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Rhode Island ®

www.HRhero.com

What’s Inside

Part of your Rhode Island Employment Law Service

Daniel K. Kinder, Sara A. Rapport, Tim Cavazza, Editors

Little, Medeiros, Kinder, Bulman & Whitney, P.C., www.lmkbw.com

Vol. 15, No. 9 October 2010

Contractors

Financial reform law has hidden diversity requirements for contractors . ...................... 2

Workplace Trends

Survey says worker morale and productivity top employer concerns ............... 4

Hiring

Inquiry into applicant’s workers’ comp history lands employer in court ................. 4

Workplace Safety

What does the bedbug epidemic have to do with your workplace? Lots .................... 5

Human Resources

Lessons everyone can learn from George Steinbrenner’s years with the Yankees ........ 6

On HRhero.com Discrimination The American workforce is becoming more diverse, with people from all walks of life. It’s important to know the discrimination laws that protect your workers. At www.HRhero.com, you can find the following tools to ensure your policies are on the right path: • HR Sample Policy  Harassment and/or Discrimination, www. HRhero.com/lc/ policies/204.html • HR Sample Policy  Respectful Workplace, www.HRhero.com/lc/ policies/220.html © M. Lee Smith Publishers LLC

employer retaliation status dage, ds, reld, fmla, retal, cd, evid

Return to sender Although our courts tell us that not every unpleasant workplace occurrence equates to an unlawful discriminatory or retaliatory act, some rulings disregard that principle. But this one doesn’t. Read on for a court ruling that proves employee perception isn’t always reality.

There’s a new postmaster in town Carmen Roman worked for the U.S. Postal Service (USPS) in Puerto Rico. Although she was permanently assigned as the customer relations co­ ordinator reporting to the San Juan postmaster, she was appointed acting manager of marketing in 2002. In that position, she worked out of the USPS Caribbean district office. During her assignment there, Grace Rodriguez was appointed as the new San Juan postmaster.

‘You can’t make me’ On December 1, 2004, Roman’s manager, Candido Lopez, told her that Rodriguez wished to meet with her to discuss the elimination of the customer relations coordinator position and talk about other positions that were avail­ able to her. Roman, who had never ac­ tually met Rodriguez, refused to meet with her or even apply for another position. Instead, she filed an age, sex, and religious discrimination complaint through USPS grievance procedures on December 17.

Roman continued working as act­ ing marketing manager until the assign­ ment expired on October 4, 2005. She then sought and was granted Family and Medical Leave Act (FMLA) leave for stress. After exhausting all avail­ able leave on November 30, 2006, she retired.

The lawsuit Roman filed a lawsuit in federal district court alleging discrimination, constructive discharge, and interference with her FMLA rights. She added a re­ taliation claim because she contended that the USPS retaliated against her five times after she filed her internal discrim­ ination complaint. The federal district court judge dismissed all of her claims before trial, finding them legally insuf­ ficient. Roman appealed to the First U.S. Circuit Court of Appeals, which covers appeals in Puerto Rico as well as Rhode Island.

Retaliation? I don’t think so The appeals court focused on the individual retaliatory acts alleged by Roman, which included: (1) disciplining her for traffic violations; (2) changing her job responsibilities; (3) bumping into her once as she passed through a doorway;

Little, Medeiros, Kinder, Bulman & Whitney, P.C., is a member of the Employers Counsel Network


