David Ray Grant Thornton LLP

Friday and Monday Sickness
EMPLOYEES WITH ALCOHOL AND/OR DRUG ADDICTIONS

Q: I am the Human Resources Manager of an office full of sales people. Presently, I have a one-year employee who routinely misses work on Fridays and Mondays and has used all of his vacation and his sick leave allotment for the year. These absences are causing a huge disruption and adversely impacting morale because other employees have to cover for him. The manager wants me to fire this employee for excessive absences. At a pre-disciplinary meeting this employee broke down and said that he had a “serious drinking problem”. Can you tell me what my obligations are with respect to this employee and whether or not I can terminate him for absenteeism or poor performance?

Simon R. Heath, Keyser Mason Ball LLP

Your example demonstrates that alcohol and drug addictions can become a significant disruption in the workplace if left untreated. However, employers must be careful not to discipline employees with an alcohol and/or drug addiction who are frequently absent from work and have poor performance. This is because human rights legislation across Canada imposes an obligation to accommodate alcohol and/or drug addiction to the point of undue hardship.

As demonstrated by your question, alcohol and drug addiction typically become a problem when it causes one or more of the following: (a) failure to attend and fulfill major obligations at the workplace (i.e., regular attendance at the workplace); (b) they cause a health and safety risk at the workplace; and (c) they contribute to social/interpersonal problems at the workplace.

However, the workplace conduct of an employee who suffers from an alcohol or drug addiction can no longer be viewed a “culpable” in the sense that he/she is responsible for his/her behaviour. This is because all Human Rights Tribunals/Commissions in every Canadian province, territory and the federal jurisdiction now recognize that severe alcohol and drug addictions can constitute “disabilities”. This means that not only are employers required to accommodate an employee’s drug and/or alcohol addiction to the point of undue hardship, employers must be careful not to discipline employees for alcohol and/or drug induced behaviour because this may be considered to be “non-culpable” and therefore the discipline may be contrary to the applicable human rights legislation.

With respect to the duty to accommodate, human rights legislation imposes an obligation upon employers to accommodate an employee’s disability to the point of undue hardship. What constitutes undue hardship is fact-specific and depends on the particular circumstances of each case.

Despite the fact that accommodation and the threshold of undue hardship is fact-specific, the following principles should guide any discussion on the duty to accommodate an employee with an alcohol and/or drug addiction.

The first step is to have the employee acknowledge that he/she has a problem. Employees who suffer from alcohol and/or drug addiction are notorious for denying the existence of these addictions.

Once the employee has acknowledged they have a problem the employer should require the employee to substantiate his/her disability with proper medical evidence. This is important to prove that the employee does in fact suffer from an alcohol and/or drug addiction that constitutes a disability thereby triggering the duty to accommodate (this will distinguish the employee who suffers from a disability from the employee that is just a recreational user of alcohol and/or drugs). In addition, throughout the accommodation process the employee has an obligation to disclose up-to-date medical information (medical information must be limited to prognosis, not a diagnosis).

If the employee does suffer from an alcohol and/or drug addiction, the employer must take the lead in implementing an appropriate accommodation policy and the employee must cooperate with this process. This may involve allowing the employee time off from work to attend counseling to paying for an employee to attend a treatment facility. The extent of the employer’s obligation is driven by the employer’s size and financial health. The employee should also be allowed to return to work following his/her treatment and exceptions may need to be made to existing attendance management policies to accommodate for the employee’s addiction.

Undue hardship will arise if accommodation would create onerous conditions for an employer, for example, intolerable financial costs or serious disruption to a business. It may also arise if an employee occupies a “safety-sensitive” position whereby it is impossible to accommodate because of the inherent dangers associated with the position (i.e., an operator of heavy machinery is in a safety sensitive position). With respect to safety-sensitive position, an employer may be obligated to accommodate the employee in another non-safety sensitive position if possible as part of the duty to accommodate.

