The National Labor Relations Board (NLRB) just made union organizing that much easier for workers who want to organize their workforces, issuing both a long-awaited regulation and a controversial decision that will transform the landscape of labor law as we know it.

On Dec. 11, 2014, the NLRB ruled that employees have the right to use their employer’s email system on nonworking time to discuss wages, hours, conditions of employment and even union organizing. The very next day, the NLRB finally implemented its “quickie election” rules, which will speed up union elections while requiring employers to turn over personal email addresses and telephone numbers to union organizers. These changes will have a profound impact on union organizing tactics and representation elections, and you can expect an immediate increase in union organizing activity in 2015.

Email systems are fair game
The email ruling came from a case involving Purple Communications (PC), a provider of sign-language interpretation services, which has an electronic communications policy that limited the use of its computers, email systems and other company equipment to business purposes only. Many companies have similar policies that prohibit employees from using work systems and equipment for personal emails, and from engaging in activities on behalf of organizations with no business affiliation with the company.

Several years ago, a union petitioned to represent workers at seven of PC’s call centers, but lost the elections. The union challenged the result by asserting that the policy interfered with the workers’ freedom of choice in the elections. The NLRB decided that employees who have rightful access to their employer’s email system in the course of their work have a presumptive right to use the email system to engage in protected communications on nonworking time. This means that an employer may not totally ban personal use of its email system by employees without running afoul of this new ruling.

While employers can still monitor employee use of computers and email for legitimate management reasons (such as productivity, preventing harassment or other potential problematic behaviors, etc.), the NLRB warned that employers cannot increase its monitoring during a union organizing campaign or focus monitoring efforts on union activists or protected conduct.

“Quickie elections” arriving soon
The accelerated election rules – also known as “quickie election” rules in some circles – had long been anticipated. In fact, the NLRB had previously passed a similar rule that was struck down by the court system on a technicality before being implemented.

There appears to be no such saving grace for employers this time, however, and there seems to be nothing in the way of these rules being implemented in final form in the coming months. The clear objective for these new rules is to expedite the time between when a petition is filed and an election is held, thereby reducing the time for employers to combat an election drive, and dramatically increasing the chances of union-organizing success.

Starting April 14, besides facing a very short time frame before a union election, employers have a host of other new challenges to overcome. First, employers will have to provide union organizers with available personal email addresses and telephone numbers for all eligible voters in the workplace, which should allow unions to have more effective communications with their target voters earlier in the process.

Further, there will only be a limited number of procedural objections that employers can lodge before an election, and the time frame for the limited objections will shrink. Finally, employers that lose any of these challenges cannot delay the process by seeking an immediate appeal, as those will now be tabled pending the election itself.

With these roadblocks out of the way, unions will be able to take advantage of smooth sailing and increase their chances of success by a significant degree.

What does this all mean?

The bottom line is that things just got dramatically easier for workers to organize into unions, and those companies that want to stay union-free will have their work cut out for them. Employers that had thought they could wait to prepare for a possible election campaign will need to get their ducks in a row now, because delaying preparations until the unions make themselves known will generally be too late.

Employee use of company email systems for union organizing efforts can be a game changer, and quicker elections mean more employees will be voting on union representation on the heels of the negative emotions that drove the organizing activity. Therefore, it is also important to employers to improve communications with their workforce now in order to address pending workforce problems. Workers who feel as if they have no voice now will be more likely to be attracted to unions that promise to bring about the changes that they are seeking.

These are just the first two dominoes to fall, and most expect several others to fall in the coming months as the NLRB gains momentum. There is no question that the new changes will provide a boost to unions that are eager to stem the tide of membership decline, and you can expect an immediate uptick in organizing activity as a result.

Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.

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Businesses across the state received a wake-up call last month after a Eugene convenience store was slapped with a $60,000 penalty by the state after the Oregon Bureau of Labor and Industries found that the store illegally banned service dogs from the premises. The story should serve as a warning to all business owners who open their doors to the public that they need to learn, understand and apply some very strict and unforgiving rules regarding service animals.

Michel Hilt-Hayden, a woman living in Eugene, each day has to battle through a number of physical and mental impairments. She has a visual impairment that limits her sight to only 6 to 10 feet and robs her of her depth perception; she also has a hearing impairment that requires her to wear a hearing aid. She was also diagnosed as mentally ill when she was a teenager, with PTSD, agoraphobia and schizophrenia. Her mental conditions sometimes result in debilitating panic attacks.

In order to assist with daily living functions and provide care in emergencies, Hilt-Hayden trained one of her dogs (“Panda”) to perform tasks for her, including chest compressions during panic attacks and visual guidance outdoors. Panda was trained in 2007, but due to advancing age and declining physical condition, became unable to provide full-time care starting in 2011.

