Gruntled Employees

Shaking the trees

First a note: It's a standard trick in the blogosphere that you can cover up your inexcusable failure to post for ... well ... a while (what do you mean I missed November?) by doing a handy site redesign. Thus the new site design. In truth, the standard TypePad theme that this blog wore for more than a year was getting a little threadbare. It was time for something a little cleaner and more ... gruntled. (OK, no more ellipses.) That said, you can expect some tweaking over the next few weeks. As always, I appreciate your feedback. And if you're reading this by email or RSS reader, click here to see the new design.

Now the real post:

We're hiring another lawyer at Shepherd Law Group right now, so we've been conducting interviews and meeting a lot of potential new associates. Which means shaking a lot of hands. Some shake well, and some shake less well. Turns out there's a skill to it. Maybe even a science.

As reported in BusinessWeek recently, a firm handshake is a sign of "social dominance." Psychologist Gordon Gallup found that men with firm handshakes were more likely to behave aggressively. They were also more likely to have broad shoulders and narrow hips, and they were 10% more promiscuous. (Unclear whether that was because of the shoulder-hip thing, the aggressiveness thing, or the handshake thing.)

Gallup's study found no correlation between women's handshakes and either their "behavioral competitiveness" or body type.

Gallup hails from the State University of New York at Albany, which you probably call "SUNY Albany" but which apparently prefers "UAlbany" as its "officially designated informal name," because nobody told them that you can't officially designate an informal anything. In the money quote from the university's press release, Gallup makes a connection between handshakes and our evolution from tree-climbing monkeys:

Unique to the evolutionary history of humans and all primates were complex adaptations to life in the trees. As a result, handgrip strength was featured prominently in patterns of brachiating, or moving through the canopy, as well as in minimizing the chances of falling.

Uh, okay. The press release is here, and the full report (which only uses the word "brachiation" once) is here. (It's a form of arboreal locomotion, in case you were wondering.)

Coincidentally, and more relevantly to the workplace, The Boston Globe recently reviewed a new book by Tonya Reiman called The Power of Body Language. Apparently, the book has a lot say about handshakes. I haven't read it yet, but see this from Vivianne Rodrigues's review:

The handshake is one of the most critical opportunities to establish rapport and might be as crucial for job applicants as a strong résumé, Reiman said.

Her book lists no less than 12 "wrong" ways to shake hands including the submissive handshake, the overly affectionate, the sweaty, the forward lean, but none as dreaded and as dreadful as the limp handshake.

"The limp handshake feels like you're holding a lump of room-temperature chicken," she said.

The way that will work with any person in any situation, according to Reiman, is to go toward the person, lean slightly forward, look them in the eye, extend the right hand, and simultaneously introduce yourself. The whole handshake should not last more than two to three seconds.

Sounds about right. So my question for you HR pros and managers: are your employees shaking hands properly, or they falling out of the trees (so to speak)?

Your employees are the sizzle

My wife and I went out to dinner Friday night at a new restaurant in Boston called KO Prime. Its temporary website describes it as "a modern, creative interpretation of a traditional steakhouse with an energetic, sexy and chic atmosphere." As intimidating as that sounded, we thought we'd give it a try.

We showed up around eight o'clock without reservations. Although it was busy, the hostess was friendly and accommodating and sat us immediately. A busboy greeted us right away and quickly delivered water and bread. Then our waiter, Josh, introduced himself and asked if we'd been there before. Everyone was friendly and pleasant, but not in an in-your-face way.

Now if you don't already know it, Boston is a baseball town. The Red Sox have the best record in the majors and are on their way to their first division title since 1995. KO Prime's bar is separated from the dining room by a frosted-glass wall, but from where I was sitting, I could just see part of the bar's television. The Sox-Orioles game was on (with the sound off). I happened to look up as the benches cleared, and like any true Sox fan, I needed to know what was happening. With a sheepish apology to my wife, I got up and hurried over to the bar.

Everyone in the bar was staring at the screen, trying to figure out what was happening without the benefit of audio. (As I later learned, Baltimore pitcher Daniel Cabrera, agitated after Coco Crisp caused him to balk in a run, threw behind Dustin Pedroia, clearing the benches. No punches were thrown, Cabrera was tossed after throwing a complete nutty, and the game resumed.) This took at least five minutes to sort out. I said to the guy standing next to me that my wife was probably tiring of my having left her alone at the table. (Understandably.)