Rhode Island Employment Law Letter (4) ending her acting marketing manager assignment; and (5) temporarily withholding her pay after she went on FMLA leave. To overturn the lower court’s dismissal, Roman had the burden of demonstrating by objective evidence that (1) the USPS was motivated by retaliatory bias to take the alleged actions or (2) the reasons the USPS gave for taking the actions were untrue. The First Circuit found that the traffic citations were legitimate and nonretaliatory because Roman’s traffic infractions were observed on camera and by several others. In addition, other USPS employ­ You don’t need to ees, including Rod­ treat employees who riguez, had been cited for traffic vio­ file discrimination lations. Further, the complaints with court determined kid gloves. that the decisions to change Roman’s job responsibilities and end her temporary assignment were motivated by legitimate operational interests and not re­ taliatory bias. And although there was a “bumping” in­ cident, it was caused by a malfunctioning security door rather than any desire to punish her. Finally, the appellate concluded that the initial fail­ ure to pay Roman when she went on FMLA leave was a mistake rather than an intentional act of reprisal. The court cited the confusion over the newly implemented electronic submission system, the fact that others also weren’t paid, and the fact that the USPS promptly com­ pensated her after it recognized the mistake. The court found it significant that during the period of claimed retaliation, Roman received a bonus, favor­ able perform­ance reviews, and suffered no loss of pay or benefits. Ultimately, the First Circuit ruled that her subjective belief that she had been retaliated against for her internal discrimination complaint was inadequate in the face of the legitimate nonretaliatory reasons the USPS provided for its actions. Thus, the dismissal of her case was upheld. Roman v. Potter, U.S. Postmaster General (First Circuit Court of Appeals, 2010).

Bottom line You don’t need to treat employees who file discrimi­ nation complaints with kid gloves. You can hold them accountable — as you would any other worker — so long as you have legitimate nondiscriminatory reasons for doing so. As always, you should uniformly enforce only one set of workplace rules to avoid the legal and employee morale problems that result from workplace double standards. ✤ 2

government contractors October 2010 federal article. leg, gc, ds, drace, term

Financial reform’s hidden surprise: diversity requirements The Dodd-Frank Wall Street Reform and Consumer Protection Act (also known as “financial reform” or “the Wall Street bill”) made headlines when President Barack Obama signed it into law on July 21. However, many employers probably don’t realize the legislation contains diversity provisions that could affect them if they are contractors, subcontractors, or service providers for certain federal government agencies. More specifically, the diversity requirements found in the bill will affect financial industry organizations and those connected to them.

Office of Minority and Women Inclusion The federal financial regulatory agencies affected by the legislation will have to establish an Office of Minor­ ity and Women Inclusion. According to the legislation, each office is “responsible for all matters of the agency relating to diversity in management, employment, and business activities.” Each agency must establish an of­ fice no later than six months after the date of the bill’s enactment, and each agency administrator (head of the agency) will appoint an office director. • • • • • • • • •

The agencies subject to these requirements include: the departmental offices of the U.S. Department of the Treasury; the Federal Deposit Insurance Corporation; the Federal Housing Finance Agency; all of the Federal Reserve banks; the Board of Governors of the Federal Reserve System; the National Credit Union Administration; the Office of the Comptroller of the Currency; the Securities and Exchange Commission; and the Bureau of Consumer Financial Protection estab­ lished by the legislation.

Office functions for:

Standards. Office directors must develop standards

(1) equal employment opportunity and the gender, ra­ cial, and ethnic diversity of the agency’s workforce and senior management; (2) the increased participation of businesses owned by minorities and women in the agency’s programs and contracts; and (3) evaluation of the diversity policies and practices of entities that are regulated by the agency. October 2010


Rhode Island Employment Law Letter Directors must also advise the agency administrator re­ garding the impact of the agency’s policies and regula­ tions on businesses owned by minorities and women. Additionally, office directors must develop and implement standards and procedures to make sure the agency fairly includes and uses minorities, women, and businesses owned by minorities and women in all of its activities and business. That includes procurement, in­ surance, and all kinds of contracts. Contracts. The agency’s procedures for reviewing and evaluating contract proposals and for hiring service providers must include “a component that gives consid­ eration to the diversity of the applicant.” Additionally, contractors doing business with the agencies must sub­ mit a written statement that they will make sure (to the maximum extent possible) that they (and their subcon­ tractors, if applicable) fairly include women and minori­ ties in their workforce. Termination. If a director determines that an agency contractor (or subcontractor) didn’t make “a good-faith effort” to include women and minorities in its work­ force, the director will recommend contract termination to the agency administrator. After the administrator re­ ceives such a recommendation, she can:

financial institutions;

investment banking firms;

mortgage banking firms;

asset management firms;

brokers;

dealers;

financial services entities;

underwriters;

accountants;

investment consultants; and

providers of legal services.

