Show Notes: Episode 197 – Building Thriving Teams through Games and Play (with Alexandra Suchman)
June 17, 2024
Show Notes: Episode 198 – Mitigating Risk with Employee Handbooks (with Ken Siepman)
July 1, 2024

Click here for this episode’s show notes.

This transcript was created using an automated transcription service and may contain errors.

Ken 00:00
I think the first thing that we have to do as an employer is step back and really think about what it is that we want to accomplish, or wish to prohibit, with a policy in mind and then really keep things focused on that goal.

Susan 00:18
Welcome to The JoyPowered® Workspace Podcast, where we help HR and business leaders embrace joy in the workplace. I’m Susan White, owner of Susan Tinder White Consulting, an HR consulting practice. Joining me is my co-host and dear friend JoDee Curtis, owner of Purple Ink, a large scale HR firm that I’m an executive collaborator with.

Susan 00:38
Today, we’re going to talk about employee handbooks. Forbes has an article online from Christine Organ and Cassie Bottorff entitled “Employee Handbook Best Practices in 2024,” that calls out the benefits to employers and employees of having an employee handbook. They set clear expectations. Having a handbook reduces uncertainty, and it welcomes new employees while affirming company values. Although you are not required to have an employee handbook, depending on the size of your organization, local, state, and/or federal laws may require you to provide your employees information about paid time off, sick leave policies, FMLA rights, and other workplace rights and protections. So why not have a handbook is my philosophy. You know, you need to inform them, why not do it in one place and, and hopefully in a positive manner? Early in my career, when I worked for a bank that had about 2,000 employees, one of my responsibilities was to update the handbook annually. Oh, JoDee, I took that responsibility so seriously, and I worried year-round about catching any legal changes or procedural changes that were needed before we went to press. And then we really went to press, meaning we printed off copies of this book every single year and we provided all, all of our employees with an updated book and had them acknowledge receipt. And then we would take that receipt and manually file it in personnel files. Does that take you back? It was a body of work. How about you, JoDee? I know that you’ve probably had some similar experiences about, with handbooks.

JoDee 02:14
Yes, I have, and we’ve done many for clients, and then I’ve done a few myself at companies I’ve worked with before. One thing I do, although I think employee handbooks are very important, I do sometimes encourage employers who have, say, less than 10 people that… to be really careful about what they put in writing unless it’s really happening. For example, I’ve seen many handbooks that say, you know, “we require performance reviews,” or “performance reviews will be conducted every year,” and then people don’t conduct them, right?

Susan 03:02
Oh, yes.

JoDee 03:04
If you’re not going to enforce this, don’t put it in there, because…

Susan 03:08
Good advice.

JoDee 03:09
….set you up for, you know, lawsuits or something if, if there’s an issue with something in the handbook.

Susan 03:18
Yeah, that is great advice. You know, my guess is that most of our listeners who are business leaders and HR professionals, they work in organizations that have an employee handbook of some kind. Whether they are regularly updated, referred to by your supervisors and managers regularly, or even read by employees varies greatly. JoDee, I found a statistic regarding this that kind of rattled me. People Matters reported that a survey conducted by XpertHR in October of 2020 found that 60% of staff avoid reading their company’s employee handbook.

JoDee 03:53

Susan 03:54
I know. Think of all the work that goes into, first, creating a good employee handbook, and then the frequent reviewing and updating of it as things change. Only being read for, by maybe 40% of your employees!

JoDee 04:07
Yeah, that is interesting.

Susan 04:10
The Forbes article has tips for those of us responsible for creating employee handbooks that we want our supervisors and managers and employees to read and use. So let’s share those tips.

JoDee 04:22
Number one, keep the tone positive, professional, and understandable. My rule of thumb is I don’t want to see a lot of policies that tell you what you can’t do. You can’t wear this or that, you can’t take more than this time off, you can’t do this under FMLA. I like to share what you can do or what a company encourages you to do and not…

Susan 04:54
I like that.

JoDee 04:55
…using “no,” “not,” and “can’t.”

