(This week we're bringing you a "Classic" Beacon Bulletin, worth a second look...)
In the news recently, there has been a lot of talk of employees' right to sue "bad bosses". The "bad boss" until now, has generally referred to management bullies whose goal has been to publicly humiliate the employee (e.g., having other employees, en masse during meetings, ridicule the substandard performance of the targeted employee, or taking that up a few notches to ordering the sub-achiever wear a clown hat or nose or some other such ridiculous gear). Obviously, the examples cited are not tolerated by a well run organization. But the lines of acceptable reprimands are seen to be fading as employee-rights organizations are now eyeing conditions such as stress-related health issues and coping malbehavior as a result of malicious management practices that are tolerated in the workplace. It is the responsibility of senior management to ensure proper intra-company management methods are in place but it is also prudent to proactively protect the company should it find just cause for an employee's termination.
BNI investigators have worked on numerous cases in which we were assigned to covertly observe employee and management workplace behavior. The eyes of an impartial party often register situations differently from those with a stake involved. This experience has allowed us to formulate the below checklist for deciding if it is time to terminate and if so, how to proceed.
Is It Time To Terminate?
1. Investigate. If you are considering firing a worker for misconduct, your first step is to investigate the incident. There is always the possibility, no matter how slim, that things are not as they appear to be. And the worker might have an explanation or reason for the misconduct that is not immediately apparent.
2. Check the files. Never proceed without reading the worker's personnel file. What you find -- and what you don't find -- can have important repercussions. For example, if you are trying to figure out whether to fire someone for persistent problems (poor attendance or performance, for example), you should find some indication in the file that the employee was informed of these issues and given an opportunity to improve. And you should look carefully for any evidence of an employment contract limiting your right to fire the worker at will.
3. Review your written policies. Read through your employee handbook, personnel manual, and/or any other written policies that have been in effect during the worker's tenure. Do they give the worker sufficient notice that his or her conduct could result in getting fired? If you have a progressive discipline policy, have you followed it? Do your policies place any limitations on your right to fire workers at will?
4. Consider what the worker has been told. What you say to a employee can be just as important as your written communications and policies. Have you -- or anyone in authority at your company -- said anything that contradicts your written policies and the documents in the personnel file? For example, have you led the worker to believe that he or she would not be fired despite performance or other problems? Has anyone made statements to the employee that could come back to haunt you in a lawsuit -- for example, statements that could be construed as discriminatory or harassing?
5. Compare how you've treated others. A fired employee's most effective argument to a jury is that you've acted unfairly, by treating the employee differently from others who have been in the same position. If you have always treated your employees by the same rules, you don't have to worry. However, if you've been inconsistent, you should have a valid reason for treating workers differently -- for example, one worker's performance problems lasted longer than another's, or one worker's misconduct was more serious.
6. Consider context. Even if you have followed your policies, protected your right to fire at will, and been consistent with your workers, one shouldn't ignore the surrounding circumstances. Consider the timing of your firing decision -- for example, if you terminate an employee who recently complained of sexual harassment, can that be perceived as retaliatory? Also look at how this termination will look in light of your other firing decisions. If you see a pattern -- for example, that only women or older workers are being fired, that may allow for a claim.
7. Look at options. If you're considering firing a worker for persistent problems, you've probably already tried disciplinary measures short of termination. Even so, now is a good time to revisit the issue. Do you think that the employee will be able and willing to improve? If so, a lesser disciplinary measure might be effective -- particularly if you have made some managerial missteps in your dealings with the worker. However, will making an exception or bending the rules for this worker will seem unfair to others? The full picture needs to be taken into consideration. Also, if there has been a management lapse of careful notation in the employee's employment file, correct it immediately. (We are not suggesting suddenly noting past incidents, that will only work in the terminated employee's favor. Just be, or have your managers become, more diligent in record keeping.)
8. Get a second opinion. If possible, have another person from within your company review your decision to terminate. This will help you make sure that your decision is reasonable, legitimate, and well-supported by the evidence. If the reviewer finds that your decision could be challenged, use his or her comments to help you figure out how you can either salvage the employment relationship or properly document and support your decision.
9. Bring in legal counsel, if necessary. If you are faced with a close call of any kind -- or if you are unsure whether your decision will hold up in court -- talk to an employment lawyer before you take action. An outside review by an experienced employment-issues lawyer can save considerable time and money in the long run.
10. Document your decision. If you decide to fire a worker after considering all the angles, you should document your decision in an internal memorandum to the worker's file. Keep it short and sweet -- describe the reasons why you decided to fire the worker, any previous efforts to help the worker improve, and the dates of any previous disciplinary meetings and warnings.