Turns out the guy was Phil Gerster, the restaurant manager. Without missing a beat, he called over to the bartender and asked for a glass of Champagne, then hand-delivered it to my wife (who was amused and mollified).

We chatted with Phil for a few minutes, and learned that he had been working in restaurants his whole life, starting out as a dishwasher. When we mentioned that everyone had been providing us excellent service, Phil gave us his management theory (I'm paraphrasing here):

It's all about the service. It doesn't matter if you have the best food in the world. If the people serving you are jerks, that's what you're going to remember. And you're not going to come back.

And Phil is absolutely right. Our food was great. But what will bring us back in the future — and more importantly, what will lead us to tell others about it (and to write this post), was the friendly, thoughtful service we received. In addition to Phil's marriage-salvaging Champagne, we had:

• Josh, the waiter, unsolicitedly opening a new bottle of great Shiraz to give me a taste (at no charge) when I happened to mention that I usually drank that variety of wine. (The Malbec he recommended with my ribeye, a Navarro Correas Alegoria 2004, was amazing.)
• The busboy quipping in accented English that the aforementioned ribeye — which had a 14-inch bone sticking out of it — looked like something out of "The Flintstones."
• The hostess, while we were all watching the Red Sox nonfisticuffs and some new guests arrived, telling me that she would rather see what happened with the game. (She was kidding, and she greeted the guests just as warmly as she'd greeted us.)

You've heard the marketing expression "Sell the sizzle, not the steak." It applies to the workplace, too. While your company's product or service is the steak, your employees are the sizzle that will keep people coming back. Keep that in mind when you're hiring employees.

So you want to be a barista ...

So it's Sunday and it's hot and I'm taking the family to the local pool. But I need my caffeine fix, and I'm trying to figure out the mechanics of sneaking a triple venti latte into the pool area without getting caught. I decide it's worth the risk, so we stop at the nearby Starbucks en route to the pool.

While I'm waiting for the barista to make my order, I notice a small table with a little sign and a pad of employment applications. As an employment lawyer, I'm always interested to see how businesses go about hiring new employees. I'm curious, especially with national employers, to see how many violations of state law (in my case, Massachusetts) the application has. I counted just two.

Now don't get me wrong. My purpose here is not to call out Starbucks, which is by all accounts a first-rate employer. Every state has slightly different employment laws, and a company that operates in multiple states has to pay attention to all of them. It's an enormous pain to have a different application for every state a company does business in. Many multistate employers try to synthesize the laws of their different states, and often include footnotes with state-required language. (Starbucks included language for California, Maryland, and — yes — Massachusetts. Just not all of it.)

But here's what the application does right. More than right. Better than just about every other application form I've ever read.

After asking all the usual job-application questions, it asks the following:

• Have you ever visited a Starbucks Coffee location? Where? Describe your experience.
• What do you like about coffee?
• Why would you like to work for Starbucks Coffee Company?
• Describe a specific situation where you have provided excellent customer service in your most recent position. Why was this effective?

Now the first and third questions are pretty basic. They probably get a lot of lame answers, which help weed out the barista pretenders.

But the second question and the fourth question are brilliant, and should be emulated by all employers.

Starbucks is all about two things: coffee and customer service. To attract the best employees, Starbucks looks to hire people who get coffee and get customer service. Judging from the top-quality service I get every day at the Starbucks near my office (the School Street store in Boston) — where Gregg, Meg, Theresa, Roger, and the other "partners" (as the company calls all its employees) make an extra effort to remember my name and my order — it seems to be working.

What questions can your company put on its job applications to make sure you attract employees who get what your company is all about?

(As for the minor Massachusetts statutory problems: give me a call, Starbucks, and I'll tell you what they are. On the house.)

Mandatory arbitration: stupid employer trick

A growing number of employers are making employees sign agreements that require any disputes to be heard by an arbitrator instead of a court. (Usually the agreements say "any and all" disputes, even though once you say any, you've got all covered. Lawyers: "Why use one (1) word when you can use three (3)?" But I digress.)

The thinking behind mandatory arbitration is that it is faster and cheaper. The unspoken thinking behind it, especially for large employers, is that any given arbitrator is more likely to have future cases with the employer than with the particular employee, and the arbitrator wants the large employer to use him or her again in the future. I don't buy that, because it suggests that arbitrators will subvert a case to curry favor with a large employer. I believe most arbitrators are ethical, and would never do that.