Susan 04:58
Wonderful perspective. Number two from the Forbes article is avoid legal jargon or confusing terminology. We want it to be clear, we are not trying to get people scared, and we’re also not wanting them to walk away thinking, you know, wondering what should they do. We want it to be very crisp, clear, and focused.

JoDee 05:16
Yes. Number three, ensure access to the handbook is easy. I think many companies these days keep them on an internal intranet or somewhere where you can easily click on it, but if you printed copies for everyone, you know, make sure they know where to find one.

Susan 05:38
Yes. Number four, retain those employee acknowledgments of having received the handbook. That’s really a good defense for you should you ever act on anything, a policy or a corrective action or anything that’s in your handbook. You want to make sure that you can demonstrate the employee knew better, and that they had signed off on your – having received that work role.

JoDee 05:59
And include contact information for those who can answer questions that arise from reading the handbook. I do, although I think that’s important, I try never to use people’s names, because the names could change.

Susan 06:17
Yes, good advice.

JoDee 06:18
Say things like go, go to the head of HR, or go someone in HR, or go to your manager or your supervisor or the president or whatever that might be.

Susan 06:33
Terrific. Yep. And then number six, and their final tip, was promptly communicate updates to employees of changes to their handbook. And you know, I would add every time you change something, try to document the receipt. Certainly if you take action under a policy and you’re doing exactly what the handbook would have suggested you would do, but three years later, you realize that policy has changed, now maybe litigation has occurred about something you did in the past, you want to make sure that you know exactly on that date, why you did what you did, a copy of that policy that was in place.

Susan 07:08
I recently heard Ken Siepman, a shareholder at Ogletree Deakins, speak at an employment law briefing on employee handbooks and found his talk very interesting. We’ve invited him here today to share his perspective on things that we can be doing to mitigate risk with our handbooks. Ken earned his law degree at Vanderbilt University and has worked at Ogletree Deakins for 24 years helping organizations address and solve problems arising from the employment relationship. Ken regularly helps clients navigate ADA, FMLA, FLSA, Title VII, ADEA, NLR, OSHA, unfair competition and trade secret matters, wage claims, and allegations of wrongful discharge. That is a lot of work! Ken enjoys counseling and training of business leaders on how to create and maintain positive employee relations that result in JoyPowered® workspaces, which is why we’ve invited him here today. So welcome, Ken. We are so glad that you could make it today.

Ken 08:08

Susan 08:09
Hey, so our first question for you is do you see organizations who have chosen not to have employee handbooks, and when might that be a good idea, or are there just risks in not having them and you think everybody should have one?

Ken 08:22
You know, it’s really tough to say, Susan. I, some employers are choosing not to have handbooks, but not at the expense of not having policies. And so I think most continue to have handbooks, but there are other employers that more have, like, groups of their policies that they would have that regard their work rules or regard their equal employment opportunity or non-harassment policies, things of that nature, or a lot of ongoing developments. And so I think it would be a bad idea not to have policies. I think one of the benefits of not having a handbook per se is flexibility so as laws change and little pieces, if I need to add a PTO policy, or if I want to add an individual policy, I don’t need to, like, republish a whole new handbook when I’ve made fairly minor revisions to it. And so having either freestanding policies or a group of personnel policies. It depends a lot on the structure of a business, too. I think more in an office environment, or where people have internet access, or, you know, intranet access to the policies, procedures, we’re more and more seeing companies that have, you know, discreet policies on various topics that work in that manner.

Susan 09:36
Fair enough.

JoDee 09:37
And Ken, is it okay to only have your employee handbook in a digital format, maybe where employees could access it on an intranet, and never actually have a printed hard copy?

Ken 09:52
I think it’s certainly legally compliant. whether it makes sense depends on the particular business again. If I’m in a manufacturing environment where employees do not have – the lion’s share of employees do not have ready access, at work at least, to their to the company’s intranet or system of that nature, I think it would be less valuable. And, and, and from a compliance and training perspective and ensuring employees understand it, how – if you don’t distribute it and have training on it in that manner, how do you do that in that kind of a work environment? So I think it varies. One of the other pieces about, I mean, having a handbook is not for handbook’s – you know, just to have it. It’s what’s in it are things that a company determines are important to it, that it wants to make certain employees know, and understand what are expected from them, so you’re then gonna want an acknowledgement. So for office work environments, or sales work environments, or other environments, or even in, in a manufacturing setting where everybody actually has some log in and internet, you know, access or ability to train that way, that might be sensible, but for, you know, for construction or for that or others, having something that you actually hand out and distribute to somebody probably is going to be more useful.