While conscious of the whistle blower laws and or discriminatory hiring practices, an employer may consider an online search for prior lawsuits at appropriate recording sites (e.g. e-law.com).
(We don't suggest employing the driving techniques depicted in the above video, but it does serve as a tongue in cheek reminder that driving practices certainly can differ from country to country. There are so many things wrong in this video re: the driving that it feels like you're viewing a live action picture puzzle!)
Many of our readers may recall that several months ago, our newest partner, Richard J. Henderson, Sr. (ret., NPYD, Detective) joined BNI. Shortly thereafter, we were discussing overseas travel (sorting out our summer schedules) and Rich mentioned this week's subject matter: online businesses selling International Driver's Permits (IDPs). Rich informed me that there were actually only two organizations, authorized by the US State Department, to sell IDPs.
With many people still looking forward to vacation and college students interning abroad, we feel it timely to focus this week's Bulletin on the secure way to obtain your IDP.
Below is a very recent article from AAA; one of the two federally authorized IDP issuers:
WASHINGTON, Aug. 7 /PRNewswire-USNewswire/ -- AAA is urging U.S. residents who plan to drive while traveling abroad to avoid purchasing fraudulent International Driving Permits (IDP), especially over the Internet.
Authentic IDPs and Inter-American Driving Permits (IADPs) are official translations of a motorist's driver's license for use when driving in another country. AAA is one of just two organizations authorized by the U.S. State Department to sell the documents to valid U.S. driver's license holders (the American Automobile Touring Alliance is the other). An IDP costs $15 from AAA and can be purchased by anyone 18 years or older who presents a valid U.S. driver's license at any of the more than 1,100 AAA offices around the country, or by mail following instructions at www.AAA.com/vacation/idpc.html.
"A fraudulent IDP or IADP could result in legal problems or travel delays if a person is detained while using it to drive in a foreign country," said Doug Bower, vice president of Travel for AAA. "People who buy them from fraudulent online brokers and spam e-mailers are wasting their money."
The Federal Trade Commission has previously alerted consumers to these scams, while putting the offending marketers on notice that this conduct won't be tolerated. According to AAA, these scams can lead innocent travelers to spend hundreds of dollars for false documents. The FTC's consumer alert on IDPs can be found on its web site at www.ftc.gov/bcp/conline/pubs/alerts/idpalrt.shtm.
As North America's largest motoring and leisure travel organization, AAA provides more than 51 million members with travel, insurance, financial and automotive-related services. Since its founding in 1902, the not-for-profit, fully tax-paying AAA has been a leader and advocate for the safety and security of all travelers. AAA clubs can be visited on the Internet at www.AAA.com
LockPicking Courses OnLine - From Your House to the White House
As the above video clearly displays, opening any locked door, is very easy - even for a non-professional lock picker. The Slate article in this Bulletin reports how popular lockpicking (known as locksport) has now become - with training videos and clubs - springing up all over the nation.
Pick a Lock, Any Lock YouTube makes it easy to learn the finer points of breaking and entering—and locksmiths aren't happy. Slate Posted Wednesday, July 23, 2008, at 3:39 PM ET
Locksmiths and lock manufactures have found themselves in a jam. The skills of their trade, passed down through generations under conditions of occult secrecy, have been jimmied open online (subscription required). The professionals are crying foul over enthusiasts of "locksport"—amateur lock pickers who congregate on the Web to discuss how to pick locks. The amateurs do this for fun, not mischief, they say; there's a sublime thrill in charming a deadbolt to turn your way. And they argue that by finding and publishing flaws in some of the most popular locks on the market—from the locks you've got on your front door to those the president has on his—they're forcing improvements in security. Lock professionals say the opposite is true: that in showing people how to pick locks, hobbyists are swinging your doors wide open to criminals.
This is a familiar tale. Its plot points echo those of many recent computer-security debates. An entrenched community that's used to working in secret suddenly sees its entire business upended by the secrecy-busting ways of the Internet. It's a fate suffered by voting machine firms, software companies, and ATM manufacturers. Now it's happening to locksmiths and lockmakers, too.
But there are a few interesting wrinkles to the skirmish between amateur and professional lock wranglers. For one thing, unlike security-services company Diebold, the locksmiths and lockmakers aren't just fighting a new crop of activists. They're fighting a new subculture—really, a new sport.
All of us are trying to stay one step ahead regarding especially our private security. No doubt, techonology is giving us a run, but it still ultimately comes down to the simple things: having a good alarm system in place, dead bolts and sharp-eyed neighbors.