At that point, Hilt-Hayden acquired another dog (“Contessa”) for the purpose of training it into a service animal. By 2012 Contessa was also living with Hilt-Hayden and Panda and providing services. Contessa continued to be trained into the service animal role, and therefore Hilt-Hayden often took both Panda and Contessa with her on excursions so that the younger dog could learn by example.

During one such excursion, on April 17, 2013, Hilt-Hayden walked into the Duck Stop Market with both Panda and Contessa in order to buy milk. According to the case’s Final Order, a store clerk confronted Hilt-Hayden and told her that dogs – including service dogs – were not allowed in the store, and suggested that she use the drive-up window. The clerk then wrote in the daily store log that she told the customer that no dogs were allowed and that Hilt-Hayden was “not happy – TOO BAD!”

The next day Hilt-Hayden attempted to return with only Contessa, but this time was physically blocked from entering by a clerk, who told her “You’re not welcome here; your dog needs to leave.” Police responded to a call, calmed the situation down and suggested that Hilt-Hayden talk to the store owner.

The following day Hilt-Hayden had an amicable conversation with the store owner, and eventually the owner told her she would be allowed in the store only if she was accompanied by one single service dog, and not both.

Hilt-Hayden was not satisfied with that decision and initiated a disability discrimination claim with BOLI. The market’s main defense to the charge was that Contessa was not truly a “service animal” under Oregon law because her training was not complete. After a four-day hearing, the agency issued a 62-page ruling on Nov. 6, finding that Duck Stop Market discriminated against Hilt-Hayden, rejecting the business’ defense, and awarding Hilt-Hayden $60,000 to compensate her for the emotional trauma she sustained during her encounters.

Most business owners recognize that they have an obligation to accommodate service animals; many have signs on their front doors welcoming service animals even if there is an express “no dogs allowed” policy. Where some businesses are confused, however, is where they can draw the line. What exactly is a service dog? How would we know if the animal is a pet or a service animal? What can we do if we are uncertain about the situation? This case and the Final Order issued provide some helpful tips for all businesses that may have to deal with such situations.

First and foremost, there are very strict rules about what one can ask animals’ owners when they enter a business. One can begin by asking if the animal is a “service animal.” If the person says no, then a business owner has every right to exclude it. If the answer is yes, one can follow up by asking what duties the service animal performs for them (unless it is patently obvious, such as a blind person with a seeing-eye dog). That’s it.

People aren’t allowed to have the individual perform a demonstration (especially if the service dog is trained to respond to some medical emergency). Also, a business owner can’t require the animal to wear a special vest – although many might have such gear, it is not required under the law. Also, one can’t ask to see special certifications or training licenses, because some animals may be “trained” at home and not have such documentation.

Therefore, in most situations, if the person provides adequate responses to the above questions, the best course of action is to allow them on the premises. One can monitor to make sure the animal stays in control and does not act in a disruptive manner (barking, snarling, engaging with other customers or staff, making an unnecessary mess). And if the animal becomes disruptive one can ask its owner to leave. Beyond that, businesses ought to welcome service animals and the customers who accompany them, recognizing that it is good business (and the law) to accommodate them.

Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.

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Business leaders make decisions every day, all day long. Some decisions are made in split seconds; others are agonized over for weeks or months. The act of decision-making is a cognitive process resulting in a selection of a belief or course of action among several possibilities (thanks Wikipedia).

Generally speaking, when making a decision you are trying to mitigate an issue or capitalize on an opportunity. It may be in response to what’s happening within the company – an employee performance issue or a process breakdown; or it may be in response to a trigger outside of the company – a new RFP on the streets or a change in health care laws.

For many people, this time of year is when next year’s road map is planned. Decisions are made as to how the business will grow and what priorities will be. Essentially, folks are problem-solving and strategizing.

A simple decision-making process:

1. Identify the issue or opportunity. What is the issue you are trying to resolve? Is it the root cause or just the symptom? Establish a framework for what you are trying to achieve. By visualizing and articulating what the ideal outcome would be, you gain clarity about what decision needs to be made.

2. Gather and analyze the facts. Capture the essence of the situation and determine what you need to know to make a decision. What’s relevant? Who can be of assistance in the process because of their expertise, experience, familiarity or objectivity?

3. Develop and evaluate alternatives. Take off the blinders of habitual responses and open up some creative thinking. Practice “what if” scenarios to build out ideas and possibilities. Examine the potential benefits and pitfalls of your options – consider the reverberation of unintended consequences.

