Happy New Year to you all! (even though Larry David says we are only allowed to say that for the first three days of the year). It’s my first MMB of the year, so I invoked a tolling provision. Hope you all had a good holiday break, which now seems months ago. I am in my second year of doing these Briefings, and for those who have been along on this ride for a while, thanks for all of the support. I added a few new folks recently, so welcome aboard. Having this platform to disseminate ongoing communication, updates, and insights to you all means more than you know. Getting your feedback is everything.
HOW WE ALL LOOKING FOR 2023?
I don’t have to tell you all, 2022 was a bit of a hot mess. How many times did I close these Mondays by reminding you all to take deep breaths or give your employees and yourselves extra grace? It was a tough year for many people. Hey, we started out the year with those awful Omicron numbers and at least half my clients dealing with outbreaks. Many of us had personal issues, me included – I lost my mom a year ago this week. And I know I am not alone. As I have said before, many came out of this pandemic battling some sort of PTSD.
BUT . . . that was then. And while a year does not change everything, it does change a lot of things. And look at how far we have come from last holiday season. Notwithstanding the rain and persistent cold and flu making the rounds, the COVID numbers stayed remarkable low. Retail stores reported strong sales, and most of the malls I visited were extremely busy. I was overwhelmed to see an incredible amount of people ice skating downtown right before Christmas Eve at Pershing Square. In LOS ANGELES! We had a full house at my home for NYE to watch the ball drop, despite the downpour, and toasted the fact that we were finally able to be together in person again after far too long.
Many of us who had been working fully remote have now been “back” for all or better part of the year, or adjusting to hybrid life. While the economic forecast is still somewhat guarded for the coming year, many of my clients are quietly reporting to me that they are in growth mode, in several sectors, including manufacturing, retail, and hospitality. As I will report below regarding Cal/OSHA, we are officially out of “pandemic” mode and into “endemic” now, which means we can officially put COVID into the rearview mirror in many ways. I noticed that the Rose Parade adopted the theme “Turning the Corner” for 2023. I don’t think that was a coincidence. For many of us, as employers, business operators, parents, and just humans, I think 2023 may be the year we can finally, truly, turn that corner and get back to a REAL normal again. And look forward.
PUTTING COVID BEHIND US, WHAT DOES THAT MEAN TO EMPLOYERS?
So speaking of COVID, as I said above, Cal/OSHA finally made note that we are officially no longer in pandemic condition, which means that different rules will apply to employers. I am copying the link below, in case any of you really want to read for yourself, but the upshot is that employers will no longer have to maintain a separate COVID Prevention Plan (hurray!). The rules regarding COVID safety should instead be including as part of your regular Injury Illness Prevention Plans. Most of the notification requirements are also softened, as are the contact tracing requirements. Most of it will now be much more informal, as COVID will be treated more like another version of the flu. Again, the details will be confirmed in the new permanent regulations, following a vote to be held later this month. Visit this link for details.
However, one of the reasons that the COVID numbers were as low as they were was because of the heightened sensitivity to immunity and cleanliness. You all should keep encouraging your employees to stay healthy, wash their hands, use sanitizer, wear masks if and when appropriate, keep up their vaccinations, and stay out of the workplace when sick. Many of you kept your COVID numbers down during the height of the outbreaks because of these good practices, and we should continue to manage our workplaces accordingly to keep our employees and our communities safe as we transition out of the pandemic phase.
DEALING WITH ANGRY EMPLOYEES
Finally, I just took a call from a client that involved a scenario which occurs relatively frequently, and it sparked the idea for a subject to share here. The particulars were not relevant – it involved a version of a scenario that happens to most of you. You have a disgruntled employee who starts to complain about one thing or another. They don’t like their manager; they are upset about their pay; they are “stirring the pot.” You aren’t even sure what is bothering this employee exactly. They don’t think they are paid enough. You are hearing it through the grapevine perhaps through your managers, or maybe this employee is leaving you messages or texts or emails. Or maybe they are even sending company-wide emails. They are talking to other employees, maybe even trying to get other employees to leave or go along with them.