Given the recent record-breaking temperatures here in NY, we think it a timely entry to re-issue our pool safety Bulletin from last season, with several added updates.
According to data (compiled from various federal agencies and industry monitoring organizations), in a given year, there is one drowning of a child for every 11,000 residential pools in the United States. (In a country with 6 million pools, this means that roughly 550 children under the age of ten drown each year.)
Below please find the full NYDOS amended text (12/14/2006) version of NYCRR Title 19 re: pool alarms. Feel welcome to contact BNI for our post pool/water-event checklist. There are often many variables involved in pool-related incidents. Our checklist has been developed over more than a decade of conducting these types of investigations.
TITLE 19 (NYCRR)
CHAPTER XXXIII - STATE FIRE PREVENTION & BUILDING CODE COUNCIL
SUBCHAPTER A - UNIFORM FIRE PREVENTION & BUILDING CODE
1221.3. Swimming pool alarms. [amended text 12/14/2006]
(a) Purpose. Paragraph (b) of subdivision (14) of section 378 of the Executive Law, as added by Chapter 450 of the Laws of 2006, requires that the New York State Uniform Fire Prevention and Building Code (the Uniform Code) provide that any “residential or commercial swimming pool constructed or substantially modified after the effective date of this paragraph (December 14, 2006) shall be equipped with an acceptable pool alarm capable of detecting a child entering the water and of giving an audible alarm.” The Introducer’s Memorandum in Support of Chapter 450 states, in pertinent part, that “drowning is the second leading cause of unintentional injury-related deaths in children between the ages of one and fourteen nation wide, and the third leading cause of injury-related deaths of children in New York. . . . (T)echnological advances have produced several different types of pool alarms designed to sound a warning if a child falls into the water. When used in conjunction with access barriers, these alarms provide greater protection against accidental pool drownings.” This section and section 1220.5 of Part 1220 of this Title are intended to implement the provisions of Executive Law section 378(14)(b).
(b) Definitions. The following terms shall, for the purposes of this section and for the purposes of section 1220.5 in Part 1220 of this Title, have the following meanings:
(1) Approved. Approved by the code enforcement official responsible for enforcement and administration of the Uniform Code as complying with and satisfying the purposes of this section and section 1220.5 in Part 1220 of this Title.
(2) Commercial swimming pool. Any swimming pool (as defined in paragraph (4) of this subdivision) that is not a residential swimming pool (as defined in paragraph (3) of this subdivision).
(3) Residential swimming pool. A swimming pool (as defined in paragraph (4) of this subdivision) which is situated on the premises of a detached one- or two-family dwelling; a multiple single-family dwelling (townhouse) not more than three stories in height; a one-family dwelling converted to a bed and breakfast; a community residence for 14 or fewer mentally disabled persons, operated by or subject to licensure by the Office of Mental Health or the Office of Mental Retardation and Developmental Disabilities; a one-or two-family dwelling operated for the purpose of providing care to more than two but not more than eight hospice patients, created pursuant to Article 40 of the Public Health Law, and defined as a hospice residence in §4002 of said Law; a manufactured home; a mobile home; or a factory manufactured dwelling unit.
(4) Swimming pool. Any structure intended for swimming, recreational bathing or wading which contains or which is designed to contain water over 24 inches (610 mm) deep. This includes in-ground, above-ground and on-ground pools; indoor pools; hot tubs; spas; and fixed-in-place wading pools.
(5) Substantial damage. Damage of any origin sustained by a swimming pool whereby the cost of restoring the swimming pool to its before damaged condition would equal or exceed 50 percent of the market value of the swimming pool before the damage occurred.
(6) Substantial modification. Any repair reconstruction, rehabilitation, addition, or improvement of a swimming pool, the cost of which equals or exceeds 50 percent of the market value of the swimming pool before the repair, rehabilitation, addition, or improvement is started. If a swimming pool has sustained substantial damage, any repairs are considered to be a substantial modification regardless of the actual repair work performed.
(c) Pool alarms. Each residential swimming pool installed, constructed or substantially modified after December 14, 2006 and each commercial swimming pool installed, constructed or substantially modified after December 14, 2006 shall be equipped with an approved pool alarm which:
(1) is capable of detecting a child entering the water and giving an audible alarm when it detects a child entering the water;
(2) is audible poolside and at another location on the premises where the swimming pool is located;
(3) is installed, used and maintained in accordance with the manufacturer’s instructions;
(4) is classified by Underwriter’s Laboratory, Inc. (or other approved independent testing laboratory) to reference standard ASTM F2208, entitled “Standard Specification for Pool Alarms,” as adopted in 2002 and editorially corrected in June 2005, published by ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428; and
(5) is not an alarm device which is located on person(s) or which is dependent on device(s) located on person(s) for its proper operation.