JoDee 11:11

Susan 11:12
Makes good sense. Yeah. So Ken, can you help touch on the sensitivity regarding what you include in your handbook while you’re really paying attention to staying compliant with Section 7 of the National Labor Relations Act regarding protected concerted activity?

Ken 11:26
Yeah, Susan, that’s a really tricky area right now. I think, stepping back for a second, a lot of people mistakenly believe that the National Labor Relations Act only applies in a unionized work environment or in a situation where employees are trying to obtain unionization, but the statute generally applies to all private sector employers throughout the country, and so it’s an area that’s a real challenge. The board for a long time has held there are three different ways a rule, a company’s policy or work rule, whether it’s in a handbook or free-standing, might violate that law. That it’s facially unlawful, for instance, a rule that would prohibit an employee from talking with his coworkers about their wages or their workplace safety or concerns that relate to the employment, that would violate the law, and all boards and administrations find that. A second way is if an employer were to learn that there were ongoing union organizing and so the company changes its no solicitation rule or makes an adjustment to respond to behavior of that nature. And so that kind of a discriminatory application creates a real, the real challenge day to day. And where, you know, as you see in this area is there’s a third method that’s been out there, the board has long held, related to if an employer has a work rule on its face that looks okay, but it would have a reasonable tendency to chill employees’ protected activity. And the problem is that that piece of it is subject to a lot of change in the law and the board’s interpretation. And in August of last year, the board issued a decision that makes it much more difficult for an employer to have a compliant rule. Under that standard, the board basically decided that if the rule, even if the rule could be read in a way that’s lawful and appropriate, if it might also be read to be in a manner that could restrict an employee’s right or that might lead them to think they can’t talk about wage or they can’t say a bad thing about their supervisor, that the rule would be presumptively unlawful, and it would be very difficult for an employer to comply under the new standards. And so the board created a standard that said even if a rule, to overcome a rule being unlawful, an employer might then have to show that it has a substantial, legitimate business objective, and it could not be drafted more narrowly. And I submit to you that that will be a very, very difficult standard to meet, because one can almost always argue that a rule could be written in a way that is more narrowly tailored. And stepping a little further, the Labor Board, in the case where it adopted this new test, didn’t actually apply it to the case. It sent the case back to the judge. So the board has not decided any cases applying the new standard it set in Stericycle, but administrative law judges – or ALJs, as we call them – have applied this test in 13 cases since Stericycle was decided, and in all but one of the cases the, the law judges found various employer rules unlawful.

Susan 14:44
Oh, my gosh.

Ken 14:44
And they included such things as rules on solicitation; removal from the premises of employee lists, blueprints, and company records; a rule prohibiting employees from sharing proprietary or confidential information; a rule prohibiting moonlighting or loitering; a rule prohibiting malicious statements concerning employees, the company, or its products; perhaps most troubling to me, a rule prohibiting, quote, “discourtesy to a customer, vendor, or the general public resulting in a complaint or loss of goodwill.”

Susan 15:18

Ken 15:20
And so the reality of where we find ourselves right now is that – I’ll just highlight for you a few, a few areas of rules that employers are really going to need to focus on. Civility rules; professional conduct rules that can be read to ban criticism of supervisors, management, or the company; rules that can be read to restrict abilities to criticize the employer even to the public; confidentiality non-disclosures; confidentiality during investigation; no camera recording rules; conflict of interest; rules prohibiting providing even false information; non-disparagement; and you know, in this modern day, social media policies are getting a lot of attention.

JoDee 16:07

Susan 16:08
Yeah, I find it overwhelming, don’t you, JoDee?

JoDee 16:10

Susan 16:10
Oh, my gosh, because I think about how we’re trying to make our workplaces more civil and more welcoming, and all these types of rules we’ve had for a long time could be at risk.

