The practice of “friending” on social-networking sites can be a legally dangerous one when it involves a supervisor and a subordinate. Plus, a lot of subordinates think it’s creepy.

The seemingly innocent practice of  sending friend requests to staff via Facebook, Twitter and other sites can trigger a slew of legal claims, including harassment, discrimination or wrongful termination, as well as touch off complaints of favoritism if the boss friends only a select person or persons.

That’s the warning from attorney Michael Schmidt on law.com.

Here’s the source of the problem: Social-networking sites typically are packed with personal information. So, what happens if a friending boss learns TMI — too much info — about a subordinate? That opens the door for an employee complaint that the boss made work decisions, such as promotions, based on the personal information.

The example given by Schmidt:

• Suppose an employee is a member of a gay-rights group.
• Then suppose the friending boss fires the employee because of performance issues.
• The employee then could argue that the boss used the personal information as a basis for the termination.

That’s just one example of many: religious affiliation, age,  political affiliation, health problems. All could serve as a basis for a lawsuit should the supervisor take an adverse action against the employee.

If that’s not enough, consider that in a survey by staffing firm Office Team, 47% of respondents said they don’t want to be friended by their bosses.

The message to supervisors: Don’t do it.

Question:
We’re trying to prioritize our training on preventing sexual harassment. Can you give us an idea of where the biggest problem spot is for most companies?

Answer:

Of the roughly 5,000 sex-harassment complaints filed with EEOC last year, the majority of them were based on supervisors’ not responding to initial complaints. That comes from HR consultant Hunter Lott, who’s done harassment-prevention training for firms such as Anheuser-Busch and FedEx-Kinko’s.

Most firms get into trouble because supervisors don’t take complaints seriously, so employees feel forced to go outside the company to get someone to listen to them.

A new book, “Think Again: Why Good Leaders Make Bad Decisions and How to Keep it From Happening to You,” attempts to explain the whole thing — and the financial collapse — by using neuroscience and psychological analysis.

To try to boil a few hundred pages of a book into a few hundred words is perhaps another bad decision, but here goes:

• People tend to think if something worked once, it’s guaranteed to work again. This is the reverse of “Experience is the best teacher” — especially when the experience is misapplied. We saw it happen on Wall Street when experienced money managers thought they could ride to the rescue simply because they’d done it before. What they, and everyday supervisors, fail to recognize is that rules and circumstances change, so a solution that worked 10 years ago might be useless today.
• Self-interest can be a poor guide. Let’s go back to Wall Street and Alan Greenspan’s observation that he failed to realize that big banks wouldn’t operate in their best self-interests. Actually, companies don’t control self-interest; people do. And people tend to see only what’s best for themselves in the short term. Likewise, many good supervisors — maybe because of business pressures — can’t see past the next 30 days. So they take the quick fix for themselves and hope for the best — and often get the worst.
• Data gets filtered based on prejudgments. Here’s the way this works: Let’s say a  supervisor is convinced someone’s a star employee and gets four reports on that employee — three bad ones and one good one. The supervisor will tend to focus on the good report because of the prejudgment that the person is a good employee.
• Buy-in can be bad. You know the old technique of giving people responsibility for their own ideas by making them responsible for the sucess of the idea? What happens is that they become so married to the idea that they’ll ride it — and everyone else — into the ground in a vain attempt to prove the idea is brilliant.
• Everyone has a bias. And everyone needs someone else to point out when that bias is a road to ruin. “Yes men” need not apply for the job. The someone who points out the destructive bias has to be strong, honest and smart.  We hope the folks on Wall Street are reading this book.

The scenario
“Sandy, you gotta help me,” said supervisor Tom Bartley. “I really screwed up.”

“What’s the deal?” asked HR manager Sandy Gomez, motioning for Tom to take a seat. “Problems in the department?”

“Yeah, you could say that. It all boils down to this: I promoted the wrong person, and I can’t think of a good way to fix the situation.”

Things didn’t go as planned
“I remember when you were agonizing over who to choose – Rebecca or Trish,” Sandy recalled. “I guess Rebecca hasn’t worked out as well as you’d hoped.”

“Boy, that’s an understatement,” said Tom. “She just can’t seem to get the hang of her new responsibilities. And the more she screws up, the more defensive she gets. And then everybody in the department starts getting an attitude. It’s a mess.”

“What’s Trish’s reaction been?” Sandy asked.

“She hasn’t said a word,” Tom answered, “but I’ve caught some of her facial expressions when things have gone wrong.

“She knows we can’t continue to operate like this. And the other employees know it, too.

“I’m going to have a revolt on my hands if I don’t do something soon,” Tom concluded. “The question is, just how am I going to finesse this? I’d hate to lose Rebecca, but she’s making everybody’s life miserable.”

If you were Sandy, what would you advise Tom to do next?

