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Jonathan A. Segal
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I am pleased to share my latest post to the SHRM blog.

Last night was the 88th broadcast of Academy Awards. And, even if you didn’t watch it, then you know that not one person of color was nominated for an Oscar in the categories of best actor or actress in either a primary or supporting role.

The host was Chris Rock. And, with humor and perspective, he nailed it…effectively by reframing it.

The absence of award nominations for actors of color was less about the nominations themselves and more about the absence of acting opportunities for actors of color. If you don’t have access to the opportunities, then it goes without saying you cannot win.

To quote Chris Rock:

“What I’m trying to say is it’s not about boycotting or anything. It’s just we want opportunity. We want the black actors to get the same opportunities as white actors. That’s it. And not just once. Leo gets a great part every year. All these guys get great parts all the time. But what about the black actors?”

Rock’s comments apply not only to black actors but also to Asian American and Hispanic American actors. Why are there not more roles for actors who are Asian American or Hispanic American?

Now, you may be tempted to say: who cares about Hollywood! Avoid that temptation; access issues are not limited to the entertainment industry.

Outside of Hollywood, we see a glaring absence of diversity in many senior leadership teams. And, there also is a clear gender pay gap in many organizations, even if people debate the degree of the gap.

I would suggest that, in many situations, what we see is the symptom of the underlying problem: the absence of meaningful access to assignments and opportunities that create the credentials for promotions and higher pay. How do we address the access problem?

Well, that goes beyond the scope of this brief blog. But the first step is acknowledging the root of the problem so that we can focus our corrective action there.

Yes, this is about fairness. Fairness always matters.

But there also is the business imperative. Diverse leadership teams are more successful, and you cannot get to the top unless you have had equal opportunity to access along the way.

Last night, Chris Rock rocked it with his root cause analysis. The success of our own organizations will depend, in part, on how we respond to the clarion call to focus on equal access opportunity.

About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .
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James R. Redeker
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The NLRB has reversed the ALJ in Whole Foods and held that audio and video recording by employees in the workplace cannot be prohibited except in very rare cases. Unless you are a hospital and need to protect the privacy of your patients or a manufacturer with a secret sauce, employees now have to be permitted to make audio and video recordings on the job.

The words of the Board’s majority say it all:

Photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media are protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present…Such protected conduct may include, for example, recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions. (emphasis added)

In Whole Foods, the company’s rule against recordings in the workplace was prefaced by a statement of the reason: to remove all barriers to a free and unfettered exchange of ideas.  This, the Board said, was unlawfully ambiguous and a reasonable employee would believe that the rule would be used to chill concerted activity.  Really!?

The Board’s rule is the chiller, freezing out free and unfettered exchanges of ideas in any workplace.  When a supervisor seeks to have a coaching session with an employee and the employee sticks a cell phone camera in her face, she will not coach and the employee will not receive the benefit of her experience.  What the employee gets is nothing because nothing will be said other than the most vanilla comments.  There certainly will be no unfettered exchange of ideas.

This is statutory construction run amuck.  My guess is that none of the Board members has ever run a business, had to make a payroll or needed to stimulate teamwork.

Hopefully, a Circuit Court of Appeals will return us to a reasonable perspective.

About James R. Redeker
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James R. Redeker represents both organized and unorganized companies in their personnel and labor relations. In that connection, he becomes directly involved in equal employment, wage and hour, occupational safety and health, collective bargaining, contract administration and National Labor Relations Act issues, representing companies before all enforcement agencies concerned with these matters as well as the courts.