4. Make your decision.

5. Act on it. Decisions need to be communicated to all parties impacted. How you do this will impact effectiveness of implementation. Be clear on what was decided and why, as well as who is responsible for what. This provides clarity and direction. It also builds credibility.

6. Mitigate risks and keep learning. Our work worlds are fast-paced, dynamic environments. We need to make the best decisions we can with the information we have. If we appropriately analyze the alternatives, we are in the best possible position to mitigate the anticipated risks. Not all things can be anticipated; we need to keep sharpening our skills – paying attention to what works and what doesn’t.

Independent or group decision-making?

Knowing when to make a decision unilaterally and when to include others in the process can be critical to its success. Not everything requires a group discussion! However, by involving other team members in the decision-making process, you increase their buy-in, sense of ownership and their connection and accountability for the results. It fuels the sense of team and camaraderie that is so vital to productivity. It also opens up the discussion for new perspectives and potentially better thought-out solutions and consequences. People want to contribute and often have great ideas to share.

The potential downside of group decision-making is that it can be time-consuming. In an attempt to please everyone, the solution may get watered down and be less effective or meaningful. There’s also the danger of “group think” – where momentum is created in the wrong direction or individual responsibility and creativity is inadvertently discouraged. The desire for cohesiveness and a quick decision may lead to a less-than-ideal decision. Finally, group decision-making may create a perception of ineffective leadership.

What hinders good, timely decision-making?

• Doubt; uncertainty about one’s capacity to make the decision.

• Fear of making the wrong decision; the belief that the perfect solution has to be made up front.

• Too many choices; with the plethora of options in our world, it’s easy to see how we can become overwhelmed and slip into the “analysis paralysis” trap.

• Overcomplicating it; making it harder than it needs to be.

• Accepting our assumptions as the “truth.”

• Overanalysis; exceedingly long phases of planning, information gathering with little to no added value.

• Uncertainty about our authority to make decisions.

• Too much emphasis on consensus building.

• Over-reliance on one’s own perspective and resistance to contributions from others.

• Rigid, formal or bureaucratic organizational culture that is overly reliant on process and does not value risk-taking.

• Lack of preparation; while it is good to be able to be agile, lack of thoughtful planning can sabotage good decision-making.

I asked a client who I see as a confident decision-maker on all things related to his business, “What makes an effective decision-maker?” His reply? “Someone who is willing to take the risk and make a decision. Once the decision is made, don’t look back but immediately go into risk mitigation mode.”

Ultimately, you are making a decision that you deem is good for the health of your company. How does your decision impact profitability, long-term resiliency and employee engagement? Is it aligned with your core values? Does your decision reflect these considerations?

Take the K Challenge: What decision are you avoiding making? Walk through the decision-making process. The cost of not making a decision can be more expensive than making an imperfect one.

Karen Natzel is a business therapist who helps leaders create healthy, vibrant and high-performing organizations. Contact her at 503-806-4361 or karen@natzel.net.

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When thinking of conflict in construction, one might consider contract disputes and change orders; or heated discussions on the jobsite; or frustrations between the office and the field. Jobsite conflict certainly has the potential to negatively impact a project’s schedule, budget and quality – but it also can wreak havoc with the safety culture.

As stated on Bing.com, “Conflict is a disagreement or clash between ideas, principles, agendas or people.” When two people hold opposing viewpoints, conflict often is a natural byproduct. If conflict is ignored or handled improperly, communication breakdowns and lower productivity can result; such situations also breed unhealthy relationships.

How conflict and safety are interrelated

Distractions. When unresolved conflict surrounds us, we tend to be unsettled and distracted. Our minds often process the issue repeatedly, attempting to unravel the story and work out the details. This is not only inefficient and ineffective, because you are having the conversation only with yourself, but it keeps you from paying attention to your surroundings.

Irritability. Conflict can stir up the emotions that make us irritable and impatient. In this state of mind, we can be careless and absentminded. These small moments can make the difference between executing safely, and executing haphazardly.

Deteriorating relationships. As indicated, when we allow conflict to go unaddressed, relationships suffer. Trust can deteriorate sometimes to the point that people lose a level of caring for the welfare of others. While it is unlikely anyone would intentionally create an unsafe environment, we can become negligent or inattentive. When we lose sight of each other as people who we want to see go home safely to their families, we fail to protect them at the highest standards.

Unattended emotions such as anger, frustration, hurt, and a feeling of being not being heard or respected can generate an apathetic culture. Not caring is dangerous to a safety culture. It can be a quick decline of tending to the details – those nuances that may trigger incidents.

Attitudes and approaches to conflict

There are two general camps of how we approach conflict – we either avoid it or tackle it head-on.