Therefore, before an employee with a legitimate alcohol and drug addiction is disciplined for absenteeism or poor performance, the employer must accommodate him/her to the point of undue hardship.

Simon R. Heath, B.A., MIR, LL.B., is an associate in the law firm Keyser Mason Ball LLP and can be reached at sheath@kmblaw.com

NOTE: Simon Heath will be presenting on "Today's Critical Issues in Employment Law" at IPM's Toronto Fall Conference October 28, 2010. Click here for more details

Emerging Trends in Candidate Screening
DUE DILIGENCE IN HIRING MORE CRUCIAL IN PERIODS OF RECESSION

Q: The recession has taken a hard toll on both employers and potential employees of today’s marketplace.  What are the emerging trends in candidate background screening among those affected by this recession?

The job market in Canada has changed significantly since the recession hit in September of 2008. The Canadian economy lost over 100,000 jobs in the first few months of the recession alone, and since that time watchful hiring managers have seen a stark rise in the number of red flags raised in their candidates’ background checks. This trend is expected to continue and means that hiring managers need to be extra diligent when it comes to pre-employment screening; now, more than ever, thoroughly screening potential employees is crucial. Organizations that utilize background checking services achieve a competitive advantage by avoiding poor hiring decisions, cutting costs, and averting liability issues.

David Dinesen President & CEO, BackCheck

In measuring the scope of the increase in red flags appearing in background checks, BackCheck audited half a million applicant background checks from six industries: Health Care, Logistics, Banking & Finance, Telecommunications, Retail and Energy & Utilities. Three periods were compared for this study. These periods were March to August 2008 – the time prior to the major headlines of banks failing, September 2008 to February 2009 – the time when businesses were shedding employees most dramatically, and March 2009 to August 2009 – the aftermath and beginning of the recovery.

In reviewing the data it became evident that a trend was emerging: the number of red flags revealed through criminal record checks, education verifications, credit checks, employment verifications and reference checks all began to increase in September 2008. This was a direct result of companies slowing down their hiring – applicants were facing a much more competitive job market and were resorting to bolstering their resumes to gain employment.

The most dramatic increases in red flags within the five screening services audited were seen in the reference checks and employment verification services. Overall, since September 2008, red flags have increased by 35% in both areas. These flags are raised when the information provided by the candidate is cross-referenced against the information provided by the reference during the reference interview, and it does not match. This indicates that candidates believe that the possible benefits gained through falsifying their resumes far outweigh the risk of being caught. It also strengthens our belief that most applicants believe that no one will actually conduct checks on their past.

With the onset of the recession there was an 8% increase in the overall number of applicants possessing criminal records. Some industries saw a much more drastic increase: one of our telecommunications clients saw a 42% increase in the number of applicants with criminal records, while every major retail client experienced an increase in red flags associated with their applicants’ criminal history. This sharp rise indicates that as labour intensive sectors went out of business or downsized, their past employees, many of whom had criminal histories, moved to recession-proof sectors in which pre-employment screening is commonplace.

Education verification red flags increased by 20% beginning in September 2008, and have continued to rise another 4% since March 2009. This increase was most apparent in the energy and utilities sector, with one energy producer experiencing a 72% increase in the number of red flags associated with education claims. This trend, coupled with the fact that diploma mills have made it increasingly easy for applicants to bolster their education claims, makes it essential that hiring managers conduct education verifications on all candidates.

In the banking and finance sector, many of our clients conduct credit checks on their applicants as part of their screening process. Red flags have increased by 13% over the span of the three periods analyzed. Candidates with a history of poor credit or bankruptcy are ill suited to serve in positions in which they are given access to company funds, as they may endanger the company through mismanagement of these funds. Further, the company is putting its reputation at risk if they allow these employees to gain access to their clients’ funds.