JoDee 16:19
Well, and I’ll tell you, Ken, you had me in your first sentence, which said that most people think it only applies to companies with unions. And I have to admit, when I see NLRA, I many times shut down thinking, oh, it’s only a union issue, right? And I quit reading. And then you kept talking, and I was like, holy cow, need to start paying more attention.

Ken 16:47
Yeah, it’s a really, it’s a really challenging area. And one of the things that the rule – one of the other things, back to the Stericycle test, what the board has said is, we’re going to interpret the rules from the perspective of understanding that the employees are economically dependent on the employer for their livelihood, and so they are going to take a cautious approach and refrain from engaging in activity for running afoul of a rule. And so with that, kind of what I would say is a jaundiced perspective of us, it’s almost built in, we’re going to assume that the employer is trying to restrict protected activities, rather than think that employees will understand or apply what we, you or I might think of as common sense and realize the company is not saying we can’t talk about this or do this. And so that makes it real, real difficult. And it was funny, I was even talking with one of my colleagues who devotes all of his time in the traditional labor space to, you know, maybe we shouldn’t have rules anymore and just fire somebody who behaves unprofessionally as long as it’s not directly connected to a rule, because the way these things can come out is, you could find that you fire an employee for a lawful reason, but the rule itself underlying that discharge is construed to be too broad, they could then overturn a discharge that might otherwise be lawful, even under the protected concerted activity standards of the board. So it’s just, it’s really difficult because, you know, one of the keys are employers are just going to have to do a lot more. Instead of having a simple short rule, the reality is to be compliant, employers need to spend more time drafting much more carefully. Like, what is confidential? So focus on trade secret, intellectual property, proprietary customer information, you know, be much more detailed and make certain that you exclude things like wage information or personnel information or things of those natures as you’re working through that. And that’s, you know, we end up having, instead of having a short 20 or 30 or even a longer handbook, depending upon the policies that are in it, I’ve now got to write a 300-page opus to make certain that I’ve got the carveouts, and, and is the, you know, is the juice worth the squeeze?

JoDee 19:22

Ken 19:23
So it’s a real, that’s a real day to day challenge. And you also have… you know, in the employment space, for instance, we have a lot of other laws that we have to deal with and comply with. And so for purposes of, like, our hara – your workplace violence prohibition or trying to prohibit workplace harassment, things of that nature, we have policies that are designed to deal with those things, and we have to be careful even about some of the language in them. Because the Labor Board takes the view, for instance, that employees can, employees can curse in the context of engaging in protected activity. They can say mean things and awful things about their supervisor or even about the company, depending upon the context. So if I’ve got a concern about workplace safety, it might get heated, and so the Labor Board looks at those areas and says, we understand your rule, but in the context of what this employee did, it made sense that he got mad, it was heated, you know, that’s part of this, that’s part of the labor dynamic, and the law. And so, you know, going back to your initial comment, e, was, you know, civility. Can’t we all just get along? I mean, it makes sense that every, everybody, you know, whether you’re at a union shop or not, hopefully, we want to be somewhere where we feel valued. And, and we want to work where we’re not being treated in a way that’s, that’s rude. And that’s – you know, many of the employer, the employer policies are intended with that in mind, but because of the way these rules can be read by others who have a different agenda, that can, that can just create a real obstacle for employers to have effective rules that don’t run afoul.

Susan 21:03
Right. You know, we had a listener question that came in, and in fact, I was going to ask you Ken, but I think you’ve just answered it. One of our listeners recently wrote in and asked us, “Are no swearing policies acceptable to have in an organization and include in our handbook?” I think the answer is, you’ve got to be really careful about that, because if people are swearing and cursing, and it’s a protected concerted activity, that may be fine.