But arbitration is not good for employers. (By the way, I'm only talking about employment arbitration — not labor arbitration involving unions, which is a whole 'nother kettle of fish.) And there are three reasons why:

1. The parties choose the arbitrator.
   But Jay, you say, this sounds like a good thing. It's not like you pick your judge in a court case. Isn't it good to have some control? You might think, and employers often do. But it's not. Here's why:
   
   An arbitrator only gets a case when both sides agree to choose that arbitrator. (Well, duh, you say.) The way it works is that the American Arbitration Association or whatever group you're using gives you a list of a dozen or more available arbitrators. The company's lawyer and the employee's lawyer then pick a few acceptable choices from the list. When both sides find one they agree on, bingo — you got yourself an arbitrator.
   
   And how does the lawyer choose? Based on his or her own experience with the arbitrators, the experience of friends and colleagues, and the arbitrators' general reputation. And now we come to the problem:
   
   If an arbitrator has a reputation as being more employee friendly than employer friendly, I'm not going to pick him or her. (Again: duh.) And the converse is true, too. So an arbitrator has a built-in self-interest to come down the middle — to rule in favor of management and employees in roughly equal proportions. And that's the problem, because employees don't normally win half of the cases filed. For example, at the Massachusetts Commission Against Discrimination, employees win probable cause — that is, they get to proceed with their cases —  only about five to fifteen percent of the time.
   
   If an arbitrator was known to come out in favor of the employee only five to fifteen percent of the time, do you think any plaintiff's lawyer would agree to pick that arbitrator?
   
   The only way to fix this problem is to remove the parties' ability to choose the arbitrator. Until that happens, avoid arbitration.
   
   
2. There are no rules of evidence or binding precedent.
   Some people incorrectly think that this streamlines the process, making an arbitration less complicated and expensive than a court case. But rules of evidence — while sometimes pesky and seemingly arcane — are designed to increase the chances that testimony and evidence reflect the truth. Hearsay rules, the bane of second-year law students and many litigators, were designed to weed out made-up testimony.
   
   And binding precedent — the notion that earlier cases with greater authority control the current case — means that the parties know the rules beforehand. Without needing to follow precedent, arbitrators are free to come up with their own rules. While arbitrators universally try to be fair, their rulings can sometimes be ... well ... arbitrary.
   
   
3. Arbitral rulings are nearly impossible to overturn.
   Winning an appeal in court is very difficult. But short of misconduct or flagrant bias on the part of an arbitrator, it is next to impossible to get a court to overturn the arbitrator's decision.
   
   Just last week, Ross Kerber of The Boston Globe reported on MassMutual's attempt to get a court to overturn an unfavorable arbitral ruling. The story reports that the arbitration panel  had concluded that ousted CEO Robert J. O'Connell had been unjustly terminated and that he was entitled to $50 million in severance benefits, even though it found that he had had affairs with two women (including the company's general counsel). The company sued in Suffolk Superior Court to have the panel's decision overturned. But the court declined, holding that there was "no evidence of any failings in the procedural aspects of the hearings." The court did not confirm that O'Connell should have won the arbitration; only that he did win.
   
   The story reported that the company planned to appeal further. Good luck with that.

Mandatory arbitration of employment might sound like a good idea to employers. It's not. If you want to save money on employment disputes, consider mediation — a much more valuable ADR (alternative dispute resolution) technique.

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A bit of language trivia: The expression "a whole nother" (used above referring to the fish kettle) is an example of tmesis. It's like they have a name for everything.

Issues raised by "lift outs"

Robert Weisman of The Boston Globe had a nice piece called "The business of lift outs," describing some of the problems companies face when they "lift out" a team of workers intact from another company. Rob describes lift outs thus:

The practice of scooping up talented groups of workers, once relatively rare and frowned upon as poaching, has become far more common and respectable. Headhunters have given it a more upscale name — "lift outs" — and companies in a range of sectors, from finance and technology, to healthcare and professional services, have embraced it as the quickest way to gain a foothold in a new market or region.

Although the term hasn't really gone mainstream yet, the phenomenon is quite common. At our firm, we deal with lift outs (or, if we're representing the former employer, "employee raiding") all the time. Rob called me to talk about some of the problems the company doing the lifting might face, and we chatted about litigation and corporate-culture problems:

But lift outs don't always go smoothly. Litigation is a popular option for jilted employers, especially at technology and life sciences companies where noncompete and nonsolicitation contracts are commonplace. Whether such contracts can be enforced hinges on many factors, including the type of new jobs the team is assuming, how employees were approached by the team leader, whether they seek to capitalize on customer relationships developed on the payroll of their former companies, and the judge or jurisdiction handling a lawsuit.

