Unstable Employees, Direct Threats and the ADA

I opened my email this morning to find the following question from fellow blogger The Evil HR Lady:

As you probably know, I’m an avid reader, even though I’ve never lived in Ohio, although I have been to two weddings there, so that must count for something.


I've been reading about Jared Lee Loughner--the Arizona shooter and came across the e-mails written by a class member who thought Loughner was dangerous here: http://voices.washingtonpost.com/44/2011/01/jared-loughners-behavior-recor.html?hpid=topnews


My question for you, the employment lawyer, is given ADA protections, if I notice an employee becoming increasingly unstable, what can I do about it?


I’d love to read your thoughts on this.

Instead of responding directly, I thought I’d share my thoughts with everyone.

The ADA contains a specific exception for employees who pose a “direct threat.” The statute defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The ADA’s regulations require that the determination that an individual poses a direct threat must be “based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Employers must base this assessment on either “a reasonable medical judgment that relies on the most current medical knowledge” or “on the best available objective evidence.” In making this determination, employers should rely on the following four factors:

1. The duration of the risk;
2. The nature and severity of the potential harm;
3. The likelihood that the potential harm will occur; and
4. The imminence of the potential harm.

Palmer v. Circuit Court of Cook County (7th Cir. 1997) succinctly explains the Hobson’s choice employers face when deciding whether to retain a potentially violent employee. Since I can’t say it any better, I’ll just quote from the opinion:

The [ADA] does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor’s edge—in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. The Act protects only “qualified” employees, that is, employees qualified to do the job for which they were hired; and threatening other employees disqualifies one….
It is true that an employer has a statutory duty to make a “reasonable accommodation” to an employee’s disability, that is, an adjustment in working conditions to enable the employee to overcome his disability, if the employer can do this without “undue hardship.” … But we cannot believe that this duty runs in favor of employees who commit or threaten to commit violent acts…. The retention of such an employee would cause justifiable anxiety to coworkers and supervisors. It would be unreasonable to demand of the employer either that it force its employees to put up with this or that it station guards to prevent the mentally disturbed employee from getting out of hand.

To sum up and answer the question posed, employers faced with a legitimate and potentially dangerous employee need not wait for the powder keg to explode. Instead, employers can treat the employee as a “direct threat” and separate the individual from employment.
A few additional practical points to consider:

1. Prior to the termination, obtain written statements from co-workers, supervisors, and managers documenting all threatening behavior.
   
2. The severity of threat is proportional to the duration of the risk. In other words, the more real the risk the less amount of time you have to allow it in your workplace.
   
3. Typically, I’m opposed to security escorts of terminated employees. The termination of an employee who poses a direct threat for violence is the exception.
   
4. Consider carrying out the termination as late in the work day, and work week, as possible. This timing will create and artificial cooling-off period and help limit the risk that the employee returns to do harm.
   
5. Put the local police department on notice. Also consider a private security detail for a period of time until you are reasonably certain the employee is not going to return to cause harm.
   

Finally, my thought and prayers are with everyone in Tucson as they mourn, fight for their lives, cope with what happened, and start the healing process.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Get Your Bottlenecks Worked Out Now

I love Dianne Crampton's work!  It is insightful and very spot on.  I was honored that she sent me an advance of her new book coming out; Tigers Among Us: Winning Business Team Cultures and Why They Thrive.  We've had several discussions about Dianne adapting her book to nonprofits and while I think it would be exciting, more nonprofits have got to start seeing themselves as "business enterprises."  It's not enough to do good, it is imperative that the good you do succeeds.  For business and nonprofit, the past couple of years have been difficult, but it won't always be so and now is the time to fine tune, or "get your bottlenecks" worked out.  At the core of Dianne's work is always a discussion about corporate culture and how to empower people to be their best.  Think about your bottlenecks, your culture and investigate Dianne's website.  Plenty of good, applicable advice there.  Bunnie

Get Your Bottlenecks Worked Out Now

by Dianne Crampton, Tigers Among Us

Two years ago, Alan Beaulieu – principal at the Institute for Trend Research – predicted that the United States and its global partners would be heading into a deep recession, including a stock market correction. This notion differed greatly from mainstream economists, including those at the Federal Reserve Bank.


On January 22, 2010 at the Central Oregon Economic Development Business Forecast luncheon, Beaulieu offered a new prognosis for the years 2010, 2011 and 2012. “Get your bottlenecks worked out now,” was his advice to business owners.

Beaulieu, armed with graphs and 30 year data streams, is predicting a modest rise in consumer spending in 2010 followed by an increase in demand by 20 percent in 2011, spurring higher oil and gas prices.

Therefore, 2010 is the time to accomplish the following activities:

-- Refine business and manufacturing procedures.

-- Correct work flow and manufacturing bottlenecks.

-- Purchase and upgrade equipment.

-- Build team capacity through cross functional training and team development.

-- Resolve business culture problems to improve team morale and productivity.

-- Get the core business functions in alignment.

-- Spend money on marketing and advertising.

These activities, says Beaulieu, are for courageous leaders to fund now. In doing so, prepared companies will be ready for 20 percent and higher growth due to increased demand and reduced competition from businesses that did not prepare.

Another prediction is that inflation will rise in 2011. This means that interest rates will increase with demand. Therefore, businesses that are upgrading and getting the kinks out now are doing so with lower cost dollars.

Given the predictions, as a business leader what does this mean for you?

Some leaders are holding onto their businesses by threads. The past two years have been brutal. For many, they still do not see any light at the end of the tunnel and are ready to sell their businesses or lock the doors.