Ken 21:25
Yeah. And the short answer is probably not. I mean, you really got to look at the language you get into parsing, I would, I would never recommend employer have a “no swearing.” I think as a part of your workplace harassment, and others, you can say, you know, no vulgar, obscene, pornographic, and you can use a lot of other things. But different people have a view, as well, as what, what is, what is cursing. And certain kind of language – and especially, again, if it’s, I’m having an argument with my supervisor about the way I think my supervisor is treating my coworker, that is going to be likely considered protected concerted activity. And so if in the conte – I mean, there is a line that an employee can cross and lose protection, but in the context of that kind of a conversation, things can get heated, and there might be curse words shared, and that, the mere use of curse words, would typically be protected in that context, unless it reaches kind of an extreme level. And so then having a rule that’s general and says “no swearing,” would certainly be read by this Labor Board, at a minimum, without a lot more context or examples, to be read to be overly broad because it would, it, employees reasonably might believe that they can’t speak up in a way that they deem appropriate under a circumstance in a protected context.

Susan 22:47
Well, thank you for that.

JoDee 22:48
Yeah. Well, I’d like to give you an easy question next, Ken, but you mentioned a bit earlier about social media. You know, a lot of people are concerned about what they can put in their social media policies that are compliant, but also protective of their company and their branding and their image. What are your thoughts on that?

Ken 23:15
Well, I think the first thing that we have to do as an employer is step back and really think about what it is that we want to accomplish or wish to prohibit with a policy in mind and then really keep things focused on that goal. And so I think you want to start out with policies to make it clear the purpose of the policy is to provide clear and consistent communications, protect trade secrets, intellectual property, promote compliance with the law, for instance, the federal trade regulations and National Labor Relations Board guidance make clear that the policies extend to social media activities, our EEO, our non-harassment, our code of conduct apply as well in the social media. And then you have more detailed specific sections that go into those areas, i.e., do not express or link to comments that are vulgar, obscene, threatening, pornographic. You can have sections about testimonials and endorsements, i.e., that we should avoid them. Policy should also make clear that individual employees speaking out on social media are not authorized to speak on behalf of the company. I think the real key claims to watch out for is looking at your policy to make certain that doesn’t have prohibitions on employees’ ability to discuss wages, benefits, or other terms and conditions of employment on social media. Because employees are going to do that. Whether it’s Facebook or Twitter or employee groups that communicate with one another, they talk about work, that’s what they have in common. And they generally have a right to do that. And again, you know, we want to spell out somewhat what we think of as confidential. Don’t use it over broad. Try to think trade secrets, strategic business plan, proprietary processes and technology, nonpublic customer information, you know, things of that nature and focus. So we can have in there, you know, harassment, bullying, discrimination or retaliation that would not be permissible in the workplace is also not permissible between coworkers online even if it’s done after hours from home and unknown computers. We can include in there prohibiting the use of social media to post or display comments, vulgar, obscene, etc. The other thing’s, I think, have a disclaimer. So something in your policy says any comments that directly or indirectly relate to the employer must include a disclaimer, something to the effect of, “postings on this site are my own and do not represent the employer’s position, strategies, or options.” So you can have those things. But again, the key is to step back, focus on what it is we really – what’s important to us. And then try to carefully define those interests that are consistent with your EEO requirements, your legal requirements, whether it be Federal Trade Commission or other, or you’re on the EEO side, and then work from that perspective in looking at it.

Susan 23:21
Wow. There’s, I think, a lot of work to be done.

JoDee 26:14
I know.

Ken 26:14

Susan 26:15
Yeah, the clients I work with, there’s a lot of work to be done.

JoDee 26:18
Well, I could – Susan, I’m thinking I’m nervous about our own employee manual at Purple Ink. I’m gonna have to go back and review it.

Susan 26:25
Absolutely. When I, when I heard Ken speak publicly, I thought, oh, my gosh, there’s work to be done here. So I’m so glad you’re here and talking to our listeners.

JoDee 26:32

Susan 26:33
Ken, this is a hopefully a pretty easy question. Are you required to have employee handbooks available in different languages or in Braille if requested by the employee?

