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Power Brainstorming – With a Written Record

Power Brainstorming – With a Written Record

By:  Bill Pilchak – 7/10/14

Possibly because attorneys spend so much of their time analyzing, reporting and arguing events others have experienced and thoughts others have expressed, I have always recognized the importance of capturing pearls of wisdom, interesting observations and valuable information when a group gets together. Whether in a firm work session, a client meeting to learn facts underlying newly-filed litigation, a Chamber of Commerce Board of Directors meeting or other venues, I have always understood that collecting tidbits that are thrown out during group discussions is important. If not somehow saved, a great idea or argument may be lost forever.

          Accordingly, when the Auburn Hills Chamber of Commerce Board conducted a retreat at Oakland University’s OU INCubator recently, I was in awe. The purpose of our meeting was to revisit our Chamber’s mission statement and develop a vision for the future, but any corporation or group can secure the facility to focus its team on any subject.

          The OU INCubator’s facility is arrayed in concentric semi-circle rows, easily accommodating 30-35 people. The room can be configured for larger groups. The layout allows each on the team to make eye-contact with each other, if and when eye-contact is needed. Each of the participants has a keyboard. At the front of the room is a huge video display. The program leader, having worked with the team leadership, presents introductory thoughts to the group.

          And that’s where the excitement begins. OU INCubator has technology that allows each participant to keyboard his or her thoughts which appear on the screen, with the contributors remaining anonymous. There are no stupid questions, but if a question belies one’s lack of knowledge, the group does not know which of the team is filling in a gap in their experience at the moment. That and other aspects of the INCubator’s program, assure that all synergies keep moving in a positive direction.

          Participants can comment on aspects of the concepts introduced by the program leader, or build upon comments posted by others. Soon, there is an explosion of ideas branching off in visually depicted directions. Concepts can be debated on-screen. An instant thumbs up or down vote could be taken at any time, expanding or cutting off expansion on a subject raised. You can almost hear the electricity of brain waves crackling. Should a point be exclaimed verbally, the leader will keyboard that thought onto the screen as well.

          That same process can be repeated for a series of ideas or subjects worked out by team leadership and OU INCurbator. At the end of the session, not only have ideas been developed to the nth degree by a focused group, but all the thoughts generated are captured in the program. In other words, the team leaders are provided with a document or electronic data capturing all the brainstorming that occurred during the session.

          It’s not surprising that Oakland University’s program would be so well suited to enhance business. OU INC’s Executive Director, Amy Butler, Prior to moving to OU INC, was the Director of the Bureau of Energy Systems, for the Department of Energy, Labor, and Economic Growth for the State of Michigan.  In that role, she aligned Michigan’s energy sector initiatives, promoted economic growth and job creation for Michigan’s transition to the energy economy.  Her focus throughout her career has been assuring resources funded by the public at large enhance Michigan’s business opportunities.

          If power brainstorming would benefit your organization, feel free to contact Ms. Butler at aabutler@oakland.edu or visit http://www.oakland.edu/ouinc .

Have We Set The Educational Bar Too Low?

By:  Dan Cohen – 7/8/14

          When President Obama was in Ann Arbor campaigning for a $10.10 minimum wage back in March, 2014, I was astonished by the passion U of M students displayed for the increase. This President can simply do no wrong in the minds of college students. It has gotten to the point where one U of M student proclaimed how she supported Mr. Obama because he filled out a bracket for March Madness and because he was “cool.” Wow, is she in for a rude awakening when she gets out into the real world. I am fit to be tied by the naivety of these young adults. Do they not understand that their summer jobs will be swallowed up by career short-order chefs and order takers at fast food restaurants?

          While Mr. Obama continues his minimum wage crusade, temporarily slowed by events in Iraq, here at home, Michigan became the eighth state to enact minimum wage legislation increasing the minimum wage. Under the new law, Michigan’s minimum wage will rise to $8.15 on September 1, then to $8.50 on January 1, 2016, and then to $8.90 on January 1, 2017, before reaching $9.25 on January 1, 2018. Starting January 1, 2019, the minimum wage will be adjusted based on the average annual percentage change in the Midwestern consumer price index over a five year period. The adjustment will be capped at 3.5%, and there will be no increase if the state unemployment rate is 8.5% or higher.