Additionally, the term “contracts” includes “all contracts for all business and activities of an agency, at all levels, including contracts for the issuance or guar­ antee of any debt, equity, or security, the sale of assets, the management of the assets of the agency, the making of equity investments by the agency, and the implemen­ tation by the agency of programs to address economic recovery.”

What you need to know

Affected employers

If you’re a federal contractor, subcontractor, or serv­ ice provider for one of the federal agencies listed above or you expect to become involved with one of those agen­ cies, you may be facing more regulatory review of your organization’s employment practices. However, exactly what these regulations will entail isn’t clear yet since each agency’s office will develop its own standards.

Employers that deal with the above agencies may be affected by these new diversity requirements. Accord­ ing to the legislation, these requirements apply to the following service providers:

Even though the agencies haven’t yet developed the new standards, if you think you may be subject to this legislation, it’s a good idea to start planning ahead. More specifically, you should:

(1) terminate the contract; (2) refer the issue to the Office of Federal Contract Com­ pliance Programs (OFCCP); or (3) take other appropriate action.

Don’t miss this important virtual conference

CONDUCTING WORKPLACE INVESTIGATIONS: A Step-By-Step Virtual Summit for HR Leaders December 15 Presented by attorneys Mark I. Schickman and Kara E. Shea

®

October 2010

When an employee comes to you with a complaint of discrimination, sexual harassment, retaliation, theft, inadequate security, or another serious issue, do you know what to do? If you don’t have an effective plan in place for investigating these complaints, you could be leaving your company open to litigation. In this all-new one-day conference, knowledgeable attorneys will provide step-bystep guidance on how to conduct legally compliant workplace investigations that will uncover the facts behind employee complaints.

For more information or to register, visit www.HRhero.com or call toll-free (800) 274-6774. Please mention CONFERENCE CODE P373 when calling.

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Rhode Island Employment Law Letter

WORKPLACE Trends

• Determine whether your current contracts, subcontracts, or service agreements would cause you to fall under the legislation.

Morale named biggest workforce challenge. A survey of HR managers shows morale and employee productivity are top concerns for the rest of this year. Thirty-one percent of the HR managers surveyed by ComPsych Corporation, a provider of employee assistance programs, named maintaining employee productivity and morale as their top concerns. Twenty-six percent said dealing with health care costs and new legislation, 16 percent said finding qualified candidates, 14 percent said handling organizational change, and 13 percent said retaining top performers.

• Review your current diversity programs and practices.

Moonlighting rate drops. The multiple jobholding rate — the proportion of total employment made up of workers who held more than one job — was 5.2 percent in 2009, according to figures from the U.S. Department of Labor. That’s below the levels recorded during the mid-1990s. Among most of the major demographic groups, “moonlighting” has become less common in recent years compared with the mid- to late 1990s. The multiple jobholding rate reached its most recent peak (6.2%) between 1995 and 1996. The rate began to recede and declined to 5.2 percent by 2002. Since the start of the most recent recession in December 2007, the multiple jobholding rate has hovered around five percent. Among the major racial ethnic groups in 2009, the multiple jobholding rate for whites was 5.4 percent, while the rates for blacks and Hispanics were 4.8 percent and 3.3 percent, respectively. The rate for Asians was 3.2 percent.

What? I can’t ask that?