Even in the absence of legal challenges, lift outs can backfire. "People at a law firm can resent it if they're getting ready to become partner and new people are brought in above them," said Jay Shepherd, a Boston employment lawyer. "And while the team might work well together, they may not fit in well with the culture of the new firm."

The noncompete lawsuits that often result from lift outs are the more obvious and overtly expensive side effect. But the lifting company should not underestimate the integration problems that often arise when a clique of people — often receiving some special treatment — are suddenly thrust together with employees who've been around a lot longer. It might seem junior high schoolish, but the costs of the new kids not getting along with the old ones could end up being more severe than the expense of noncompete litigation.

Think hard before you lift out.

Job references by MySpace

How many of you managers, HR pros, and others responsible for hiring are using MySpace as part of your hiring process? And if you aren't, why not?

Crib sheet for those of us over 30: The MySpace phenomenon has changed the way many people under 30 interact and express themselves. Membership is free and it takes just a few minutes to set up a homepage. Members then adorn their pages with photos, music, artwork, really bad poetry, and solicitations for new "friendships." It seems to be an innovative launchpad for musicians to generate some buzz for their garage bands, and it's an easy way for twentysomethings to meet other twentysomethings who share their interests.

More and more, employers are checking out the MySpace pages of prospective employees as part of their selection process. (See here for a Boston Globe article last March by the always-excellent Diane Lewis on the subject, and here for another great one in the Wall Street Journal by Vauhini Vara.) And why wouldn't you? The pages are public — at least within the MySpace community, to which entry is free and easy. This is not the same as a background or credit or criminal-records check; the only information on a person's MySpace page is whatever he or she chose to put there for the world to see.

And what will you find?

• Many references to bands.
• Many references to drinking.
• Really dumb one-liners.
• More references to drinking.
• Friends of members telling those members how hot they look.
• And — sometimes — members complaining about their past or current jobs.

If I'm thinking of hiring someone, I'd like to know what they (publicly) think of their current job. It may be my company they're complaining about next.

Is it an invasion of their privacy, particularly if they don't expect us to look at their pages? No. If they put the information out in the public domain, they expect it to be read. And they can't control who's going to read it, unless they "privatize" their pages. At best, it shows poor judgment.

One word of caution: you might find information on their page that causes you to learn something about them that might be appropriate for them to share socially but not professionally. Examples include their sexual orientation, their religious beliefs, or their eating disorders or other mental issues. Do not use this information in your hiring decision, or you could be facing a discrimination lawsuit.

And a lot of bad publicity on the prospect's MySpace page.

Liar, liar, your résumé's on fire

The Boston Globe's terrific workplace reporter Diane E. Lewis noted in today's paper a recent survey called "Résumé Lies." CareerBuilder.com polled 2,200 employees and over 1,000 hiring managers on the subject of fibbing on your c.v. Fifty-seven percent of the hiring managers reported that they've caught lies on applicants' résumés. Of those lie detectors (my lame-but-unavoidable pun, not Diane's), 93% chose not to hire the liar (also my lame rhyme — sorry).

Ironically, only five percent of the workers polled admitted to writing résumé fiction. So either all this lying is being done by a select few ... or people who lie on their résumés tend to lie on surveys, too.

Ten mistakes employers make when using noncompetes

1. Making every employee — from the CEO to the mailroom guy — sign a noncompete.
2. Giving an existing employee a new noncompete without giving him or her something else in exchange for it.
3. Using a noncompete to protect anything other than trade secrets, confidential business information, and customer goodwill.
4. Misunderstanding what the heck "goodwill" is. (Hint: it's not your brand image; it's the customer relationships your employee is paid to maintain.)
5. Trying to use a noncompete in California.
6. Using noncompete enforcement as a strategy to scare employees out of leaving your company.
7. Failing to update a noncompete when the employee's job substantially changes.
8. Hoping that a court will scale back (but otherwise enforce) your overbroad noncompete.
9. Waiting too long to go to court to enforce a breached noncompete.
10. Trying to use a noncompete to protect against ordinary competition (as opposed to unfair competition).