I think that one of the most challenging elements of being a manager is how to finesse the tough conversations which inevitably occur in the workplace.  I am regularly called on by clients to hash through how they should approach problems of poor performance, failure of workers to achieve established goals, and inability to get along with others.  Easy for me to say but the truth is that you are the ones in the trenches and these conversations can be painful and even go toxic.  Here are some tips to prepare you for your next difficult conversation with an employee.

 1.        Deal with the Issue—Stay on topic.  Focus on the facts, not opinions or emotions.  Don’t let the employee control the interaction.  Don’t personalize it.  Stick to the facts—outline them as a foundation for the next step.

 2.       Make a plan.  The simplest way to do this is to consult your employee handbook.  Hopefully, I will have written it.  If not, please read it and see if it delineates consequences applicable to the situation.  This will structure your discussion with the worker.  If the manual provides for progressive discipline, then assess whether you should issue a verbal warning, written warning, suspension or even discharge.  Think about how you want to implement the disciplinary action and prepare for it.  Write out the warning and then review.  Does it go to the essence of the matter?  Have you spelled out consequences for continued violation of your policy or poor performance?  If you are seeking an improvement, does it articulate a performance improvement program including objectives and time frame for re-review?

3.       Address the issue.  Plan a meeting.  Make sure that you have a  witness present in case the employee becomes hostile or argumentative.  Know how you want the conversation to go.  Practice in the mirror if necessary so that you are comfortable with your own presentation and demeanor.  Set a location with which you are comfortable—and it should be private and at a time which will reduce embarrassment and avoid gossiping.  Timing is also important.  Delay will impact the message and any proposed constructive action.  Issues should be resolved promptly.

 4.       Be clear in your message.  Keep it simple and direct.  Try not to get into a debate.  Appear to be listening carefully.  At the close of the meeting, repeat and clarify so there is no confusion.

 5.       Document.  Take the approach that, if it isn't written down, then it didn't happen!  Include the date and year, time, those present, the substance of the conversation and sign the documentation.  This is two-pronged: the corrective action or warning should be completed and signed but also write a memo for your own files.

 And, if you aren't sure how to navigate through these waters alone, call me to review your approach—before it happens!

 To contact Judge Ruth Kraft, Chair of the Employment Law Group, call her at (516) 747-6700 ext. 326 or email her at RKraft@kirschenbaumesq.com



In the wage/hour world, donning and doffing policies are areas of serious employer exposure.  The question, under the Fair Labor Standards Act and state law, is whether employers are required to pay workers for time spent putting on and taking off work clothes and/or protective equipment.

As a general rule, preliminary and postliminary activities are not compensable.  Yet, there is always a “but”: the Supreme Court has held that a principal work activity includes integral and indispensable activities.  Exchanging street clothes for work attire can be integral and indispensable if necessary to the performance of the principal activity and if performed for the benefit of the employer.  Also, if the changing is compensable time, so is the time that it takes to “travel”, meaning to go from the locker room to the work station and “waiting” time, if the worker needs to wait for a changing room to be available.

A collective bargaining agreement can render the donning and doffing time noncompensable.  However, please note that this does not mean that the employer and worker can shake hands on an agreement that the time will be unpaid.  

Employers frequently and erroneously assume that because changing one’s clothes does not require much effort, it is not work.  This is incorrect.  If changing clothes is for the benefit of the employer (for example, wearing protective garments, apparel sporting the employer’s logo, or medical garb which is mandated by OSHA, then the time taken to don it is for the employer’s benefit and must be recorded and paid as such

What if there is a debate as to whether the garment is mandated or optional? For example, hair nets, safety goggles, smocks or plastic sleeves----consider writing a standalone policy or incorporating rules into your employee handbook to clarify whether these are required items.

Finally, is the employee required to change into the garment at work or can he leave home wearing it?  If the employee has the option of coming to work in the mandated uniform or garment, then donning and doffing time would not apply.  However, think about scrubs worn in an operating room. If the organization’s policy is to prohibit those uniforms from being worn outside the medical facility for fear of contagion, then the employee must be paid for changing time.

Do you think that the time involved is de minimis?  Maybe, but know that several important federal class action cases have been brought on this basis.  Litigation means attorneys’ fees and involvement in a defense which, even if the employer prevails on the merit, places a serious burden on the company.

 Judge Ruth B. Kraft chairs K & K’s employment law group, addressing all aspects of employer-employee-regulatory relationships. She provides representation, consultative services and strategic planning to employers nationwide. To book a telephone consultation with Judge Kraft, contact Contract Administrator Eileen Wagda at (516) 747-6700 ext. 312; EWagda@KirschenbaumEsq.com






December 4, 2013   12 noon EST  Register here: https://attendee.gotowebinar.com/register/4919260455763006721

     Title:  10 Things Residential Security Alarm Companies should consider BEFORE entering the world of Commercial Engineered System Fire Alarms

      Presented by:  Bob Williams, President of Briscoe Protective Systems and his Management Team. 

Briscoe Protective Systems has been in the industry for 35 Years and has made the transition from a Residential Alarm Company in the late 70’s to a Engineered System Fire and Security Company that is an SDM Top 100 Company. Find us on the web at www.BriscoeProtective.com or on LinkedIn under Companies, Facebook and Twitter@BriscoeProSys 

      Description:  There is a big difference between installing Residential Fire Systems and Commercial Engineered Fire Systems and there are “Key Factors” that Security Company’s should consider before attempting to go into this lucrative but challenging market.

      Who should attend:  Alarm company owners and fire techs.