Survey finds millions of older workers in physically demanding jobs. A study from the Center for Economic and Policy Research shows that 37 percent of male workers age 58 and older have physically demanding jobs. The center conducted the study to assess the impact of raising the retirement age. The report also said that among those age 58 and older, difficult jobs were held by 62.4 percent of Latino workers, 53.2 percent of black workers, 50.5 percent of Asian/Pacific American workers, and 42.6 percent of white workers. Older workers with less than a high-school diploma had the highest share of workers (77.2%) in difficult jobs. Preliminary figures show drop in fatal occupational injuries. A preliminary total of 4,340 fatal work injuries was recorded in the United States in 2009, down from a final count of 5,214 fatal work injuries in 2008. The 2009 total represents the smallest annual preliminary total since the Census of Fatal Occupational Injuries was first conducted in 1992. Based on this preliminary count, the rate of fatal work injuries for U.S. workers in 2009 was 3.3 per 100,000 full-time equivalent workers, down from a final rate of 3.7 in 2008. D

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• Review the OFCCP’s standards and determine how your organization’s practices and programs compare (since many speculate the new standards will be similar to OFCCP standards). • Decide whether you think you will need to implement new diversity programs and practices to comply with the new standards. D

hiring

status hiring, el, dh

A recent case from the First Circuit is a reminder that you should steer away from improper questions when interviewing employees during the hiring process. The employer ended up prevailing in the case, even after it asked for the applicant’s full workers’ compensation history. However, because the employer was forced to defend a costly lawsuit, it can hardly be called a winner.

Inquiry elicits questions about motive We all know there are certain questions you can’t ask dur­ ing a job interview. For example, questions like “What nation­ ality is your last name?” might be an improper inquiry about national origin. Questions about age or religion also are prohib­ ited, as are questions that might elicit responses indicating fam­ ily status — e.g., “Do you have any little ones at home?” A Massachusetts company found out the hard way that questions can get you into trouble. When Forward Air inter­ viewed Edward Martino, it learned that he had been out from work on workers’ comp while recovering from injuries. The employer then made a big mistake and asked for his full work­ ers’ comp history. After the company decided not to create the position for which he interviewed, Martino sued, alleging dis­ ability discrimination. Fortunately for Forward Air, the jury found that the com­ pany denied Martino a job for legitimate nondiscriminatory reasons — it never created the position he sought. Because he didn’t suffer any damage from the illegal inquiry, the First Cir­ cuit held that he couldn’t prevail simply because the company improperly inquired about his workers’ comp history.

Knowledge is power The good news is that simply asking an ill-advised ques­ tion during an interview doesn’t mean you automatically will be held liable for discrimination. A jilted prospective employee likely will have to convince a jury that you didn’t hire him be­ cause of his answer to your improper question. However, even if you might not have to pay the applicant, you still may have to pay an attorney to defend against a lawsuit prompted by an illegal inquiry. October 2010


Rhode Island Employment Law Letter Even if you have no intention of discriminating against an applicant on the basis of prohibited factors, choose your words carefully when conducting inter­ views. Small talk is great, but stick to discussing the weather. You can research hiring, discrimination, or any other employment law topic in the subscribers’ area of www.HRhero. com, the website for Rhode Island Employment Law Letter. Access to this online library is included in your newsletter subscription at no additional charge. ✤

OCCUPATIONAL SAFETY October 2010 federal article os, wc, wi

How to put some bite into your antibedbug efforts

Make sure employees understand that bedbugs go where humans go and aren’t a sign of slovenly habits or somehow the carrier’s fault. This message should help reduce any stigma attached to an infestation.

In the workplace Perhaps the best thing you can do as a manager is to be open to the possibility that your workplace may har­ bor bedbugs. Listen to employees if they suspect bed­ bugs, and check out their complaints promptly. Educate employees to gather evidence (dead bug on sticky tape, for example) and keep track of where it was found so a pest control expert can identify it. It’s better to tackle bedbugs early than to deny they exist and put off trying to get rid of them.

Not so long ago, people could file away any bedbug worries in their mental “faraway travel, odd hotel” file — meaning, “It won’t happen to me.” These days, bedbugs seem to be everywhere, from top-tier hotels to office buildings, movie theaters, and popular retail stores. People work in all of these places. Employers may be scratching their heads (sorry, couldn’t resist) wondering what to do if the critters show up at work. Here are some ideas to get you started.