(d) Multiple pool alarms. A pool alarm installed pursuant to subdivision (c) of this section must be capable of detecting entry into the water at any point on the surface of the swimming pool. If necessary to provide detection capability at every point on the surface of the swimming pool, more than one pool alarm shall be installed.
In A Down Market; Increase Your Firm's Business, Part II/II
In a recent Wall Street Journal article by Jamie Heller, law firms will experience a flat to 5-6% decline in business this year. Partners are being scrutinized more closely as is outside counsel. Our experience in the field indicates that firms are less inclined to take on personal injury cases unless there are obvious injuries (i.e., fractures). Soft tissue injury cases are becoming a matter of the past as are medical malpractice cases, which are often labor-intensive, with hard to prove relationships between malpractice and injury and prohibitively costly expenses (expert witnesses, reconstructions, research...). Larger firms are cutting "non-producers" within their ranks and solo and small- to medium sized firms are more tightly focusing their advertising budget.
Below are several zero-to-low cost marketing tips that can be implemented immediately and may help to maintain or increase your practice's income status/ client retention:
1. Stay in touch with your clients. Instead of frantic calls to or from your clients when case activity occurs, schedule set, periodic update calls or notices to your clients. If there is no activity, simply have your assistant (digital, human or combination) mail/email a contact information update request to your client. Otherwise, if you know there are upcoming events that will require your client's input, don't upset your entire schedule with 2 minute phone calls here and there. Schedule several hours biweekly with a set list of clients to discuss their matters.
2. Network. Great movie; invaluable concept. LinkedIn recently announced an agreement with the traditional online lawyer directory LexisNexis Martindale Hubbell. LinkedIn is quickly becoming the largest professional networking site in the world. LinkedIn has added a powerful social networking component onto the Martindale site. As of last week, 260,000 lawyers have LinkedIn accounts. Join today.
3. Blog. Use Blogger, Wordpress; any generic application will do but get your firm's business out there. Prospective clients, as the rest of the online world now, wants information. They actively seek it and you need to provide it. Remaining faceless in a society that increasingly demands transparency and data is suicidal for any business. And write your own blog, or assign to someone competent within your firm. There are businesses that will provide fee-based "blogs" but we would firmly advise not to waste your budget on this tactic. Your blog needs to reflect your firm's personality, even if you update it once every two weeks.
4. Identify and target your market. The most attuned attorneys are focusing on niche markets and sniper-shooting their advertising efforts.
We hope these tips help your business; it helps ours!
(We thought we'd start the Monday after this holiday weekend with several good laughs with the above video of 4 brief but hilarious commericals to kick off our two-part marketing series.)
Part I of II/ Marketing Don'ts
Anyone who has been in business for a while has probably learned a few marketing don'ts but it doesn't hurt to repeat them as we all tend to stray from our original advertising goals. This week we'll go over these basic marketing don'ts with a follow up next week of proven advertising do's.
10 Marketing Assumptions That Are Wrong For Your Practice
1. Current and prospective clients know what services I provide; (Generally, clients are aware only of the services that they are seeking. Teach them.)
2. Referral services will send me all of the clients that I need or can service; (No comment necessary to point out the fallacy of this presumption.)
3. My marketing materials don't need my photograph; (Especially in this technological age, people want to place a face to the professional they will contact.)
4. Clients will remember what I tell them, so I don't need to send any follow up correspondence; (Wrong. Regardless of the sophistication level, people hear what they want to hear.)
5. Clients will understand legal jargon; (Wrong again. Read above.)
6. Certain marketing methods are obsolete. (All advertising avenues work; it's your budget and message strength that will determine ROI.)
7. Complicated messages will make clients feel that they need my services more; (KISS - no offense intended.)
8. Graphics are unimportant in visual media placements; generic photos can be used. (Keep it real. Real pics of yourself, your staff, discreet photos of your office...)
9. People expect lawyers to not return phone calls promptly; they know attorneys are busy. (No, they don't and they don't care about any other matter other than their own.)
10. Keeping in touch with clients on a reasonable basis is a waste of time. (It'll also be a waste of money when you have to re-locate your own clients or take an extraordinary block of time to bring them up to speed after months or years of non-contact.)
Basically, it's your firm, your business and as such, you never stop selling yourself.
