Due to having 4 federal cases, 2 state cases & 3 union negotiations & related labor-management matters ongoing at the same time & most nearing some form of resolution, my posting this Spring & Summer has been sporadic.

On the other hand, union activity seems to be increasing among small businesses in the private sector.  I’m not sure if this is due unions’ believing that desperate times call for desperate measures, or if it’s because management is intensifying efforts to combat union activity because of the high & rising pension & healthcare costs associated with union collective bargaining agreements. Nevertheless, there’s been a definite increase in union activity among private sector small businesses. As troubling as this is for business, this has been great for the government (justifies regulatory jobs) & practitioners like me.

Moreover, it’s worthwhile to note that for the first time in U.S. history, the number of unionized employees in the public sector now exceeds the number of unionized employees in the private sector. Glad to see that government employees are protected from the abuses of their employers (us).

Furthermore, I’ve seen an increase in self-represented employees and former employees filing lawsuits & other charges against businesses. Again, when the economy is bad, and people are desperate, they’ll do what they have to do to make ends meet, with or without legal representation.

For more information about what’s happening in labor & employment law & human resources, check out my LinkedIn group, Charles Krugel’s Labor & Employment Law & Human Resources Practices Group.

On November 19, 2008, I was interviewed on Blog Talk Radio’s show the Recruiting Animal.

The Recruiting Animal interviewed me on a number of labor & employment law related topics germane to recruiters.  One topic seems to have created a MINOR controversy in the blogosphere.

The issue of ruse calling or “rusing” came up.  In the context of recruiting, this is when an HR person or recruiter (usually an external or 3^rd party person) reaches a company “gatekeeper” (i.e., someone who protects or guards what information is distributed) & pretends to be someone else in order to get past the gatekeeper.  By doing this, the recruiter hopes to get to the person in charge of hiring, or who has the most information about the position, so that they can bypass bureaucracy & get an advantage over other recruiters.  The gatekeeper is usually an administrative assistant or someone else designated to screen phone calls.  Specifically, I was asked whether rusing is legal.

Generally, under federal law it’s not civilly or criminally illegal.  I’ve seen blog posts from professionals, & even another management side labor & employment attorney, saying that rusing violates federal law such as Federal Trade Commission rules.  Others argue that it violates the Uniform Trade Secret Act, but this isn’t federal law.  It’s a doctrine which can be adopted by the states; i.e., unless codified as law, it’s persuasive but not mandatory as an authority.

As best as I can tell rusing only violates FTC law when the recruiter is lying for the purpose of obtaining something of concrete value such as money, trade secrets or inside information in order to gain a direct pecuniary advantage.  There’s potential criminal and civil liability with these types of thefts.  Still, most trade secret & intellectual property law & doctrine doesn’t address the type of conduct I’m talking about here.

My contention is that rusing for the purpose of getting past a gatekeeper to get the real person in charge, & then disclosing that the purpose of your call is for information regarding an open position isn’t the same as what’s prohibited by the FTC or other laws.  Again, it’s worth repeating that there are no other U.S. laws in existence, or even proposed, which addresses rusing in the aforementioned recruiting context.

Now if you change the context to obtaining information regarding the separation of a C-level executive or director that has a substantial impact on that business’ operations, then this MIGHT be illegal under civil law, maybe criminal law too (though that’s a weaker argument and probably only a misdemeanor at best).  Intent to damage the company or someone else’s reputation, & the nature of what’s communicated, could factor into whether or not someone is criminally charged, & any actual resulting damage could factor into civil liability.

Also to be considered is whether the information sought is considered very valuable by the company it’s sought from.  More specifically, if a company has gone to great lengths to protect the information solicited, either through technology, policy, practice or binding agreements, then that might make a stronger case for recognizing it as being legally protected property.

If you change the context to an in-house recruiter for a company trying to steal employees from a competitor, this MIGHT be illegal under state civil law dealing with trade secrets (unlikely illegal per criminal law) or some sort of tortious interference with business, which is more likely a common law argument (i.e., violates case law not statute).  The nature of our legal system dictates that actual damage & intent factor into whether it’s illegal per civil law.  It probably won’t be illegal per criminal law, and if it is, it will probably be a misdemeanor at best.

Ultimately, all the public can do is debate this issue.  It will take at least one court case to start defining in a more definite manner whether or not ruse calling or rusing is illegal in either criminal or civil courts.

If I’m wrong, please correct me.  But so far, all of the research I’ve done, and all of the comments from those who contend that it violates federal law have been unable to point out the specific law that’s violated.  Additionally, relative to state law, I can’t find anything on that either.

This post was contributed by Heather Johnson, who writes on the subject of video production manager.  This is Heather’s second post to my site. Her first article, regarding employee complaints, can be found here.  She invites your feedback at heatherjohnson2323@gmail.com.  Some of my own comments follow Heather’s article. Thanks again Heather.

It’s not something that organizations, particularly their HR departments, are too enthusiastic about, but exit interviews are a rich source of information that companies can use positively as they grow in age and experience. Exit interviews, if not framed and structured properly, end up either being a useless exercise or one that leaves a bitter taste in the mouth with unnecessary recriminations and blame. Here are a few guidelines for HR managers to follow when conducting exit interviews:

• The best exit interviews are those conducted face to face, preferably by someone who is not known to the employee, either an outsider or someone from another department. Direct supervisors or managers are the worst choices to hold these interviews. If an employee is not too keen on a direct meeting, a questionnaire could be used to procure the necessary information.