As the New York Bed Bug Advisory Board pointed out in its report, there are no “best practices” for pest management professionals. Pest control personnel use a variety of approaches, it’s hard for customers to evalu­ ate them, and “scams and fraudulent services are be­ coming increasingly common,” the board’s report states. The board includes initial pest industry guidelines as an appendix to its report.

Bedbugs 101

The Harvard School of Public Health’s webpage on bedbugs, www.hsph.harvard.edu/bedbugs, recom­ mends contacting a licensed pest control operator who is knowledgeable and experienced in managing bedbug infestations. Ask for references, and ask at least a few of the operator’s customers about their experiences before agreeing to any contract.

Bedbugs are dark-colored wingless insects that usually come out only at night for their food of choice: human blood. They’re remarkably hardy and can live for months — some websites say a year — without a blood meal. What’s more, they reproduce readily and have become resistant to some pesticides. They do bite, injecting the sleeping victim’s skin with an anesthetic substance and sucking out blood. Some people don’t react to bedbug bites, but most will develop bumps or welts that can itch mightily. For­ tunately, bedbugs aren’t known to transmit disease. Scratching at welts could lead to an infection, however, and some people have developed anxiety and insomnia after bedbug bites. A recent New York Times article explored the social stigma that people can experience if bedbugs infest their homes, and shunned people can suffer psychological ills like depression. It’s possible that an employee could file a workers’ compensation claim for workplace bedbug bites, just as they have for tick-transmitted Lyme disease and brown recluse spider bites.

Take bedbugs seriously Awareness and prevention are key to antibedbug efforts. New York City topped Terminix’s recent list of the nation’s 15 hot spots for bedbugs, and when the city’s Bed Bug Advisory Board this year presented rec­ ommendations, it first called for public education and awareness. October 2010

One term that comes up repeatedly in bedbugc­ ontrol discussions is integrated pest management (IPM), which employs “all possible methods in a logical combination that minimizes risk of pesticide exposure, safeguards the environment, and maximizes effective­ ness,” according to the state of New York’s IPM website. Facilities should have a pest management plan in place to deal with pests, including bedbugs, before they’re a problem. IPM methods include: •

inspecting infested areas and surrounding living spaces;

correctly identifying pests;

keeping records of times and places where pests are found;

reducing clutter;

following cleanup procedures;

using pesticides as appropriate;

following up with additional inspections and treat­ ments; and

educating people on preventing bedbugs. 5


Rhode Island Employment Law Letter

Final thoughts These ideas on preventing and addressing bedbug problems in the workplace aren’t meant to be exhaus­ tive. They can, however, offer a starting point in devel­ oping an approach to keeping bedbugs and other pests out of your workplace so they can’t cause problems for you and your employees. D

Human Resources

hres, et, wcul,Development hiring, retention, rec, term, empmor, supiss, employ, Professional (new), HOT TOPICS (Employee Retention, Hiring)

What we can learn from George Steinbrenner’s legacy with the Yankees During the 37 years in which George Steinbrenner owned the New York Yankees, from 1973 until his recent passing, the team won seven World Series titles and 11 American League pennants. To the delight of Yankees fans and the dismay of fans of all the other baseball franchises, Steinbrenner spared no expense throughout that time to sign talented managers and players to win championships. His spending habits aren’t the entire story, however. Even though Steinbrenner opened his checkbook every year, the Yankees certainly didn’t win that often. In fact, there was a 13-year span in which the team, stocked with highpriced talent, floundered and didn’t reach the playoffs. It was only after Steinbrenner’s management style evolved, perhaps not by his choice, that the Yankees rebounded from more than a decade of futility to become the consistently dominant team the world knows today. A review of Steinbrenner’s legacy provides insights into how both external recruiting and internal professional development have their place in nurturing and retaining talented personnel and how they may affect your organization’s shortterm and long-term success.