Ken 26:43
No, generally speaking, not. But if you’ve got… I’ll take the latter section first. If we have an employee who’s blind or, or has a hearing, you know, whatever, has some kind of a reading impairment, part of what might be an accommodation, whether we’re thinking of it from a ADA perspective, or whether from the being a good employer, have somebody that can read it to them or have it be done that way. We’re not legally required to have our policies in in braille, and nor generally, is an employer, at least in Indiana, would not be required to have an employee handbook in, for instance, Spanish. Having said that, if, if an employer has a large portion of its workforce, whose primary English is Spanish, or, or some other language, that would certainly, it might be reasonable to have one, or at least also have people that, you know, who are qualified interpreters that are a part of your organization that can help people work through those issues. But generally, you’re not going to have a legal requirement to create and publish one, a handbook in another language.

Susan 27:53
Thank you.

JoDee 27:55
Yeah. And Ken, are there any new items that you are seeing organizations or some of your clients include in their handbooks?

Ken 28:05
Probably the most common thing that we’re seeing come up right now depen – especially with, for employers that have operations in multiple, multiple states is the proliferation of various leave statutes, whether for parental leave or for pregnancy, or whatever it might be. And so that’s an area of constant involvement, more general applicability. In the last year and a half, Congress has passed a couple of laws, one’s, you know, the Pregnant Workers Fairness Act, and a statute called Providing Urgent Maternal Protections for Nursing Mothers Act, which is known as the PUMP Act. And know that there should be policies, whether in a handbook or free-standing, depending upon the dynamic that you use, addressing those. For instance, the Pregnant Workers Fairness Act requires employers to provide reasonable accommodation to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation would cause an undue hardship. And so that’s a policy an employer needs to have in place to comply with the federal, new federal statute. And then the PUMP Act, it requires employers to provide break time to a woman to express breast milk and a space to do it. And on the latter, the key is the space must be functional, it must be shielded from view, and it must not be a bathroom. And so those are things that, that need to be added. So there needs to be a separate space that’s not a bathroom made available if you have employees who are expressing breast milk.

JoDee 29:38
Yeah. You actually brought up another topic when you mentioned the states. You know, we know that so many states now are coming up with their own rules. Leave is the one you mentioned, which is a big one, but I’m sort of wondering if that’s going to get more and more complicated as states create different laws around other topics as well. What do you recommend for companies who have employees in many different states?

Ken 30:13
Well, there are two kind of primary things that we see some employers – let’s say, as you probably know, California is the most onerous from an employer perspective of what it requires to be provided on behalf of employees or rules or procedures they have available. So some larger employers who have operations in lots of states say, okay, well, we want everybody to have the same, so we’re going to give everybody the, whatever meets the requirements in California. Economically, that’s not necessarily the smartest, and it may not be feasible or functional, or companies don’t want to do that. And so there are a couple of other ways to do it is you have kind of a general handbook and then you have state addendums that go beyond, and then you may want to reference them in the general handbook. And then – so if you work in Illinois, “see the Illinois,” whatever. You know, and when we’re looking at those laws, generally around here, Illinois is probably the most challenging from a compliance side, has the most rules. Michigan tends to be a little tricky, too, but much more New York, New Jersey, California are probably the states that have the most laws and the most ongoing changes. You know, again, back to the PTO, I think in California right now, not only do you have a state law, but there are, I think, 15 different municipal leave statutes. So for Santa Barbara, for San Francisco, for Los Angeles, for… you know, and you can imagine, and there are a lot of commonalities in those laws, but there are subtle differences in the various ones. And obviously, depending on where employees work, we have to comply with what the law of that state may be.

JoDee 31:54

Ken 31:54
So – which is one of the other things you may have heard about, there’s been ongoing talk and development at the federal level of perhaps creating paid leave. It’s not likely based on – and I don’t even… Jim Plunkett, who’s one of my colleagues in our Washington DC office, who’s kind of been on the inner circle and keeps up with a lot going on, I think recently shared that there is growing momentum to develop a federal paid leave, but it’s not likely something to happen, at least in the current congressional or next congressional session. But that would be, I think, frankly, for, especially for businesses who have multiple state operations, it’d be a law… you know, if you pass a federal law that created certain rights, and then make it preemptive of state laws or local laws, that would be, I think, a very good thing for employers, and frankly, would be a benefit to employees as well, in terms of consistency.

Susan 32:52
Yeah, boy, the simplification, I would love that. So can you share with us a moment of joy that you’ve experienced in your work in the last week?