Ron Wolfgang, HR manager, South Bend, IN
What Ron would do: I’d have Tom set up a 30-day performance plan for Rebecca. It’ll need to be clear and concise, so Rebecca understands what she needs to improve on. She also needs to understand that if she doesn’t make improvements by the end of 30 days, there will be some changes.
Reason: I hate to not give employees an opportunity to improve their productivity. So giving Rebecca a month to turn around her efforts is the best remedy. But after that, we can’t afford to have her continue performing poorly.

John Steepy, HR manager, Rochester, NY
What John would do: I’d make sure that Tom has documented all of Rebecca’s shortcomings. If so, either demotion (if she agrees) or termination would be my recommendation.
Reason: As long as there’s documentation, a demotion or termination is the natural response to an employee not pulling his or her weight. Morale and productivity can’t be sacrificed.

Jean Yarger, HR manager, Grafton, WI
What Jean would do: First, I’d have Tom ask Rebecca how she thinks she’s performing. If she admits to her poor job performance, I’d suggest either handing Rebecca her old job back or lightening her duties in favor of more work for Trish. If Rebecca doesn’t realize she’s performing poorly, I’d advise Tom to set specific performance goals for her.
Reason: It’s always wise to see how an employee rates his or her own production before taking drastic measures. It’s a safeguard against a possible lawsuit. After that, you look for a solution that’s in the best interests of the company.

Her story:

When we recruit people, we sell them on the idea that our company believes in continual learning and improvement – meaning we support training as a way to reach career goals.

The problem with that: Our supervisors and HR were always
challenged to come up with new and different training employees could attend offsite and onsite.

Plus, of course, the training had to be relevant to the goals of the employee and the company. Keeping on top of that was almost a full-time job in itself, and we couldn’t
afford a training coordinator to do it.

Our solution: Make employees their own training coordinators – but it took some work.

Two stipulations
The cornerstone of the solution was to have employees find and choose their own training. No one really knew for certain whether employees would like the idea – many were skeptical or didn’t want the responsibility – or whether it would work.

• So we tried it for about a year on an experimental basis with a few employees. We told them they could choose their own training, but approval would be based on two major stipulations:
• The employee had to show the connection between the proposed training and their jobs and careers.

Cost would be a factor in approval. The more expensive the training, the greater the benefit the employee
would have to show – to the company and the job.

We rolled out the program and held our breath, waiting to see what would happen.

Early results
One of our first successes was a customer service employee – let’s call her “Jane” – who told her boss she was interested in the quality-control end of our business, and asked for training in that area.

Jane picked out her training, got the OK, and ended up moving into quality control and being a top performer.
We used that success story as a template to show others how the program might work for them. And an interesting thing happened.

Not all employees embraced the idea – some still wanted the
supervisor to pick the training. But we found that the ones who did take control of their training often also happened to be our most motivated, top performers.

In other words, the top people used the program to get better or to help themselves advance with the company. That assured us the program was working.

(Norma Anthony, Medford, NJ)

Her story:

Squeezing in affordable management training was always a challenge for us.

Our operation runs pretty lean, so it’s hard for supervisors to head off to some remote site for several days for management training. And then, of course, there’s the cost involved.

We did try to do some onsite training, but you usually have to have a large group for that to be cost-effective — not practical in our small outfit — and you have to schedule a block of time that may not always convenient for everyone.

We had to figure out a way to address our management-education problem.

As a start toward that goal, I decided to call some education experts – the business department at our local community college.

Late-day classes
I explained our goals to the department head, and we worked out a solution. He’d send us a list of management courses that ran only from 3 to 5 p.m.

That way, our supervisors could attend at the end of the day for an hour or two without breaking up a whole day or going to some far-away site. The school even helped us work on getting a state training grant to help pay for some of the classes.

So we ended up with management training that’s effective, convenient and affordable.

(Lynette Kautz, HR director, Denison, TX)

The move to institute paid sick and maternity/paternity leave in the United States got a boost from the election of Barack Obama and a slap from the economy. So where’s the movement headed? 

Read into this what you will, but First Lady to-be Michelle Obama has identified “work/family balance” as one of the issues she’ll focus on when she moves into the White House.

And President-elect Obama and the Democratic members of Congress have said they’ll give priority to legislation like the Healthy Families Act — which, among other things, guarantees paid sick leave (see a summary of the act). Standing in the way of those promises is a rough economy that has a lot of businesses operating on the edge already.

So where are proposals like paid sick and FMLA leave going? Even some Democrats aren’t sure about what to do now.

3 States say ‘no’ — for now
Democratic Gov. Ted Strickland of Ohio, for instance, withdrew a ballot measure for paid sick leave in his state for fear of weakening businesses there in already tough times and putting them at a competitive disadvantage with businesses in neighboring states that don’t have paid sick leave. Democratic strongholds like Washington State and New Jersey have stalled on similar measures, for the same reasons Strickland cited in Ohio.

That doesn’t mean the movement is dead. More likely, state leaders are waiting for Congress to set up a national program so that no state will be at a business disadvantage. And Congress and Obama may be ready to take up the cause.

