September 09, 2015
Studies of human behavior always fascinate me. Last month, I read a study about parents who were unsure about vaccinating their children because they believed vaccines were dangerous. After they were given facts about vaccination, which demonstrated that they were safe and effective, they were less – rather than more – likely to have their children vaccinated. In other words, many people with strong beliefs, when confronted with contrary evidence, tend to get defensive and therefore stronger in their beliefs.
We see this all the time in other areas. Any attempt to change Obamacare is met with firm resistance by the Democratic Party, even when confronted with clear evidence that a change is necessary. Republicans are just as guilty of this brand of stubbornness when confronted with evidence that refutes their core beliefs. Vegans do not want to hear about the benefits of animal protein; people who take herbal remedies do not want to hear about studies showing that they are worthless; and people who believe that employees need to be protected do not want to hear about the sufferings of employers.
This human irrationality is exactly what prevents thoughtful people from being elected to office, and prevents bad laws from being repealed or improved. It also causes employers, when sued for discrimination, to lose because (1) the judge has strongly held anti-employer beliefs he developed while representing a labor union, (2) the jury is composed of men and women who believe that they were treated unfairly at one point in their working life, (3) the laws are designed to make it easy to prove discrimination and difficult to prove misconduct, and (4) people just "know" that employers care only about making money.
Like it or not, we live in an era where employee rights are growing and growing. In fact, virtually every employee of every company, with the right inventive plaintiff's lawyer, can make out a case that some civil rights law protects him or her. Although I am a white man, I am older than 40, I have certain manageable health conditions that could be disabilities or "genetic evidence," and I was born in Panama. Certainly if I am being disciplined for poor performance, the real reason is one of these protected factors. I just knew my current employer does not like Panamanians.
One place where closely held beliefs, despite evidence to the contrary, can be found is the National Labor Relations Board. The NLRB, when confronted recently with handbook policies on civility, proper use of social media, and other rules designed to keep workplaces from turning into war zones, found that these policies interfere with an employee's right under the National Labor Relations Act to discuss and challenge workplace policies with other employees. The NLRB takes the view, it seems, that if an employee has a gripe with his employer, he ought to be able to use vile language to communicate it. If that employee also disagrees with other employees who like their jobs, it's ok to call those employees horrible names while exercising rights under the National Labor Relations Act.
Further, the NLRB currently is trying to insure that more workplaces will be unionized by cutting off the amount of time employers have to communicate with employees prior to a secret ballot election. Without examining any evidence, the NLRB has concluded that unions lose these elections not because they have legitimate reasons to oppose unionization, but because employers are threatening employees and intimidating them. While unions in the private sector are losing members, government employees with strong union views have concluded that there must be an evil reason for the trend. And the evil can be found in the company, not the union.
Another agency likely to conclude that employers are bad, despite evidence to the contrary, is the EEOC. Each year, the EEOC comes up with even more novel reasons why bad employees cannot be disciplined or fired, interpreting civil rights laws in ways that no one imagined they would be when enacted. Recently, the EEOC took the position that a rule calling for termination of employment following a one-year absence due to a medical condition was a violation of the Americans with Disabilities Act.
Really?
Employers need to understand that human irrationality is the principal reason why labor and employment law is so difficult. The deck is stacked, so to speak, against employers in the first place, so it is especially important to recognize this irrationality in dealing with employees. What you say matters, especially when those statements are repeated in court to prove discrimination or anti-union animus. Even when you are just talking to your employees, it is important to understand that employees think differently than you do. Giving those employees irrefutable evidence can sometimes, as I said at the start of this column, result in exactly the opposite of what you had hoped.
Good communications with your employees are essential, but you cannot be sure that they understand what you are saying. As George Bernard Shaw said: "The single biggest problem in communication is the illusion that it has taken place." If you want to avoid misunderstandings or ugly lawsuits, give plenty of thought to what you say and how you say it.
One way to avoid misunderstandings is to practice your communication skills. Let employees know what is going on, and give them a vested interest in your success. If you need to discuss performance problems with employees, try to do so in a way that they apologize rather than blame you for their failings. Ask them what needs to be done to get them to perform better; if the two of you can identify the problems together, it will be easier to show later that you had a good reason for disciplinary action.
You cannot eliminate irrationality in the workplace, but if you recognize it exists, you may be able to work around it. Recognizing your own irrationalities can also help you from falling into legal traps. Sometimes, you will be wrong, and if employees view you as open to different ideas, they will be more loyal in the long run.