Kick-start your organization through recruiting Steinbrenner, not surprisingly, is quoted as say­ ing, “You have to be willing to spend money to make money.” When he and his financing group purchased the Yankees in 1973 for approximately $10 million, they bought a losing team. The Yankees hadn’t made the playoffs since losing the World Series in 1964 and were suffering from a precipitous decline in stadium atten­ dance. Steinbrenner wanted them to be a championship team again, and fast. In his view, the team was a good investment, but if he turned it into a winning franchise, the returns both financially and as a fan himself would be unbeatable. The “baseball experts” within the organization ob­ served that the team had a base of some talented play­ ers but lacked a dominant starting pitcher and an in­ timidating slugger, seemed to be playing “flat,” and 6

wouldn’t likely make the playoffs in the next several years before their base talent’s skills deteriorated. Op­ erating with a sense of urgency, Steinbrenner and his experts identified the best pitchers, sluggers, and man­ agers who might be available within the next few years and aggressively recruited and paid top dollar for each of them, starting with ace pitcher Jim “Catfish” Hunter after the 1974 season. Midway through the 1975 season, Steinbrenner also hired Billy Martin, a fiery former Yan­ kees player who had a track record as a manager for turning losing teams into winners. Those moves cata­ pulted the Yankees from obscurity to the World Series in 1976. After the Yankees lost the 1976 World Series, Stein­ brenner recruited free-agent slugger Reggie Jackson. In an era when the best ballplayers were lucky to earn $150,000 a year, the Yankees signed Jackson to a fiveyear, $3 million contract. As Jackson put it, “I’m a Yan­ kee because George Steinbrenner out-hustled everybody else.” The Yankees went on to win the World Series in both 1977 and 1978. Jackson and the team would reach the playoffs again in 1980 and the World Series in 1981. The Yankees, with several different high-priced players, lost the World Series once more in 1982. The sign from the dugout. You will need to assess whether your organization has people talented enough to deliver your best product to your customers and whether the timeline for delivering that product neces­ sitates swift action. If those assessments reveal that there are a few, albeit large, gaps in necessary competencies and current personnel cannot develop those competen­ cies quickly, if at all, be ready to recruit aggressively as Steinbrenner did.

Don’t overuse external recruiting After their loss in the 1982 World Series, the Yankees languished for 13 years without making the playoffs. The 1980s were the first decade since the 1910s in which they hadn’t won a World Series. Throughout that pe­ riod, Steinbrenner attempted to repeat the successes he had enjoyed in obtaining Hunter and Jackson by recruit­ ing other players with impressive statistics and compen­ sating them handsomely. Unfortunately for the Yankees, very few of the newly recruited players produced the impressive sta­ tistics they had previously, and the new players often didn’t fit in with the rest of the team because of skill-set redundancies and competing egos. As a result, the Yan­ kees weren’t competitive despite having many individ­ ually talented players and one of the highest payrolls in baseball. The sign from the dugout. While it’s always use­ ful to know who the talented people in the market are for future recruiting opportunities, you must also con­ sider how they would fit in with your organization and whether the recruiting and hiring costs outweigh the October 2010


Rhode Island Employment Law Letter their potential production for your company. Although you would hope that individuals who have been suc­ cessful in other organizations would be equally or even more successful in yours, as the Yankees of the 1980s and early 1990s illustrated, that isn’t always the case. Moreover, your organization may not be able to bear the cost of recruiting and employing superfluous talent as well as Steinbrenner and the Yankees did.