• A useful exit interview must capture employees’ honest opinion of the company, their reasons for leaving, their suggestions for improvement within the company, any problems they may have had within the company, and their views on compensation and job satisfaction. It must also focus on retrieving knowledge specific and relevant to the employee who is leaving, such as contacts and methods that could be used to find and train suitable replacements.

• Exit interviews are more suited to employees who are resigning or leaving the company on their own volition rather than for those who have been laid off or terminated on other grounds. The latter kind would not be too cooperative and the answers they provide may not be a true reflection of the work conditions that prevail in the organization.

• No employee should be forced to attend exit interviews – they must be completely voluntary. Employees must be informed about the purpose of the interview and asked if they would return to the company, if asked, at some future date.

• Exit interviews must not be undertaken as exercises either to defend the company’s policies and practices or to conduct a post mortem on the employee’s performance within the company. The interviewer must adopt a polite and courteous attitude towards the leaving employee, even if the parting of ways is not too amicable.

• The information one infers from an exit interview is most important to the company – allegations and allusions to personal attributes and characteristics do not help. What does make a difference are details that can help improve the company’s management practices and policies in a way to improve customer and employee retention.

Organizations would do well to assess the importance of conducting regular employee feedback sessions during the course of their employment rather than conduct exit interviews after they announce their resignation. While employees who are leaving tend to be more honest since they have nothing to lose by sucking up to their higher ups, anonymous questionnaires also help achieve the same result. At the end of the day though, a constant appraisal of the working atmosphere within the company will help in bringing down attrition rates considerably.

Chuck Krugel’s Comments:  Although exit interviews can provide useful information, and can ease the exit transition, I’m not familiar with research or studies that indicate any sort of cost versus benefit analysis of exit interviews.

Therefore, prior to implementation, I caution employers to determine the costs of conducting exit interviews, and to either research or analyze what types of questions and format of the exit interview will work best for them.  Additionally, if an employer decides to conduct these interviews, implement them across the board, and not on specific employee groups.  This may help to avoid disparate treatment or disparate impact claims.

In other words, in theory, exit interviews can be useful, in practice, pay attention to the what, why, how, when, etc.  Why spend time and money if you can’t clarify the costs and benefits?

My Saturday, 4/19/08, interview on Chicago’s Kennedy King College’s radio station, WKKC 89.3 FM, is now online. You can listen to it here.

During this 50-minute long interview, hosts Derek McNeal and Charles Young questioned me about general labor and employment law issues and, more specifically, handling EEOC charges.

This was my second interview on the show. My first Consumer Eye interview with Derek and Charles was on their June 7, 2007, show. That interview was also live and lasted for approximately 50 minutes. That interview wasn’t recorded.

Thanks to Derek, Charles, Stephen Anderson of Foreign Exchange Services and everyone at WKKC for the opportunity and recording.

This post was contributed by Heather Johnson, who is an industry critic on the subject of how to become a nurse. She invites your feedback at heatherjohnson2323@gmail.com. Additionally, some of my own comments follow her article. Thanks Heather!

6 steps to keep Employee Complaints from Escalating

If an employee is unhappy then the best thing you can do is let him or her vent about the issue that’s bugging them. The worst thing that can happen is that the employee lets the situation fester. This is when a simple problem can escalate to one on a much larger scale. Something that could have been kept in-house could lead to the employee seeking counsel if the issue is that important. There’s no way to prejudge how important something is to an individual until it’s too late. Follow these six steps to keep the employee happy and, in turn, your business running smoothly:

1. Let the employee come forward on his or her own. The employee m ay be embarrassed or extremely agitated about the situation.Accordingly, they may realize that they need time to assess their feelings. When they’re ready to discuss the problem meet with them behind closed doors for their privacy.

2. Consider the facts. Let the employee explain the situation. Take notes during the meeting. Your experience will allow you to separate the facts from the emotions that are sure to come into play.
3. Have the employee put it in writing. By having the employee write down his complaint the possibility for misunderstandings down the road will be drastically limited. Encourage the employee to do this and let him or her know that this standard procedure and in his or her best interest as the situation unfolds.
4. Investigate thoroughly. After the initial complaint has been lodged, talk to the employees being named in the complaint. Get their sides of the story in writing. During this process, take notes and consider just the facts as you weed out the emotions that will be present.
5. Ask for witnesses.If there are any witnesses available that can corroborate the complaint or dismiss the allegations talk with them as soon as possible. Again, ask for a written statement and take your own notes during the interview process.
6. Make the judgment on the facts. Once you’ve collected all the statements and can properly weigh the facts it’s time to levy a judgment. Try to avoid involving attorneys, but if it comes to that point act swiftly. Consider the ramifications for your company. If possible, seek a non-biased mediator to assist in the matter. This can alleviate the complainant’s fears that he is going to get snowballed in the matter and will make everyone feel better about the process.

Chuck Krugel’s comments: Relative to employee venting, an employer has to pay attention to when, where , to whomand why and employee vents. For example, if the employee just doesn’t like the employer, then it’s probably best to do that away from customers and other employees.

If the employer learns of a situation, not directly from the involved employees, but from a witness or other party, the employer might still be legally obligated to investigate and take corrective action. By not doing so, the employer may be exposing themselves to legal liability and the loss of money.

Additionally, it’s not possible to always get a complaint in writing from the employee or a written statement from a witness. Sometimes, the employer has to document a witness’ statement or a verbal complaint from an employee. This is especially true where the employee is unable to write or the employee doesn’t speak or write in English well.

Finally, with respect to fact gathering and checking, an employer isn’t required to prove something as a matter of fact in order to take action. An employer just has to be reasonably sure that something occurred; the employer isn’t legally required to prove as a matter of fact or even “beyond a reasonable doubt” that something occurred.