Sen. Chris Dodd (D., CT), who wrote the original Family and Medical Leave Act in 1993, has said he supports and will push for a proposal to offer eight weeks of paid family leave, funded by the combined contributions of employees and employers. And Obama campaigned on the idea of changing the Family and Medical Leave Act to cover companies with as few as 25 employees, instead of the 50-employee minimum in the act now.

Add up the two proposals and you get paid leave for anyone who works for a company of at least 25 employees.

U.S. v. the world
Right now, the U.S. has three cities that mandate paid sick leave — Milwaukee, San Francisco and Washington. One state, California, has paid FMLA, and eight other states have legislation pending on the matter.

Proponents of paid sick/FMLA leave point to statistics that appear to put the U.S. behind developed countries on the issue:

• 66 countries guarantee that fathers receive paid paternity leave or have a right to paid parental leave.
• Only four countries of 173 surveyed don’t guarantee some form of paid maternity leave. The four are Liberia, Swaziland, Papua New Guinea and the United States.
• At least 145 countries provide paid sick days, and 136 offer at least one week a year.

Got an opinion on the subject? Please take the poll on our home page (on the right), and see what other HR managers think, too. 

The guidelines don’t represent any real change in the rules, but they do clarify some issues that employers have struggled with:

• What’s a religion? The definition of “religion” is broad and covers traditional belief in a god as well as nontraditional – but sincerely held – moral or ethical beliefs as to what’s right and wrong. So the belief doesn’t necessarily have to be based on a deity or any of the traditional organized religions.
• What aspects of the workplace are covered by the rules against religious bias? The prohibition against religious discrimination covers all aspects of the workplace, including recruitment, hiring, promotion, discipline, scheduling, compensation, and termination. In other words, religious bias is considered the same as any other bias — race, gender, disability, etc.
• Is there any such thing as “religious harassment”? Yes, employees can charge an employer with religious harassment, just as they can charge racial harassment or sexual harassment. That means if a supervisor overlooks it when employees ridicule another because of religious beliefs, that supervisor is opening the door for a religious-harassment lawsuit.

While the EEOC doesn’t set strict rules on when an employer should or shouldn’t accommodate an employee’s religious beliefs by flexible scheduling or other means, the agency does require employers to take any reasonable measures that don’t create an undue burden, financial or otherwise, on the company.

The facts:
One of the pieces of mail contained a letter — mistakenly addressed — from the employee’s lawyer. The letter contained details of a discrimination suit the employee was planning to file against the employer in connection with the firing.

The supervisor opened the letter, believing it to be standard business correspondence that need to be dealt with because the employer was no longer there. After seeing the contents of the letter, the supervisor made a copy and kept it in a file in case the employee did file the lawsuit.

The employer said:
The letter was sent to the company’s address, and as such was company property. And the supervisor hadn’t opened the letter with the purpose of learning confidential details of a lawsuit, so there was no intent to invade the employee’s privacy.

Who won the case?

Answer: The employee.

Why: A judge ruled that keeping a copy of the lawyer’s letter was an invasion of the employee’s privacy. In handing down the ruling, the judge noted the company indeed had a right to open and examine mail addressed to the ex-employee but delivered to the
company’s office. Most times, legitimate business needs are served by such action.

But that doesn’t give employers a free hand to keep mail that’s obviously of a personal, confidential nature, especially documents of the type that pass between attorneys and clients. There are distinct differences in types of mail.

Making careful choices
It’s a common situation. An employee leaves, sometimes under less-than-ideal circumstances, but the mail for that employee keeps coming in. What to do?

This case illustrates that managers must make some careful choices. Mail that’s obviously business-related may be opened and used strictly for business purposes. Other types of mail – say, from a lawyer or the IRS – should be returned to the sender or forwarded to the ex-employee (if you have a forwarding address) unopened if possible. To do otherwise leaves the company vulnerable to some serious charges.

Cite: Roth v. Farner-Bocken Co.

A Capital Associated Industries look at hundreds of companies that tried telecommunting reveals the five problem areas:

1. A lack of policies in place before implementation. This is a variation of the old “ready, fire, aim” approach. Too many companies jumped into telecommuting without having good policies in place. So decisions seemed based on a whim — leaving managers and workers unhappy. Worst-case scenario: A company can end up violating employment law because an uninformed manager who had no policy guidelines ended up making a wrong decision.
2. Too much technology spending. Eager managers decided they needed to beef up IT to add on telecommunting-related bells and whistles. Often, they learned, basic IT resources would have been just fine, at least for the near term.
3. Poorly trained supervisors. Managing offsite people takes some skill and understanding, and too many companies thought their supervisors could get by with the same skills they’d been using for onsite people.
4. A square peg in a round hole. Some companies — after trying to make it work — learned their business and culture just didn’t fit the telecommuting model. They never considered in the beginning that telecommuting doesn’t work for everyone in every type of environment.
5. No pilot program. Fearful of appearing to show favoritism, some firm tried wholesale telecommuting, OK-ing offsite work for large chunks of the workforce, instead of testing the program with a smaller group first.