Ken 33:00
Well, I guess I’m not certain, I guess, “joy” is the correct word. Earlier this week, I helped a client favorably resolve a complicated long running matter before Kentucky OSHA, and it’s always really nice to help a client to achieve an objective in the space where we’re working. I’d say a better example, perhaps, though, is that a friend and well-respected colleague had her 20 year anniversary at Ogletree on Tuesday, and the outpouring of kind words and support from my colleague was quite joyful.

Susan 33:32
Well, congratulations on to you on your OSHA, and also on your colleague, that’s wonderful.

JoDee 33:39
Yes. And can how can our listeners reach you if they would like to engage with you or… certainly, I think they’re going to have lots more questions about specifics in their organization. So what’s the best way to find you?

Ken 33:57
Probably through our law firm’s website would be the easiest, And my email is kenneth dot siepman at ogletree dot com. And then those would be easy ways to – probably the best way to kind of find me and, and reach out if there are things that we might be able to help with.

Susan 34:19
That’s terrific. And we’ll put that in our show notes, and our listeners will be able to reference those quite easily. Well, Ken, thank you. You’ve scared me, which I think is, you know, part of your job. I bet you scared some of our listeners, which is really part of what we’re trying to do here, so that we pay attention. We want employee handbooks that are are useful and compliant and really can help our employees and our employers. So thank you for today.

Ken 34:42
Hey, my pleasure.

JoDee 34:44
Susan, now it’s time for our listener question. We actually had two questions from listeners recently that were very similar, so we’ll try to respond to both of them today. And the questions are: “I have recently been written up with a performance improvement plan. I understand why. I’d like to tell my manager that I have overcome alcoholism and have discovered I have adult ADHD. However, I do not want to make excuses or make her think I need special accommodations. I genuinely want to share with her that I feel confident I can improve.” And the other listener asked, “I was written up by my manager. I’m trying to do better, but at the same time, I no longer think I’m the right fit for the job. It’s tense for both of us. I’d like to have a way to talk to her and still do a better job to help me last through this time until I find a new role.”

Susan 35:55
Wow, well, first of all, kudos to both of you for taking accountability for your actions and performance and wanting to either fix it or exit professionally so that you can find the right role for you that I know is out there. In the first situation, where you are a recovering alcoholic and have adult ADHD, God bless you. I lean toward having a conversation with my manager and saying that I do need reasonable accommodations, I’m committed to performing at the level that you need, but I want to have an interactive dialogue about what might help make that possible. I think it’s a time to put it on the table, because my fear is if you don’t, you just try to not share that you’ve got needs, that you might be on the path out the door, and I don’t want that for you. For the second question, where the individual wants to exit but wants to do a good job between now and then, consider putting together your thoughts and bullets on one page, so that you can go in prepared for this discussion with your boss. I would start that conversation with how much I respect the organization and respect my boss. I would mention the good things that I’ve contributed while I was there, and then obviously take responsibility for the fact you realize that you don’t think you’re the right person for this job anymore. Maybe the job has changed, maybe you’ve changed, whatever, I just, I don’t think I’m the right person to be here. Say that you would like to make this a win win and work on a mutual parting that benefits both the company and you. I would come in with a timeline suggestion, two weeks, three weeks, probably no more than four weeks, so that they have time to post the job, hopefully hire or promote someone into it, and that you can offer to do knowledge transfer. Maybe they don’t want you to meet with the new hire, that’s fine. But you can certainly put together all the processes and procedures that you use all the time, that would be a good knowledge transfer instrument. Be sure and share the specific assignments that you will wrap up and how you will help with that knowledge transfer. Now this may not work out, this conversation may not go anywhere, but I think the odds are really good that this talk may destress the situation and get you and your manager working together on a professional departure plan. JoDee, anything else you might add?

JoDee 38:11
No, I totally agree with you. I just think that I understand how difficult that can be. I – most of us think – I can tell you, I left a job without… I did give them plenty of notice, but I really took them off guard when I said hey, you know, I’m, I took a new job, I accepted a new job already. And they were like, why didn’t you come to us and talk to us or, you know, that they might have even helped me find a new role. But you have this fear that, you know, they might let you go as soon as you share that you’re looking for something else. But maybe they know of something within the organization, or maybe they can restructure your role, so, yeah.