You know they are going to leave and sue. You really want to fire them. They have broken the chain of command. After all, they have complained to other employees. That should be reason, right? They should have come to HR instead of spreading all this vicious gossip. That has to be against company policy, right? And what about threatening to sue? Isn’t that illegal? Can’t you fire them for that? But wait . . you need them right now. Can it wait two more weeks? Or a month?
Okay. I actually think I have taken four or five of these calls in the last week, so a few of you may think this is you.
So let’s back up and unpack the above situation(s). First, and most important, try to take the emotion out of whatever is going on. You are a business owner/manager, HR. You have to be the one in control here, not the one who is reacting to your employee’s anger. This employee did not leave and sue (at least not yet), which is really what employees do if something is terribly wrong and unlawful. They are still there, crying out for attention for some reason. So let’s get some information out of this situation while they are still there. We may ultimately need to part ways with this person, and this person may be disruptive (and we may need to tap that down,(respectively and lawfully), but we also need to quickly assess what’s going on and not just react.
Second, (and this really is just as important as the first point) we cannot just “fire” people who complain because they are complaining or threatening to sue. So that goes out the window anyway. It’s called whistleblowing. Or retaliation under the Fair Employment & Housing Act or the Labor Code (or similar federal laws). Or having a protected right under the National Labor Relations Act to speak to their co-workers about the terms and condition of their workplace. Or a bunch of other employment laws that they keep passing. So no firing. And they all know that. They ALL know that. They actually set you up with that. They lay traps for you. Don’t go there.
So, knowing you can’t just go fire them for being little stinkers and causing havoc or just being angry, maybe there is another approach. Maybe we should try to find out why they are so upset? Maybe we should try talking to them. Calmly, talking to them. Get some information out of them. What exactly IS the source of their frustration, anyway? In other words, give them a soapbox.
Now, why in the world do you want to give an angry, upset, bitter employee a platform? They are crazy. They don’t know what they are talking about – they are saying you mistreat your employees! You don’t do that. They are saying you don’t give breaks, you underpay, you owe a bonus you don’t owe, whatever. You know you don’t do that. Your first instinct is to argue with them and tell them they are totally wrong.
And I am telling you the complete opposite. Be quiet and let them talk. In fact, let them talk and spew and write and ramble. Let them get it ALL out. They may get it off their chest and NEVER feel the need to go see a lawyer. In many cases, getting that soapbox is why they go see that lawyer. This may diffuse that need. And after they are done, after they have gotten it ALL out, maybe you will find that they are mistaken and you can clear up whatever was the misunderstanding.
Or, maybe you will learn that at one of your locations, you had a manager writing off time. That ALSO happens, by the way. More times than I can tell you. Maybe you will find out something you really do need to know.
So you always want to listen. You never know what you may learn.
And keep this in mind. Almost every lawsuit we see was started by some disgruntled employee. When we get those lawsuits, my clients say “oh yeah, I know that one. He/she was grumbling out the door, or threatening us that they would hear from us,” something like that. Not all of them. But many of them. So these “angry” employees, when they do eventually go, often turn into those “plaintiffs,” often in big PAGA or wage and hour suits.
So sometimes, if you listen to them when they are still employed, you can get to a point where you agree to disagree, and agree that this employee just isn’t happy here. Maybe what’s really going on is this employee is just burnt out and needs to take a break. But you have a truly respectful conversation, where you do a lot of listening, and you agree to part ways as professionals, and you pay a nice little severance package to help transition them somewhere else. And it may be worth it for you to do that in some circumstances. Let’s face it, that might be a small price to pay.
But every one of these circumstances is different. And you won’t know what your circumstances are until you look at each one, with a critical, non-emotional eye, and do a lot of listening. And then assessment. The latter hopefully with a knowledgeable lawyer. But always remember, as the employer, you are the boss, and therefore, never should just be reacting to or out of emotion. You’re the one who is slowly and carefully taking control of situations.
And on that note, my favorite “bosses,” I will leave you all to the start of your 2023. I hope you all stay safe and dry this rainy week in California. We are still pumping out handbook updates and catching a lot of folks up on their harassment training needs, so if you need any of that, you know where to find me. Usually hunkered down these days, staying dry behind the reinforced bunkers in Laurel Canyon!
#StandWithUkraine