Don’t make excessive managerial changes Steinbrenner also attempted to kick-start the Yankees by rattling his managerial ranks, a strategy with which he had some success when he hired Martin (for the first time) in the middle of the 1975 season. In his first 17 sea­ sons, Steinbrenner changed managers 17 times, includ­ ing firing one in 1980 after the Yankees compiled the best regular season record in Major League Baseball (MLB) but lost in the playoffs just short of the World Series. He hired and fired and rehired and refired several manag­ ers on multiple occasions, including, most notably, Mar­ tin, who had five separate stints as the Yankees manager between 1977 and 1988. During the same 17-year period, Steinbrenner changed general managers (the executive who makes decisions about the baseball team’s opera­ tions as a whole) 10 times with similar capriciousness. Steinbrenner is quoted as saying, “I hope I don’t lead through fear, and I would hope it was more love and respect, but maybe it isn’t.” Unfortunately, as Stein­ brenner himself recognized, fear was the chief means by which he motivated his managers and general managers at that time. That environment encouraged short-term thinking and lack of continuity. After all, why would a replacement manager or general manager either (1) plan for the future of the organization if he would likely be fired for not delivering results today or (2) continue any of the strategies or plans of his predecessor if they got his predecessor fired? The sign from the dugout. Repeatedly blaming managers for problems without diagnosing potential flaws in organizational philosophy or systems simply isn’t productive and may set your organization up for a long run of mediocrity like the Yankees of the 1980s and early 1990s. Constant turnover instills fear in managers, making them less decisive. Moreover, it rewards only short-term thinking and discourages ingenuity and cre­ ativity because it suggests that the organization is more committed to its philosophy and practices, as flawed as they may be, than its managers. It also undermines the manager’s authority and effectiveness because subor­ dinates, after observing repeated turnover above them, come to expect that their manager will be fired soon and complying with his instructions isn’t important. Finally, high managerial turnover discourages rank-and-file workers from improving their skills to advance in the organization. October 2010

Develop talent internally for long-term success Throughout the first half of Steinbrenner’s owner­ ship of the Yankees, he demanded immediate results from his revolving cast of managers and general man­ agers, and in turn, they mortgaged the future of the franchise. He demanded that general managers recruit through free agency or trade for established veteran players with big names and past statistical achieve­ ments. Part and parcel with that philosophy, the general managers would be compelled, under threat of pending termination, to offer the Yankees’ best prospects to ob­ tain established players. In this way, they often disposed of prospects for less than their potential value since upand-coming players would have no place on the roster to aspire to because the high-priced established players were ahead of them on the depth chart. Managers appeared to fear that they would be fired if they didn’t play the richly paid veterans ahead of the prospects even if they saw greater potential in the pros­ pects. The upshot of this philosophy was that many good prospects were traded away, were never given an opportunity to develop fully at the major league level, or simply left the organization as free agents because the Yankees had no plan or place for them. However, from 1991 to 1993, the Yankees’ philoso­ phy changed, largely because Steinbrenner had been banned from day-to-day team operations by MLB’s commissioner for paying a confessed gambler to gather damaging information about former Yankees player Dave Winfield. Longtime Yankees executive Gene Mi­ chael, who had both business and baseball acumen, took over operations of the team without Steinbrenner’s in­ terference and emphasized scouting for and developing prospects. To his credit, when his suspension ended in 1993, Steinbrenner left baseball matters in the hands of Michael and other Yankees executives, which allowed promising prospects like Bernie Williams, Derek Jeter, Jorge Pos­ ada, Andy Pettitte, and Mariano Rivera to develop into