Susan 39:02
No, I think that’s very fair. I’ve talked to a number of people who, they know things aren’t going well at their job. They know it, and they’re filled with such stress and anxiety. And when they make the decision, like this listener has, that I know I need to leave, but I want to do it in a graceful way because I need to find another job, every single time that they sit down and talk to their boss and say, listen, let’s talk through how I’m going to leave, they get an immediate boost of relief.

JoDee 39:27

Susan 39:27
Because maybe you’re still there. Maybe they walk you out. I mean, it’s possible. Or you’re there another week, two weeks, another month, who knows how long. You’re going to feel better because you’re on the path to better. You’re on the path to better. You’re miserable where you are. Let’s start focusing on the future. So listener, I hope that helps. If you want to, we’d love to hear from you hear how things turn out.

JoDee 39:46

Susan 39:47
It’s time for in the news. There was an article in SHRM HR Magazine, Winter 2023, entitled “Keeping the Faith” by Teresa Agovino. The EEOC reported that 18.8% of EEOC charges for the fiscal year ending September 30, 2022, were for religious discrimination. That is almost one in five charges. JoDee, this really surprised me, as most of the charges I hear about are for race, gender, disability, or age. I rarely hear about religious discrimination.

JoDee 40:23
Me too.

Susan 40:24
Very surprising. I think it’s worth our sharing the tips that Theresa Agovino included in her article so our business leader and HR professional listeners can consider how they might make their workplaces more JoyPowered® and religiously inclusive. The article’s suggestions include…

JoDee 40:42
Number one, consult multifaith calendars before scheduling any vital or mandatory meetings so that you don’t conflict with religious holidays.

Susan 40:57
I really think that is sensitive and important. Number two, when picking menus for your cafeteria, if you’re involved in that, or dining events, maybe you’re taking everyone out to dinner, take into account you may have staff with, with religious dietary needs. So try to be sensitive there.

JoDee 41:13
Yes. And consider creating a quiet space for prayer, reflection, or meditation.

Susan 41:21
Number four, communicate the process for requesting religious accommodations and train your managers on how to gracefully respond to those requests. I’ve seen some really great policies, but I’ve seen managers just really butcher it because it’s the first and only time someone’s asked them about something religious and they really fumble. So make sure that you’re equipping your managers to answer in the way you want them to.

JoDee 41:43
Number five, consider supporting employee resource groups or business resource groups focused on faith along with other groups the organizations may have that are gender, age, disability, ethnicity, veteran, etc. related.

Susan 42:03
Make sure your company policies are compliant and that your desire to grant sincere requests are well known unless doing so would result in substantial hardship.

JoDee 42:15
Consider granting personal days to allow employees to honor religious holidays without eating up their vacation time. I tell you, I worked for a company over 20 years ago that had, there were a lot of Jewish people at the firm, and so we had set holidays, but then we had two floating holidays that you could use for, for Jewish holidays or for extra holiday – you know, maybe a Christmas Eve that wasn’t officially a day off, and I really liked that approach.

Susan 43:00
Yeah, very good idea. Very good. I think these are solid ideas and worth having discussions about in the workplace.

JoDee 43:06
Well, thanks for listening today, and make it a JoyPowered® day.

Susan 43:12
Thank you. If you would like SHRM recertification credit for listening to this podcast, please visit You’ll find an evaluation of the podcast and once you complete the evaluation, you will see the SHRM recertification credit code and a link to a proof of participation certificate. Again, that’s Thank you for listening, and thanks for your dedication to the HR profession.

JoDee 43:40
If you liked the show, please tell a few friends about us and let us know what you thought by leaving us a rating or review on Apple Podcasts. You can find more information on our podcast, our books, our blogs, and more at We’re @JoyPowered on Instagram, LinkedIn, and Facebook and you can send us an email at Make it a JoyPowered® day.

Emily Miller
Emily Miller
Emily works behind the scenes at JoyPowered, helping to edit and publish the books, producing the podcast, and running the website and social media.

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