to have, or a potential problem. But what about when the workload doesn’t require it? Staying late with no supervision—especially for an employee with access to cash and financial records—is something embezzlers do.  Embezzlers also spend money they don’t earn—so watch for signs of spending above salary should allow. Driving a new car, showing off expensive jewelry or bragging about trips and pricey restaurants are potential warnings.

Screen employees: Pre-employment background screening is critical to prevent fraud. But don’t stop there—occasional screening for established employees who have access to fiduciary information is also essential.

Employers don’t need to be paranoid about employee fraud. Reasonable safeguards and common sense supervision of employees is often all that is needed to prevent embezzlement. But even the sharpest managers have been fooled by embezzlers—and it can happen to any business.

Up in the Air, the multi-Oscar-nominated 2009 film, features George Clooney as corporate “hit man” Ryan Bingham, whose purpose is to travel around the country and fire people.  Employers hire his company to do the dirty work of letting employees go.

At times, watching the film is painful. The director used real, recently-laid off people to portray Bingham’s victims—and their disappointment, sense of loss, anger, and disbelief are as palpable as Bingham’s cool detachment. He doesn’t know the people whose world he just rocked. Their responses to the news, like “I’ve given this company everything,” “What am I supposed to do now?” or “How can I go home and tell my wife I’ve been fired?” appear to have absolutely no affect on him.

Most employers occasionally have to let employees go. And most do it themselves. The full-scale layoffs depicted in Up in the Air are global corporations, shutting down entire divisions—not small businesses firing a single employee. While it might seem attractive to turn this unpleasant job over to a professional hatchet man, it’s just not possible for most employers.

Most supervisors and business owners say that firing people is one of the worst aspects of their job. So, how does an employer fire someone while treating them well and protecting the company from liability?

Here are some ideas you might consider:

1. Don’t go it alone. A witness is necessary to protect your company from possible discrimination claims.  Have them document what happens.
2. Allow enough time to gather all the necessary paperwork, such as evaluations, warnings and any company separation forms the employee will need to complete. Don’t make the employee squirm while you shuffle through a folder looking for something you need.
3. Be completely professional. This means not getting personal. Don’t say “I’m sorry,” since that can confuse the issue. Your feelings and opinions should not come into the conversation. Keep your voice even, especially if the employee becomes agitated or raises his. And no matter what, don’t argue.
4. Make it quick. Remember the advice about removing a bandage—the quicker, the better? It’s the same when telling an employee she’s laid off or fired. Just give her the bad news, stay calm, and listen to her reaction. Don’t place the blame on “the boss” or “corporate.” It’s easier to assuage your guilt by blaming others, but it’s confusing to the recipient.

Until your company is large enough to hire a professional, be prepared and be kind—but be professional—when laying off or firing your employees. Done correctly, it can have little effect on the organization. Done badly, it can be devastating to both employee and employer!

Employers must be ever-vigilant in providing a safe workplace for all employees. That responsibility includes a workplace harassment policy. Harassment is unlawful and can get an employer in trouble if it goes unmonitored or unpunished.

What is Workplace Harassment?

• It’s an unlawful form of discrimination, based on the Civil Rights Act of 1964.
• It’s defined as unwelcome verbal or physical conduct based on race, color, religion, sex, national origin, age, disability, sexual orientation or retaliation that results in a hostile work environment or a change in an employee’s status or benefits.
• It can affect anyone.
• Is not limited to male on female sexual harassment.

Harassment can range from offensive language or remarks to comments about a fellow employee’s body, skin color, or religion, to inappropriate touching, jokes, gestures, or even emails.

Increase in Sexual Harassment Claims by Men
A growing number of sexual harassment complaints have come from men since the start of the recession, according to the Equal Employment Opportunity Commission (the EEOC). Litigation, including harassment cases, tends to increase during economic downturn, when jobs are harder to find. In the past, men might have responded to sexual harassment by leaving a hostile workplace for another job—but now, when they’re not easily finding other employment, a harassment suit is more likely to be filed.

Harder-hit states for unemployment, like Michigan and California, saw bigger increases in the percentage of sexual harassment claims by men: Michigan’s cases rose 10% from 2007 to 2009, and California’s cases rose 5%.

While the stigma around claiming sexual harassment is huge for both genders, it is even more so for men, say the experts. Men can be seen as weak or unmanly when claiming sexual harassment, so the numbers of reported incidents are most likely lower than what actually occurs.

Employers are often in the dark about harassment; often employees are laid off for economic reasons, and file claims months or years later. Developing and enforcing a strict no-harassment policy is vital. And remember to broaden your definitions to include same-sex harassment. Many employees are more sensitive to what they say around the opposite gender, but might think that sexual jokes and banter among their own gender is okay—but it’s not.

As unemployment continues to hover around 10%, employers could face rising harassment claims—so now is the best time to review your company’s policy and tighten it up as needed. Communicate to and train employees on the policy. Strict workplace harassment policy enforcement is the best way to mitigate risk to your business.

Supervisors everywhere know the frustration of strolling past an employee’s work station, only to find them texting furiously instead of doing what they’re being paid to do. Increasingly, employers are taking steps to cut down on employees’ extracurricular digital communication—whether its instant messaging (IMing), web surfing, texting or making personal phone calls on company time.

Some consider it an invasion of privacy, but the law is solidly on the employer’s side. Employers are allowed to monitor employee communications, and most communication equipment is the property of the business—so its use is dictated by business needs, not staff’s need to keep up with their friends’ latest activities.

Three forces are at work in employee monitoring: first, employers are ever-vigilant about squeezing every ounce of productivity out of workers. If an employee is not giving 100% to his or her employer, there are probably others who will be happy to take over that position. Second, risk-averse employers know that keeping workplaces completely litigation free is an elusive goal—but one that can come closer to happening with the right monitoring practices. Keeping all staff safe from harassment is easier if you know what types of emails and IMs are flying around the company. Third, it’s more important than ever to keep company information and trade secrets confidential. Too many firms have been taken down by loyalty-lacking employees. It’s way too easy to forward a company-only email to the press or a blogger who will quickly spread the information throughout the industry.

Monitoring software is easily found online or at electronics retailers. Depending on the package features, keystroke monitoring, website tracking, and even webcams capture employees’ activities.

Data from 2007 shows that 2/3 of employers check up on employees’ Internet use. From tracking time spent and websites visited, to keystroke monitoring to capture search terms, employers can get a full picture of which employees are using company equipment for work use and for personal use. And a 2009 survey shows that nearly 90% of employees used office networks to send jokes, rumor, or gossip to outside recipients. 14% have sent confidential company emails to third parties.

So far, the courts have ruled that employees have no expectation for privacy when using employer-provided computer systems, cell phones, and pagers. Even employees who send personal emails through a private account are using company servers—and so have no right to expect those emails will not be monitored.

Employers’ best practices are communicating the need for monitoring, and to put a clear policy in place, so workers know exactly what is and what is not allowed—and the consequences for breaking the rules.