Avoidance only generates more layers of complexity – deepening misunderstandings and resentment. We create a litany of stories about what’s transpiring while stockpiling our ammunition about why that person is wrong and a jerk. Once we’ve built our well-constructed stories, it’s difficult to be open to a new perspective or reality.

Those people who claim to tackle conflict head-on often tend to bring ultimatums to the conversation, standing their ground on the issue rather than seeking resolution. They seem to care more about being right than understanding another’s perspective and creating buy-in or collaboration.

So, why do we avoid conflict? It can feel vulnerable, threatening and just plain uncomfortable. We don’t feel in control when we engage in it. We may perceive it as a threat to our position, as if someone is questioning our competence and decision-making. We get annoyed and impatient, particularly when we are certain we are right! Sometimes we avoid it because we don’t want to damage the relationship. Mostly, I suspect we avoid it because we don’t have the skills and experience to navigate conflict confidently and successfully.

Address conflict in a way that resolves issues and enriches relationships

Remembering that conflict is natural – and not inherently bad – is a workable starting point to address what most people resist. Conflict is also valuable. That’s where some of the best solutions come from because oftentimes critical issues are unearthed. It’s also where people develop a mutual, deeper understanding and appreciation for team members’ diverse experiences.

Identify what’s actually happening. Really understand the issue(s), assumptions, what’s at stake, the people impacted and your own emotions around it. Get clarity about the issue at hand and the impact.

Define common ground. What are you both committed to making happen? What shared business outcome can you agree on? Where are you aligned? When we remember the common goal, we can start a conversation on the same page.

Seek to understand the other’s perspective. Conflict frequently comes from misunderstandings. Become clear on each other’s perspectives, to the point that each person could articulate the other’s argument convincingly, to help create a more optimal solution. This approach helps incorporate a more comprehensive resolution and create buy-in – which will improve execution of any idea or decision.

Brainstorm possible solutions. This approach can be facilitated by asking open-ended questions. Both parties need to truly listen to the answers with the intent of resolving the issue – not just defending one’s position. Keep the end goal front and center.

Most construction companies genuinely want to foster a healthy and safe working environment. If addressing conflict isn’t already in safety toolbox talks, consider integrating it on a regular basis. It provides one more compelling reason to get to the root of what’s not working, produce better outcomes, improve relationships and prevent conflict from escalating into a safety issue.

Are you ready to address conflict in a new way? Join me and Jordan Ramis attorney Roger Lenneberg on Nov. 19, for a deeper dive into safety and conflict at SafeBuild Alliance‘s quarterly program at McMenamins’ Kennedy School. Learn more at www.safebuildalliance.com.

Karen Natzel is a business therapist who helps leaders create healthy, vibrant and high-performing organizations. Contact her at 503-806-4361 or karen@natzel.net. She is a member of SafeBuild Alliance – a nonprofit organization working to achieve incident-free construction projects through the transformation of workplace cultures. For more information or to join, visit www.safebuildalliance.com.

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The Ebola virus outbreak has captured the attention of the American public like few other stories have in recent memory. You can’t help but hear about the deadly illness and its apparent spread around the world on a daily basis. The stories are gripping and scary – a killer disease with no cure, no borders and nothing to stop it. Some employers are now wondering what they need to do in order to protect workers from the onslaught of this terrifying rampage.

The first thing all employers should do is take a deep breath and stop the panic. In the United States, Ebola is nowhere close to being a pandemic or even a national health crisis. Besides the fact that it is not easily spread, this virus is very controllable given the health care infrastructure and the resources our nation has at its disposal. Unless an employer sends workers on international travel, or is in the airline or health care industries, it likely will never have to deal with an Ebola situation.

That being said, employers across all fields should at least educate themselves about Ebola in the unlikely event they are caught up in the issue. The two most common questions I have been hearing from companies are: How do we keep our employees safe, and what do we do if we think one of our employees may have been exposed? Even if a company never sends its workers overseas, these same questions arise if a worker is about to take a personal trip to Africa, or if someone else who recently visited Africa will be on site in the near future.

The easiest way to explain to employers the best approach to these concerns is to recognize the balance between two federal workplace statutes: the Occupational Safety and Health Act and the Americans with Disabilities Act. On the one hand, OSHA is intended to protect workers, and all employers have a duty under the act to ensure that their employees are reasonably protected from all sorts of workplace hazards – including communicable diseases like Ebola. On the other hand, the ADA serves as a shield preventing employers from prying into the personal lives of workers, prohibiting unnecessary medical inquiries and barring workplace decisions motivated by irrational health concerns. Yes, you need to be cautious, but not at the expense of worker rights and privacy. So where do you draw the line?

