Quirky Question # 171:
I’m the HR Director for a company with a significant sales division. One of our very successful sales managers sometimes uses “motivational” techniques that strike me as harsh and potentially problematic. Nevertheless, while I’m not sure his subordinates appreciate him, he gets results. And, while his subordinates may have reservations about his techniques, the company’s top executives clearly are impressed by the outcomes he achieves.
As the HR Director, I wonder whether the company’s enthusiasm for the sales manager’s short-term results might backfire. Long-term, I’m not convinced his approach is sustainable. Moreover, I’m concerned that some of his harsh behaviors might create liability. Can you offer any guidance?
Hmmm. Just what are the “motivational techniques” you are referencing? Is your manager’s attempt to motivate reminiscent of David Mamet’s play, Glengarry Glen Ross? Is the office coffee just for “closers”? Or is your manager’s behavior something else entirely?
In general, as a employment law litigator, I get uneasy when I hear managerial conduct described as “harsh.” I suspect your intuition – the conduct is potentially problematic – is right on target. Although you have not provided specifics regarding what the conduct entails, in my experience juries don’t have much tolerance for “harsh.” In nearly every employment case, the jurors are assessing the conduct complained of against the standard – ‘is that how I would like to be treated’? Or, is that how I would like my wife, or my daughter, my son or my husband to be treated in the workplace? If the answers to those hypothetical inquiries are unequivocally not, you’ve got a problem.
As you note, harsh managerial conduct may help your organization achieve short-term results. And while the “top executives” may appreciate the short-term outcomes your manager achieves, I share your concerns about whether this type of approach is sustainable long-term. Moreover, I seriously doubt your company’s executives will be equally enthusiastic about this manager and his harsh techniques when: a) key employees decide that they would rather work for your competition; b) talented applicants get the inside scoop about the actual work environment and elect to pursue their employment goals elsewhere; c) the harsh conduct results in litigation and they have to start paying attorneys to defend the offending behaviors; d) the plaintiff prevails in the lawsuit and a substantial damages are awarded by the jury. In contexts like these, enthusiasm for the short-term results tend to erode rather quickly.
A number of years ago, the CBS show, Sixty Minutes, did a story on the software company, SAS, and its Founder/CEO, Jim Goodnight. SAS is perennially ranked as one of the best companies to work for in the U.S. and was recently named by Fortune Magazine (February 7, 2011 issue), as the best company to work for in 2010. SAS held the same spot in the ranking the prior year as well. In the Sixty Minutes piece, Goodnight remarked that at the end of each work day, 95 percent of his assets drive out the front gate. He went on to comment insightfully that it was his job to ensure those same individuals returned to SAS the next day. The question I would pose is whether you feel that 95 percent of your employees, particularly those who have been treated harshly by this particular manager, will likely be driving back through your company’s gates each day.
Let me juxtapose the mindset of SAS’s CEO with a case recently reported from the State of Utah, Hudgens v. Prosper, Inc. and Joshua Christopherson, (November 23, 2010, Utah Supreme Court). Among other things, the Hudgens case illustrates that you just can’t make this stuff up. I’d guess that if I just described the fact pattern of Hudgens without being able to link the facts to a case, you would roll your eyes in disbelief and assume that I was exaggerating unrealistically simply to make a point. I’m not.
The procedural posture of Hudgens was an appeal of a dismissal stemming from a Rule 12(b)(6) motion. Thus, the Utah Supreme Court assumed that the facts as the plaintiff described them were accurate. (I’ll make the same assumption.) Whether Hudgens can establish those facts after the appeal (the case was reversed and sent back to the trial court), remains to be seen.
As described by the Court, the facts were essentially as follows. Hudgens was an employee of Prosper, under the supervision of Joshua Christopherson. As the Supreme Court described, “during the 10 months that Mr. Hudgens worked for Prosper, Mr. Christopherson had engaged in numerous questionable management practices.” For example, Christopherson would draw a mustache on an employee who did not meet his performance goals using a permanent marker, or he would remove the employee’s chair, forcing him/her to work standing up. Christopherson also would “patrol the employees’ work area with a wooden paddle, which he would use to strike desks and tabletops.” The company was aware of Christopherson’s actions and “encouraged his behavior because it led to increased revenues.”
In May 2007, Christopherson asked for volunteers for a new “motivational exercise.” Christopherson did not tell his subordinates what the exercise might entail but suggested that the exercise would demonstrate an employee’s loyalty and determination. Even though he did not know what the exercise might involve, Hudgens took his manager’s challenge and volunteered to “prove his loyalty and determination.” Christopherson then took the employees to the top of a hill, where he instructed Hudgens to lie down on his back with his feet pointing uphill. Christopherson then directed other employees to hold down Hudgens’ legs and arms. Christopherson then poured water from a large container over Hudgens’ nose and mouth so that he could not breathe. Hudgens struggled to get up but Christopherson ordered the other employees to continue to hold him down. The court noted that the technique utilized by Christopherson is commonly known as “waterboarding.”
How did Christopherson justify his actions? As the Court summarized, “Mr. Christopherson instructed his team members that they should work as hard at making sales as Mr. Hudgens had worked at trying to breathe.”
Hudgens reported the incident to the company’s HR Department. The company took no action in response to Hudgens’ complaint. Hudgens quit soon thereafter, alleging that the waterboarding incident caused him to suffer “sleeplessness, anxiety, depression, and to feel sick to his stomach at work.” Hudgens claimed that Christopherson and Prosper had engaged in an assault and battery, and intentional infliction of emotional distress.
As noted above, the trial court granted defendant’s Rule 12(b)(6) motion. This decision was reversed by the Utah Supreme Court, with some guidance regarding how the case should be handled by the lower court. It will be interesting to see how the case progresses through the judicial system after the lower court re-examines the facts in light of the Supreme Court’s guidance.
Unless the case is dismissed by the trial court, I suspect that Prosper has a serious problem as a result of Christopherson’s actions. I also doubt that the sales results Christopherson was able to obtain for the company will fully compensate Prosper for the direct and indirect consequences of Christopherson’s actions. As I suggested above, this type of harsh conduct already led to one resignation (Hudgens), who presumably was a capable (and “determined” and “loyal”) employee. Whether others will elect to resign remains to be seen. Whether the publication of these events will have a negative impact on Prosper’s recruiting/hiring efforts also is an open question. But, again assuming that the facts as reported in the judicial opinion are later established, would you want a family member working for an organization that either condoned or tolerated waterboarding of its employees? Of course, there are the attorneys’ fees associated with the defense of the action regardless of its merits, along with the consumption of management time in non-income producing activities (depositions, discovery responses, motion practice, hearings, trial, etc.). Finally, if Hudgens is successful in overcoming the procedural hurdles he is confronting (essentially, a workers’ compensation exclusivity argument), and persuades a jury that he has been harmed, the employer faces the risk of an adverse judgment. Given these potential adverse consequences, it is difficult to understand how the short-term benefits asscoiated with this harsh management technique could possibly be justified.
Bottom line: trust your instincts. If you have concerns about the impact of a manager’s behavior on the workforce, a jury will likely have concerns as well. Take action to eliminate this type of conduct from the workplace.