This means that businesses will be up for sale or competition will decrease at a time when values are at an all time low. As an excellent way to expand, purchasing existing businesses does make sense when business functions are aligned and the purchaser’s business culture is held true to course and not allowed to waffle during expansion.

In TIGERS Among Us: Winning Business Team Cultures And Why They Thrive (2010, Three Creeks Publishing, TigersAmongUs.com), team culture consultant, Dianne Crampton, gives leaders and teams the framework for team culture refinement so that expanding businesses do not compromise their cultures.

According to Crampton, “Consciously choosing a business personality, or way of being, is one of the most important decisions a business founder or leader can make, and small business owners and entrepreneurs creating new companies often overlook it. It is also often neglected in business mergers and acquisitions or in any planning scenario focused on short-term returns rather than long-term results.” Crampton adds, “Culture is a critical part of the strategic planning process. It helps an organization determine, through core value demonstrations, what it will be like to work in the business and to do business with it.”

Ultimately, according to Crampton, many acquisitions fizzle or drain resources away from growth when human resource problems could have been avoided through proper planning and culture preparation. Therefore, in the first quarter of 2010, leaders who take the time to encourage their employees with an accurate accounting of their business solvency will lay the foundation for growth. Likewise, leaders can bolster their employees’ spirits by producing a list of initiatives that show employees how their daily contributions build greater stability so that the company is prepared to spring forward without a sputter.
 Finally, if businesses have been scaled back, now is the time to fund marketing budgets and add back support services for those business functions that will be needed to manage growth. This can be accomplished through employee cross training, by analyzing skills that will be needed and developing existing employees, merging job functions, and by hiring temporary workers for entry level positions.

What this means for existing employees is that now is the time to develop their skills so that your business is more scalable and can do more with less through entry level employees, which according to Beaulieu’s predictions could start as early as fourth quarter 2010.

Cultures That Nurture Commitment, Enthusiasm and Creativity

I once worked in a nonprofit in which the behavior of the day was back-stabbing, one-upmanship, intrigue and gossip. This behavior was encouraged by the Executive Director who seemed to take great pleasure in pitting people against one another. It really was a toxic environment. When I became an Executive Director of a national organization, I was determined that the culture I created would be collegial, supportive and cooperative. One of the things I discovered was that you can get a lot of work out of people who are happy in their job. And a happy crew made me happy. Dianne Crampton writes about core values that should be practised in every organization, not for profit or for profit. A good read for you, your employees and your Board Members. Bunnie

Cultures That Nurture Commitment, Enthusiasm and Creativity

By Dianne Crampton, President TIGERS Success Series

What is necessary to build an ethical, quality-focused, productive, motivated, and enthusiastic group of people? This is a question I asked before entering a Masters program in Organizational Leadership in 1987.

What I discovered was interesting. Emerging from business, education and psychology group dynamic studies were six repeatable principles – trust, interdependence, genuineness, empathy, risk and success -- TIGERS. What I also discovered is that these themes are anchored by behaviors that are easily recognized by how people treat one another and the organizations they serve.

Later, two independent validation studies concluded that these values are reliable, measurable and predictive. This means that if the values are present in an organization’s culture there will be predictable outcomes. If they are not there will also be predictable outcomes. The first, however, produces a culture that stimulates commitment, enthusiasm, creativity, and high levels of collaboration and teamwork among leaders and their teams.

Take for example, trust. Trust is a core human need. It is the belief and confidence in the integrity, reliability and fairness of a person or group.

As a core need, it is necessary for a person to grow into their full potential. In other words, people need to be able to trust one another and the groups they serve in order to be creative, motivated, committed, willing to collaborate, and able to resolve conflict so that they can forgive when problems arise.

Trust and the other five values are also interdependent with the three management functions that support the service the group performs – workforce, strategies and systems.
This means that if one of these functions is out of alignment, the others will be, too. The result is reduced productivity and damaged morale.

For example, if systems (how you do things) are out of alignment with strategies (what you do) and workforce (proper staffing levels) what will be evident is overworked staff and insufficient systems. If the behaviors that support trust, interdependence, genuineness, empathy, risk and success are apparent then collaboration, information sharing, and problem solving among all employees will help bring the business functions into alignment.

If distrust, competition and lack of input from employees exist, strategic goals are jeopardized. Morale will be low. And unbalanced work loads with unsustainable systems will produce stress for employees, which reduce creativity, enthusiasm and commitment.

An example is relying on grants alone for funding service goals without regard for strategies and systems that support ethical and sustainable workforce issues (health care, retirement and fair compensation). This means that the values trust, empathy, interdependence, and risk would be low.

Therefore, the values trust, interdependence, genuineness, empathy, risk and success addresses core principles people need to work collaboratively and to their highest potential, which translates into productivity for the organizations they serve.

One or all of these values may be named in the organization’s operational value system or not. Either way, the behaviors that support them are measurable and support a culture that nurtures ethical, quality-focused, productive, enthusiastic, and creative employees or not.

A free white paper is available at http://www.corevalues.com/ that explains the six values and behaviors that support and undermine them.

Dianne Crampton has been working with motivated leaders and their teams helping them to consistently achieve goals with high levels of collaboration and teamwork for over 20 years. She is a published author, speaker, team consultant, leadership coach and president of TIGERS Success Series. She was nominated for Inc. Magazines regional entrepreneurial award for developing a game that teaches the six values and behaviors to leaders and teams. To get more information, go to http://www.corevalues.com/.