An employer’s first priority is to ensure worker safety, and the easiest way to do this right now is to limit unnecessary international business travel. If a worker has done business or been on a personal trip in an area with high exposure rates, or if the company’s business is in one of the fields noted above, stay up to speed on the latest Centers for Disease Control and Prevention (CDC) communications.

The next priority is to ensure compliance with the ADA. The best way to stay on the right side of the law here is to make sure that any steps taken here with respect to employee medical information are based on concrete, objective data, and not spurned by fear, generalizations and stereotypes.

For example, if an employee has just returned from an African safari with his family, a company might walk itself into an ADA claim if it were to bar him from work for a 21-day quarantine period. Instead, if you know an employee has visited Africa, start by simply asking him where he has visited to determine the level of risk. You can follow up by asking the employee whether he has exhibited any virus symptoms and to keep you apprised if any symptoms appear.

Also, employers are permitted under the ADA to take an employee’s temperature at regular intervals, but only if this action is job-related and consistent with business necessity. In a case where a worker has been to Africa, or been exposed to someone with Ebola, or in a health care situation with possible disease-carriers, this standard is easily met.

Just don’t start giving blanket temperature exams to all employees without any real justification, because that’s when you’ll run afoul of the ADA. Only in very rare cases should a worker be barred from coming to work for the 21-day incubation period. And in such cases employers will most likely already be in touch with public health officials, given the heightened state of concern that will be present by that point.

As for handling the fear and concern that other employees might be feeling, the best thing to do is to reassure them that the company takes their health and safety very seriously and that active steps are being taken to ensure that they are not exposed to Ebola at work. Then share those steps with them; that should help comfort them and allay their fears.

If an employee refuses to come to work because of some legitimate or well-grounded fear of Ebola exposure, recognize that he or she might be protected under OSHA retaliation law or even the National Labor Relations Act and act accordingly; it is only when an employee is acting in bad faith (using Ebola as an excuse to take a few days off) that you should enforce attendance policies and others.

Like any other crisis, the Ebola scare will pass in time. But until then it’s up to you to ensure panic does not set in at your workplace and that you don’t walk yourself into a legal claim while trying to do the right thing.

Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.

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A recent court decision awarded workers’ compensation benefits to a worker who was injured during a company kickball game, causing employers across the country to ask many questions. Could this happen to us? Should we organize recreational activities for our employees at all? If so, what can we do to prevent this from happening? And should we cancel that dodgeball game we were considering? Here is a look at what happened and answers to these questions.

Stephen Whigham thought he came up with a good idea when he suggested the kickball game. He was the director of creative solutions for Jackson Dawson Communications, a marketing and public relations firm based in Greenville, S.C., and he attended bimonthly meetings with other managers where they batted around ideas to help improve company operations.

A frequent discussion centered on employee morale and team-building events, so when Whigham suggested a company kickball game, his bosses were all in. One of the company execs authorized him to spend almost $500 in company funds to secure a venue, print t-shirts, and buy drinks and snacks.

The big game was on a Friday afternoon, and about half of the company was able to attend. Whigham of course came ready to play. After one particularly good kick, Stephen was rounding the bases to the cheers of his colleagues when he jumped to avoid being tagged out by an opponent; unfortunately he landed awkwardly on his right leg and injured himself. This was no “pick yourself up and shake it off” kind of injury – Stephen shattered two bones in his leg, had to undergo two surgeries to repair the damage, and was told that he would eventually need a knee replacement to heal properly.

Whigham filed a workers’ comp claim in hopes of recovering his costs from his employer’s insurance carrier, but the state workers’ compensation commission denied his claim. The commission said that this was a recreational event outside of work hours that he was not required to attend, and that there was no benefit to the company other than general employee morale. Whigham appealed to the state Supreme Court, which ruled in his favor in late August.

The main reason the Supreme Court granted him the victory was because his employer implied that his participation at the event was required, which brought the activity within the “orbit of employment.” After all, he was the event’s organizer, and his boss testified during the legal proceedings that he expected Whigham to attend because he was the one who conceived, planned and organized the event. Because of this, the court found that his absence may have been considered a dereliction of duty and affected his standing at the company, thus taking it a step above true “voluntary” attendance.

Most states have similar rules excluding injuries occurring during pure recreational events from workers’ comp coverage, which means the average company picnic, party or sporting event (planned or impromptu) probably will not lead to company liability. What made this event different, obviously, is that Whigham was found to be implicitly forced to attend, removing it from the voluntary category.