Until the emergence of a stable economy, and indeed beyond that time, candidates will continue to lie about their pasts, try to hide their criminal histories, and overstate or fabricate their qualifications. The only way to protect your organization is by implementing a thorough pre-employment screening program. We want to believe that everyone is who they say they are, and that people are good, honest and reliable. Sadly, the data just doesn’t support that assumption.

The above information has been provided by Dave Dinesen, President & CEO, BackCheck. He can be contacted at dave@backcheck.net.


Passing the Baton
TRANSITIONING FROM CO-WORKER TO SUPERVISOR

Q: I have just been promoted to the position of manager. While this is an exciting career opportunity, I am struggling to manage my relationships with former colleagues and team members who now report to me. Is it possible to maintain my previous relationships while at the same time establishing my role as manager?

This type of change is consistent with the challenges that you raised in your question. The transition from being “one of the team” to “leading the team” can be a rocky one. Your pre-existing relationships with team members will likely benefit you in many ways. For example, you have established more than a degree of trust; you have an awareness of their working styles and talents and have gained previous experience in collaborating with the players. In addition, working on the front line has provided you with insight and knowledge that is useful to leaders. On the other hand, not all colleagues welcome being directed by a former co-worker. You may find that in some circumstances your efforts might be championed by the team members and on other occasions you face resistance. Helping the team members’ transition is very important. One strategy that is helpful is to first ensure that your new role is not only communicated to the team, but is validated with the team.

Clarity is very important; team members must understand your new role, see that this role is supported by your leader and gain a sense of how you will be proceeding. Be prepared for some role confusion initially and plan for how you will manage this in a way that provides clarity and sustains (or better yet enhances) relationships. Many new managers find it helpful to meet with the team, followed by individual meetings with each employee, in the early days of the role transition. These meetings provide an opportunity to develop a new type of relationship with the team members, address any issues at the earliest point in time and support the transition.

It is also very important to develop, communicate (and communicate some more) clear expectations. There may be an underlying expectation that you will be lenient, make exceptions and be overly flexible in your new role, because of the pre-existing relationships. When roles and responsibilities are understood, expectations are clearly communicated and a plan to follow up and monitor team performance is established, it is more likely that the transition will be smoother.

The previous points represent strategies to deal with colleagues however, we must not forget that it is important for you to seek support, guidance and mentoring to help you transition into this role. We have often seen newly promoted leaders struggle to separate themselves from their previous role (one of the team) to their new role (leading the team). One common mistake is that individuals often think the transition will be an easy one, because of the pre-existing relationships, familiarity with the team and a thorough knowledge of the work. In other situations, individuals have found that it feels like they have their feet in two worlds- doing the work and supervising the work. It is important to find an effective way to transition out of your old role so that your new role will have its place.

In the event that misunderstandings, issues and conflicts arise, it is essential that these be addressed at the earliest point in time. It is important to recognize that this conversation will likely seem different than in past because your role is different now.

As a manager, you might feel that you struggle finding the time to maintain your technical expertise as well as develop leadership skills. This transition will be difficult, it may mean that you are now giving up tasks and functions in which you are highly skilled, competent and enjoy. There will be new functions that will involve a learning curve as well as the elimination of tasks that are no longer part of your new role. Your primary role is now one of leadership and that’s where you should invest your learning time. I know this is difficult, particularly if you feel your promotion was due in part to your technical knowledge. You will be developing new “technical knowledge”, that is the “science of leadership”. Surround yourself with team members who will be compensated for their technical knowledge and look for opportunities to showcase their talents!

This article is co-written by Charmaine Hammond and Michèle Luit, ENFP2
Charmaine Hammond, Hammond Mediation & Consulting Group Inc. 780-464-3828 or charmaine.hammond@hammondgroup.biz. Michèle Luit, Workplace Solutions, 403-251-5625 or luitmich@hotmail.com


Emerging from the Downturn
RETAINING TALENT CAN BE CHALLENGING AS THE ECONOMY RECOVERS

Q: I know the recession is ‘officially’ over, but I’m hearing conflicting reports about the job market. Should I be worried about my staff? What can I do to reduce turnover?