          By most accounts, neither the legislature nor Governor Snyder wanted an increase in minimum wage, but pushed the law through to kill the ongoing petition drive, which had gained momentum for an increase to $10.10. Clearly, the legislation was a “lesser of two evils” approach since we the people were about to jack the minimum wage up to $10.10 to “lift people out of poverty” simply because President Obama said so.

          More disturbing news that came to light about the same time in the story, “Michigan losing ground on other states in education, new analysis says.” According to this article, Michigan now ranks 49th among the states in 4th grade reading improvement and dead last in 4th grade math improvement since 2003. The middle schools are not having much more success, ranking 38th and 39th in 8th grade reading and math improvement over the same time period.

          Maybe before worrying so much about increasing the minimum wage, we should have stopped to think whether we can educate Michigan’s next generation of workers so employers might actually want to pay them more than the minimum wage. To me, it makes little sense to raise the minimum wage without fixing the educational system in our State. Perhaps Michigan should start looking for alternatives to its failing educational system. Governor Snyder would not have to look far for one option. Indiana Governor Mike Pence recently signed legislation making his the first state to withdraw from National Common Core education standards, which establish targets for proficiency in math and reading and purports to establish consistency and rigor in the nation’s education system. If Indiana, at 17th amongst states in educational ranking, can take such a step, maybe Michigan, with its 46th ranking, should start thinking about changes too.

          I harken back to my high school days and Roger Waters lyrics,

 We don’t need no education

We don’t need no thought controlled

No dark sarcasm in the class room

Teachers leave those kids alone

          Another Brick in the Wall, Part 2, Pink Floyd, The Wall, 1980. I’m not really sure what Roger Waters meant with these lyrics. Was he saying, through the use of a double negative, that we really do need education? Or, was he quoting French Marxist philosopher, Louis Althusser, on how education is a form of government control of the population? I do know that Another Brick in the Wall was released during my senior year in high school, and was an anthem of sorts for all of us seniors who were preparing to go off to college and conquer the world. I did not ponder the lyrics or dissect their meaning back then.

          Now, 34 years later, I do both. But, I do so out of concern for our educational system and because my two teenagers are living in that system with my oldest heads off to college in another year. Although only time will tell whether raising the minimum wage will kill jobs, create an underclass of permanent fast-food handlers, result in reduced hours or strengthen our economy, I always thought that education was the key to prosperity and that education and technical skills would pull people out of poverty. Maybe that’s just me. But, I say it is about time we accept the fact that our education system is broken and start thinking about how to fix it. Otherwise, we are simply selling ourselves short. So, forget what Roger Walters said. We do need education. Teachers don’t leave those kids alone. It’s time to get serious about education.

Telecommuting Decision Expands Duty to Accommodate and Underscores Need For Work-At-Home Guidelines

Telecommuting Decision Expands Duty to Accommodate and Underscores Need For Work-At-Home Guidelines

By:  Bill Pilchak – 7/4/14

          Until April, 2014, employers in the Sixth Circuit (Michigan, Ohio, Kentucky and Tennessee) were well-equipped to resist employee requests to work from home. Many opinions held that:

  • Regular and predictable attendance and physical presence in the workplace were essential functions of the job;
  • Jobs often require face-to-face interaction with clients and co-workers;
  • A request to work from home was unreasonable where “productivity inevitably would be greatly reduced;”
  • “Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise.”
  • Telecommuting prevented the remote employee from interacting with other team members.

          Pilchak & Cohen has been watching the development of technology with this law in mind.   Nowadays, business owners manage their businesses from remote and sometimes exotic locations, millennial employees are recruited with the promise of job-flexibility through work at home options, employees with parenting responsibilities are accommodated to prevent departures and salaried employees are expected to respond to e-mail and phone calls at all hours. Apparently, the EEOC has been watching as well.