As you can imagine, this means that the workers requested by company officials to attend recreational outings (organizers, party planners, event coordinators) are more likely to be considered performing work during these sessions and thus under workers’ comp coverage. For sporting events, be forewarned that if a star player or a “ringer” is invited to show up at the softball game in order to clinch an important victory over a rival competitor, he or she may be more likely considered under the workers’ comp umbrella.

Other factors that could lead to coverage include the time and location of the event: If it is held on company premises, and during regular work hours, coverage is more likely. Also, if the employer derives some sort of substantial benefit beyond the intangible value of improved employee health and morale, coverage is more likely. So, whereas a company-only event designed only for fun and camaraderie usually is outside of coverage, if this is more of a marketing activity – important clients or potential clients are invited, media coverage is invited to promote a charitable activity, etc. – the company may be more at risk of a workers’ comp scenario.

So, what’s the bottom line? Employers should continue to organize recreational events of all types. They foster employee morale, provide a valuable opportunity for employees in different departments to connect with each other, and demonstrate to workers that managers enjoy connecting with them.

However, recognize that a company can’t necessarily escape workers’ compensation claims just because an event is not happening at the workplace. A company may want to curtail particularly dangerous activities, understanding that getting someone to sign a release is not going to protect it from workers’ comp and even negligence claims depending on the scenario.

As for dodgeball? Proceed at your own risk.

Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.

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Habits are regularly repeated behavioral patterns. They become our routines and our comfort zones. It’s estimated that 40-45 percent of our daily lives are habitual. These patterns of behavior are repeated so frequently and embedded so deeply that they define us.

This is equally true of organizations. A company’s culture is a collection of attitudes and behaviors – shared habits – that define how it functions together. Organizationally speaking, habits are a manifestation of a company’s brand.

Our habits form our identity

If you think of a brand as a reputation, an organization’s habits are the building blocks. Habits are what people come to expect as to how an organization will behave. This includes how leaders go about their business, how they treat their colleagues and customers, whether agreements are kept, whether meetings start on time, whether there is follow-through on initiatives and how issues are addressed, etc. Tackling a habit change is an opportunity to reinvent a company identity. This is not a simple rebranding exercise, but an in-depth look at how a business operates and where its leaders want to make shifts.

Healthy vs. unhealthy

Healthy habits generate the kind of life experience that is in alignment with who people want to be. They produce results that make people feel good and help propel momentum. Unhealthy habits are unproductive, unsatisfying (ultimately) and stagnating. It stands to reason then, that a healthy company is based on people employing healthy workplace habits that are aligned with the organization’s vision and core values.

Keystone habits

So, if you want to lead change in your organization, which habit should you tackle first? Identify a few priorities and leverage them. New York Times business reporter Charles Duhigg, in his bestselling book “The Power of Habit,” emphasizes what he calls “keystone habits.” He explains, “The habits that matter most are the ones that, when they start to shift, dislodge and remake other patterns.” Focused attention on one habit can have ripple effects throughout an organization.

In our society, we often want quick wins. This is counterproductive because it perpetuates our frustrations about things not changing. Quick fixes and hopes of complete transformations actually keep us stuck in our patterns. Cultivating healthy habits requires us to reject immediate gratification in favor of long-term growth, health or integrity – and, ultimately, deeper satisfaction.

How long will this take? While pop culture contends a magical “21 days” to cultivate a habit, research indicates it can be more like two to eight months. The truth is that it depends on the behavior, the person/organization and the circumstances. It doesn’t really matter how long it takes – that time will still pass and you can either be on your way to a new pattern or stuck in the same old way of doing business.

Examine company habits

• Do you address issues directly and respectfully with each other?

• Do you provide clear and real-time feedback?

• Do you start and end meetings on time?

• Do you hold each other accountable for action items?

• How do you identify and manage priorities?

• Are you tackling what matters most, or only what’s urgent?

• Are you habitually in firefighting or reactionary mode?

• In your attempt to be in service to others, do you tend to overpromise?

• Do you have a habit of making agreements that you can’t keep – or can’t even remember you’ve made?

Start by understanding how habits emerge and what it takes to change them. (In “The Power of Habit” Duhigg defines the “habit loop” – cue, routine and reward. Working with the dynamic of this loop is key to transformation). Manage your expectations and commit to small, incremental improvements. We may not gain “quick wins” but we can create “small wins” – and those small wins can build momentum. Be sure to reward yourself and your team for new, positive behaviors.

Building habits is a journey and not a destination. You will make mistakes. Give yourself permission to do so. More importantly, encourage your team to do so – no worthy endeavor is ever pursued without missteps.

Develop strategies for getting back on track. Think of it as an experiment with the desired outcome of creating workable, productive and lasting ways of being a consummate professional and a vibrant, high-performing organization.

Take the K Challenge: Which unhealthy habit in your organization will you stop tolerating and start addressing in a new way?