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Rhode Island employment law letter Training Calendar Call customer service at (800) 274-6774 or visit us at the websites listed below. FULL-DAY WEB SEMINARS 12-8 “2011 FMLA Compliance Virtual Summit: Advanced Challenges and Solutions for Employers,” presented by attorneys Michael Barnsback, Stacie Caraway, and Robert Kaiser. Watch for details at www. HRhero.com. 12-15 “Conducting Workplace Investigations: A Step-by-Step Virtual Summit for HR Leaders,” presented by attorneys Mark I. Schickman and Kara E. Shea. Watch for details at www.HRhero.com. AUDIO SEMINARS — http://store.HRhero.com/ events/audio-conferences-webinars Also available on CD and audio stream after the broadcast. 10-27 “Essential Function: Writing ADA-Compliant Job Descriptions,” presented by attorneys Audra K. Hamilton and Jonathan R. Mook. 10-28 “Control FMLA Abuse: Documentation Tactics to Deter Employees Who ‘Work the System,’” presented by attorneys James F. Kilcur and Christine Kenny. 11-1 “HR’s Response to New Union Organizing: Countering Social Media, Employee Handbooks and EFCA-lite,” presented by attorney Bonnie Glatzer. 11-3 “Operating in Canada: New Do’s and Don’ts for Employers,” presented by attorneys Brian Smeenk, Derek Knoechel, and Louise Béchamp. 11-4 “Wellness Programs: Avoiding Conflict with HIPAA, ERISA, ADA, the Health Care Reform Law and More,” presented by attorney Ashley Gillihan. 11-9 “New ADA Claims Rising: Workplace Odors, Scents and Allergies,” presented by attorney Dennis J. Merley. 11-10 “2011 Compensation Update: Using Merit Raises, Bonuses, and Other CostSaving Measures to Retain Top Talent,” presented by David Wudyka, SPHR, MBA, Westminster Associates. D Rhode Island EMPLOYMENT LAW LETTER (ISSN 1086-0517) is published monthly for $447 per year by M. Lee Smith Publishers LLC, 5201 Virginia Way, P.O. Box 5094, Brentwood, TN 37024-5094. Copyright 2010 M. Lee Smith Publishers LLC. Photocopying or reproducing in any form in whole or in part is a violation of federal copyright law and is strictly prohibited without the publisher’s consent.

All-Star talents who formed the core of the teams that won the World Series in 1996, 1998, 1999, and 2000. While Pettitte played for the Houston Astros from 2004 to 2006 and Williams retired in 2006, the Yankees, led by Jeter, Posada, and Rivera, made playoff appearances each year from 1995 to 2007 and won the World Se­ ries again in 2009 (with Pettitte back in the fold). The team saw similar stability and continuity in the general manager ranks since Steinbrenner didn’t fire any general man­ agers after 1991 and instead promoted successors who had de­ veloped their talents within the organization and continued to enhance and fine-tune its practices and systems. Steinbrenner continued to view each year with a sense of urgency, but unlike in the past, he let the general manager and other baseball execu­ tives consider long-term sustainable options, primarily through the organic development of players, in tandem with what needed to be done to win each year. Similarly, Steinbrenner retained Joe Torre as the Yankees manager for more than a decade, from 1996 through his own re­ tirement in 2007. As it turned out, Torre was the first manager Steinbrenner didn’t fire. Steinbrenner groomed his two sons to take over the responsibility for ownership operations, and after new contract discussions with Torre broke down, the two of them hired new manager Joe Girardi, a former Yankees player who had gained coaching experience under Torre. The Yankees have been a playoff team for nearly 15 years and have won five World Series championships in seven appear­ ances. The team has been successful largely because much of the talent on the field, in the clubhouse, and in the executive offices has been developed and promoted within the organization. The philosophy that took root in the early 1990s has developed an institutional pride and quasi-apprenticeship structure that has allowed for long-term successorship planning at nearly every player and managerial position. The sign from the dugout. Internal institutional training and development of future leaders may help your organization like they helped the Yankees because they: • increase job satisfaction and morale among employees be­ cause they feel valued and part of the organization’s future; • increase efficiency in the assessment of HR and recruiting needs because competencies will be known and gaps can be accounted for; • increase capacity to produce products for customers and cli­ ents because core competencies are strengthened; and • reduce the cost of recruitment and turnover because compe­ tencies are tracked, specific gaps can be filled, and successor­ ship plans may be established. D

Editorial inquiries should be directed to Daniel K. Kinder at Little, Medeiros, Kinder, Bulman & Whitney, P.C., 72 Pine Street, Providence, RI 02903, (401) 272-8080.

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(3) bumping into her once as she passed through a doorway; Discrimination Contractors Daniel K. Kinder, Sara A. Rapport, Tim Cavazza, Editor...

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