          In EEOC v Ford Motor Co., __ F3d __ (6th Cir., April 22, 2014), the Sixth Circuit accepted the EEOC’s argument that “as technology has advanced…and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the work place can no longer be assumed to mean attendance at the employer’s physical location.” (emphasis added.) The Court noted that teleconferencing technologies are now commonplace and thus working from home may often be a reasonable accommodation.

          The Sixth Circuit did not accept Ford’s argument on the importance of a team-member’s physical presence, indicating that neither employees nor employers should be able to redefine the essential functions of jobs, so that now a jury will make the determination whether the employee must actually go to work. While the Court’s citation to jobs where physical presence is required (janitors, nurses, etc.) provides some ammunition for some cases, for many white-collar jobs the employer’s analysis must be more in-depth if employers wish to avoid telecommuting.   For example, the employee in this case was a “resale steel buyer” who served as an intermediary between steel suppliers and stampers to assure delivery of raw material for parts. She suffered from irritable bowel syndrome, sometimes preventing commuting and sometimes resulting in incontinence at work.

          If there is any silver lining in the EEOC v Ford opinion, it is the point that one’s inability to work during “core business hours” is an issue separate from telecommuting. The Sixth Circuit noted that “requests for flex time schedules may be unreasonable because businesses cannot “operate effectively when their employees are essentially permitted to set their own hours.”

          Most HR personnel will recognize the practical problems inherent in the ruling:

  1. Employers are prohibited from informing employees that a practice has only been allowed as an accommodation under the ADA, and as such all employees will demand to work from home;
  2. We find that accommodation issues seldom occur with an excellent employee with a legitimate disability;       Too often, marginal or even troublesome employees claim disabilities to avoid discipline or be excused from undesirable aspects of a job;
  3. Employees may have to access sensitive information, not normally accessible outside of the employer’s secured system.

The new opinion suggests that companies establish guidelines on the use of telecommuting. Here are some “off the top of our heads” ideas that might be incorporated.

  • Absent required accommodation under the ADA, a policy should provide telecommuting as an option only for employees with a demonstrated objective record of exemplary performance, attendance or significant length of service, to prevent abuses by untried or marginal employees.
  • Require measures to assure the employee is actually working the promised hours, such as:

  o   To check in by e-mail to the supervisor when the employee is commencing work, taking time off for meals, medical treatment or inability to work and when finishing work;

  o   To be available by land-line phone, if one exists in the home and to have immediate access to data sources during calls. (A cell phone call taken on the beach is often useless to the employer, and unfair to co-workers.)

o   Alternatively, consider requiring connections through video options such as Skype, Gmail video chat, Go-To-Meeting, etc., so the employee’s location is apparent.

o   Require timely responses to supervisor and co-worker e-mail and voicemail messages during regularly scheduled hours, to assure the employee continues to be a resource to the staff at HQ.

  • Set production standards measured by the employee’s in-office record, to assure there is no fall-off. For example, ten reports per week. The ADA permits employers to maintain production standards, even if accommodation is offered.
  • If being out of the office necessarily results in decreased ad-hoc work load, balance that with assignments that will fill the employee’s time. To return a balance to office morale, if the remote employee avoids some undesirable duties by working from home, perhaps the duty assumed would be one those in the office prefer to avoid. Be candid that the assumed duty offsets the undesirable avoided duty.
  • Requiring whatever in-office time is possible, so intellectual capital can be shared, and training can be imparted to juniors. Departmental meetings, required presentations, working lunches and the like are probably good tools for assuring some in-office time.


Obama and Union Agendas Suffer Blows in Three SCOTUS Cases

Obama and Union Agendas Suffer Blows in Three SCOTUS Cases

Recess Appointment Ruling Limits Presidential Power 

By:  Rhonda Armstrong – 7/1/14

          Another example of President Obama pushing his pro-union agenda by non-traditional means (as I last mentioned in a blog article dated 6/19/14), was highlighted last Thursday. Specifically, in NLRB v Noel Canning, No. 12-1282 (June 26, 2014), a much anticipated decision, the Supreme Court of the United States decided that three recess appointments made by President Obama to the National Labor Relations Board were invalid. In short, the high court found that the Senate was not really on “recess” (it being only a 3-day hiatus between sessions) and that President Obama “lacked the power” to make the appointments. (more…)