Karen Natzel is a business therapist who helps leaders create healthy, vibrant and high-performing organizations. Contact her at 503-806-4361 or karen@natzel.net.

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A Hillsboro police officer who was fired for a series of interpersonal conflicts recently received some bad news from a federal appeals court. Although a jury had agreed with Matthew Weaving’s claim that he was fired for being disabled and should have been accommodated for his Attention Deficit Hyperactivity Disorder (ADHD), the appeals court reversed the decision and handed his employer a victory. Here’s what you need to know about this case:

Weaving was a police officer in Oregon for 14 years, and his tenure was littered with conflicts with co-workers. When he worked for the Beaverton Police Department from 1995 to 2004, he was criticized for being abrasive, forcefully outspoken, disgruntled and intimidating, and was even removed from a special assignment because of personality conflicts with co-workers. When he worked on an interagency task force with the FBI, a federal agent wrote a complaint letter to Weaving’s bosses addressing his communication problems and overly aggressive style.

Weaving left the BPD in 2004 and joined the Hillsboro Police Department, but the personality conflicts continued. Although he was promoted to sergeant in 2007 because of his technical skills as an officer, he received numerous complaints regarding his communication style.

In 2008, a fellow sergeant complained that Weaving was dumping too much work on him. Weaving responded by sending him an email where he described the workplace like a swimming pool with a deep end and a shallow end separated by a floating rope, and recommended to his co-worker that he “remain in the shallow end where you can splash around with the kids.” Weaving concluded the email by taunting the co-worker, saying he knew where he could find Weaving if he wanted to talk further: “I’m easy to locate. I’m in the deep end, so bring your water wings!”

In 2009, a formal investigation into Weaving’s behavior began after he verbally berated another officer over the open radio for all to hear; the resulting report concluded that Weaving was “tyrannical, unapproachable, belittling, demeaning, threatening, intimidating, arrogant and vindictive.” (Besides that, he was a great guy.) The city of Hillsboro terminated Weaving’s employment after receiving the report, determining that he did not possess adequate emotional intelligence to successfully work in a team environment.

Weaving filed a disability discrimination lawsuit against the city, claiming that he had been diagnosed with ADHD and should have been accommodated. During the investigation into Weaving’s behavior, he provided a doctor’s note confirming the diagnosis and requesting that he be allowed to continue working while he underwent treatment for his communication problems. He said that he had suffered from ADHD since childhood and just recently realized it might have been causing his interpersonal issues.

Because that request was denied, Weaving sued under the Americans with Disabilities Act (ADA). A federal jury ruled in Weaving’s favor and awarded him more than $775,000 in damages. The city appealed, and a few weeks ago the Court of Appeals for the Ninth Circuit (it hears appeals for most districts in the West, including Oregon, Washington and California) overturned the jury’s decision and awarded a victory to the employer.

The appeals court said that Weaving wasn’t considered “disabled” under the ADA and didn’t need to be accommodated; therefore he had no claim. It pointed out that Weaving was, in many ways, a skilled police officer. Although he may have had many issues getting along with others, the appeals court said that Weaving was not substantially limited in his ability to interact with others (as opposed to, say, someone with severe panic attacks who is housebound most of the day and barely functional as a result).

The court concluded by saying that every “cantankerous person” will not be deemed to be disabled, especially if there is proof that the person can engage in normal social interactions. One judge in summary said, “Weaving isn’t disabled; he’s just a jerk.”

It is widely expected that this case will be appealed up the chain, maybe even to the U.S. Supreme Court. Until then, what can employers take from this decision?

First and foremost, there is good news whenever a court decides that a plaintiff isn’t disabled under the meaning of the ADA. Ever since the law was amended very liberally in 2008, it has been very difficult for employers to win these kinds of cases.

Most importantly, this case upholds the principle that employers can enforce their employee standards as they relate to personal interactions, and not worry that an employee is going to blame their rudeness on their disability. Employers should draw very bright lines in their written policies prohibiting uncivil behavior and ill-mannered communications, and then train their managers to apply these rules consistently.

Employees should be provided with annual evaluations that honestly address co-worker interactions and constructively criticize problem areas while providing a road map for improvement. If things don’t get better, this case should provide some comfort in knowing that discipline (including termination) can be warranted if it goes too far.

If an employee tells the employer that he or she has a medical condition that may be interfering with his or her ability to remain polite and professional, the employer shouldn’t simply ignore it. Engagement in an interactive process with the employee may be worthwhile to see the evidence and get specific feedback on what is being requested.