In the past 18 months, employers have been able to relax when it comes to employee turnover: The dismal economy and sluggish job market meant that A-list, top performing employees just put their heads down and kept working, despite a lack of raises, promotions, or other rewards.

Paul Dodd President Head2Head

But now that the economy is picking up, these employees are starting to take another look at their options. (Remember, the recent recession mitigated the worst effects, but there’s still a talent crisis out there: As baby boomers continue to retire out of the workforce, many roles and professions continue to experience talent shortages, and as the economy improves, the effects will be more apparent.) Recruiting experts predict that in 2010, up to 30% of employees are vulnerable to voluntary turnover – in other words, they’re either actively looking or will be receptive when the next recruiter calls with an interesting opportunity.

Employee turnover can be expensive – replacing a junior admin can cost more than $15,000, and losing a senior employee can cost 3x their salary, when recruiting fees and lost productivity are included. So how can you ensure that you don’t lose all your top performers in 2010, even if you can’t give them big raises?

1.Make sure employees understand the business goals for 2010. Employees often start thinking about leaving when they feel uncertain about their future with the company. If you keep them in the loop about business goals, plans for 2010, and what they can expect from the year ahead, you reduce uncertainty. If they can expect raises if the company reaches X sales, tell them – now’s the time a little teamwork can make a big difference.

2.Improve employee engagement. When an employee starts feeling ‘disconnected’ from the larger organization, they become more interested in looking for other opportunities. By keeping them engaged - through better communication, team meetings, regular feedback – you’ll maintain their sense of commitment and connectedness to the organization.

3.(a) Make sure you know what they’re thinking. Many organizations are blindsided when great employees leave – they had no idea they were unhappy or vulnerable to another offer. Now is a good time to take employees for coffee and encourage a frank conversation about their role, their compensation, their goals and hopes for the future. You might also want to consider an internal satisfaction survey – it’ll help you identify potential vulnerabilities.

(b) This is no time to postpone their reviews! An employee – especially a top performer – who’s been waiting for months for their quarterly or annual review is an employee who feels frustrated, undervalued, and updating their LinkedIn profile in the hopes that a recruiter will notice them. Yes, we’re all busy – but conducting regularly scheduled reviews now is less time-consuming than replacing an employee later.

4.If you can’t give them a raise, maybe you can give them something else. The recession may be over, but for most organizations, money’s still tight. That doesn’t mean you can’t give your employees meaningful – and motivational – rewards. Extra vacation days, title bumps, and the ability to work from home are low-cost ways to keep employees happy without adding huge commitments to the bottom line. Don’t forget praise: Positive feedback, a $50 gift certificate to say ‘thanks for the hard work’, and public recognition of a job well done is the kind of thing often cited as far more important than a big raise.

5.Consider a ‘giving back’ initiative. Increasingly, data suggests that grassroots corporate philanthropy has a significant effect on reducing employee turnover – people like to work for organizations which reflect their personal values. Establishing a program which allows employees time off for volunteer work or supports philanthropic efforts in other ways may help keep employee satisfaction high, which ultimately reduces turnover.

6.Give them an interesting, challenging project to lead. Google encourages all employees to spend 20% of their time on ‘innovation’ – coming up with new ideas and leading teams to bring them to fruition – and many new hires say this was a key factor in choosing to work there. Every organization has projects that have been on the back burners for months; good ideas that no one has yet made time for or made a priority. Letting juniors or under-challenged employees lead (and take the credit for) these projects can make them feel engaged, responsible and valued – all of which make them less likely to look for another job.


Paul Dodd is the President of Head2Head (www.head2head.ca), a company that specializes in delivering innovative recruiting solutions by bringing bottom-line thinking to clients' HR and recruiting functions. Paul can be reached at 416-440-2030.