As this case demonstrates, an employer won’t necessarily have to actually accommodate the employee depending on the situation, but it is possible that he or she will present possible solutions that make sense and can be implemented for a trial period. If it turns out the employee actually is disabled, the employer might have a duty to work with him or her to fashion a reasonable solution. But if it turns out the employee is just a jerk, this case could be the defense needed to fire the person.

Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.

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The day has finally come. As of July 8, people in Washington state can legally purchase small amounts of marijuana and smoke pot privately without fear of criminal repercussions from the state.

Peering over the Columbia River, many Oregon employers worry about what this could mean for them. What if a worker commutes from Vancouver and shows up with “legal pot” in his system? How could that be treated under an employment policy? And could any workers travel across the Interstate Bridge, purchase weed legally and then claim lawful behavior if they show up to work high? Where can an employer draw the line?

The case of Mike Boyer and his Washington employer, TrueBlue Labor Ready, might help explain the situation best.

Mike wanted to be the first person in the state of Washington to purchase marijuana legally, so he prepared well. He was first in line to camp out in front of Spokane Green Leaf and waited more than 20 hours until the doors opened. He was so proud of his position that he invited news crews to watch and record him making the historic purchase when the store opened at 2 p.m. He even allowed them to follow him back to his house, where he legally smoked pot for the cameras.

Mike didn’t realize (or didn’t care) that his managers at TrueBlue saw the news report, until they asked him to come in to take a drug test within the next 24 hours. Of course, he tested positive for marijuana, and it should come as little surprise that he was immediately terminated for violating the company’s zero-tolerance drug rules. Thus he was in the headlines for the second time in two days for falling victim to his employment policies.

But there’s a twist – his employer soon learned that he was actually on a pre-planned day off work on July 8, and thus realized they couldn’t prove that he was under the influence of the drug while on duty. So on July 9, they rehired him and apologized for the misunderstanding.

Mike had a pretty relaxed attitude about the whole thing. “It all worked out,” he was quoted as saying after he appeared in the news headlines for the third time in three days.

So, what can Mike’s situation teach us about how to handle the inevitable situation wherein an employee claims that he can’t be legally fired because marijuana is now legal in Washington?

First things first. The new law does not say that employees are allowed to use the drug at work in Washington, and it does not provide individuals comfort should they show up for work with the drug remaining in their system. But that might not stop employees from claiming that they can’t be touched, arguing that recreational pot is now legal.

Further, the Washington law sets a standard for marijuana “impairment” based on how much THC, the drug’s active ingredient, is in the bloodstream; some employees might even claim that they should not be in violation of workplace policies if they are below “impairment” levels set by law. This is especially true because THC drops below the legal impairment level within hours, but certain marijuana remnants can show up in a drug test days after use.

No fear, employers. Despite these anticipated arguments, employers are in no way required to amend their workplace drug and alcohol policies to accommodate the new law. Just because marijuana is legal under certain circumstances doesn’t mean an employer has to tolerate it in an employee’s system while at work.

After all, alcohol is legal across the country, but an employee who sneaks a bottle into work or shows up to work drunk can certainly be terminated. Marijuana is no different, and employers can remind employees of this before they think about breaking policies.

Further, the law does not change a 2011 Washington Supreme Court decision that found employers are permitted to discipline or terminate medical marijuana users who violate workplace drug policies, and are not required to accommodate an employee’s use of medical marijuana.

And finally, Oregon workers have absolutely no right to claim that any impairment that shows up in their system is somehow protected if they bought or ingested the drug in Washington, because the law offers them no safety net in that respect.

Employers continue to have legitimate reasons for implementing and applying policies prohibiting employee use of marijuana at work, and requiring that employees not have traces of marijuana in their system while at work, even if the substance is legal in their home state or a border state. (And don’t forget that marijuana is still considered illegal under federal law.)

Employers should continue to apply their zero-tolerance drug and alcohol policies, drug testing policies and prohibitions against the possession of the drug on company property. To avoid any confusion as to how workplace policies apply to recreational use, I recommend that company policy be issued in writing to applicants and employees, and that it clearly indicate that the use of marijuana – whether for recreational or medical purposes – is prohibited just as is any other controlled substance. Further, policies should prohibit any detectable level of drug in an employee’s system to avoid any confusion with the state’s “impairment” standard.

Mike’s employer decided to cut him a break because they might not have been able to prove that he was impaired while on duty, and maybe also because they didn’t want to bear the brunt of the negative publicity. However, this doesn’t mean that employers can’t enforce their policies consistently and stringently. If an employee decides to toke up in Vancouver over the weekend, and then shows up to work with traces of marijuana in his or her system on Monday morning, feel free to take disciplinary action as with any other violation of anti-drug rules.

Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.

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