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

I had the opportunity to talk randomly with a number of #SHRM16 attendees and ask them one question.

The question is based on Steve Wonder’s “I Wish.”

I asked people what they wished were different about their day to day HR jobs. Here are the top 5 top answers I heard.

1. I Wish I Had More Time with the People (Outside of Emergencies)

Spending positive time with employees is more than just an aspiration. It is essential to effective human resource management.

Employees need to know that they matter. And, they won’t if you don’t acknowledge that they exist.

Make sure your employees know that they are valued and appreciated. There is no better way you can do so than to spend time with them.

2. I Wish I Spent More Time with Strong Workers

No question: we all spend more time dealing with struggling employees than we do with those who meet or exceed expectations. Sometimes, it feels like we spend 85% of our time on the 15 percent who don’t meet expectations.

We can’t reverse the percentages, but we can move the dial.  As with everything that is important, reserve time to interact with your solid players and stars.

Don’t just thank them.  Ask them how you can make their work lives easier.

They are often the least likely to complain. They sometimes have the best ideas.

3. I Wish I Spent Less Time On Compliance.

We are talking about human resources, not legal resources.  So your job should not be only about legal compliance.

Even so, legal compliance is a key part of each of your jobs.  The question is how to integrate the legal with other aspect of your jobs.

Think, and show, how legal compliance is in the best interests of the Company’s business. For example, employees who are or feel harassed are diverted from giving their all toward your organization’s mission.  That does not even address the cost of litigation.

And, try to think of compliance as values. While sometimes the regulations are burdensome, employment laws focus on important issues. Thinking of the values underlying the laws makes dealing with the more onerous regulations a little easier.

4. I Wish I Were Not In the Middle So Often

Let’s face it. We often are in the middle. And, sometimes, we get hit from all sides. Remember this?

Employees complain that they are working too hard and have no lives. Some managers complain employees are not working hard enough and spend too much time on their lives.

Remember, you are not a neutral. You are part of management. But you still can help bridge the gap.

For the benefit of the business, let managers know that there is only so much employees can give. By asking for a  a little less, you may actually get a little more.

And, let employees know that more is expected of all of us. Accepting it is more productive than fighting it.

Of course, no one will be fully happy, but you already knew that. But at least you can help the bridge the gap in expectations so it is not insurmountable

5. I Wish I Could Have More Fun

Let’s face it: the SHRM conference is fun.  We all love seeing our friends and colleagues with whom we may connect primarily on social media.

Well, without the help of SHRM, you probably cannot have a party with 15,000 people. But you can have more fun with your colleagues. And I encourage it.

But here comes the lawyer. Be careful when you blow off steam that you don’t say something that could bite you in litigation. Share about frustrations (where they exist). But don’t talk about specific employees or pending, threatened or actual claims. There is no “HR” privilege from discovery.

Let me end this blog by playing a song that I hope will bring a smile to your face.  Just substitute “HR” for “girls”.

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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Jonathan A. Segal
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I am pleased to share my latest post to the SHRM blog regarding the EEOC’s report on harassment in the workplace.

Today marks the 30th Anniversary of the Supreme Court’s holding that sexual harassment is a form of sex discrimination. It seems obvious to all of us today, but it was not at the time the EEOC took the position. It was not until SCOTUS said the EEOC was right that the EEOC’s enforcement position became the law of the land.

Today, SHRM had the honor of having EEOC Commissioners Chai Feldblum and Victoria Lipnic present, to an overflowing crowd, “Agency Update: EEOC’s Task Force on Harassment in the Workplace.” After receiving a warm introduction from Lisa Horn, SHRM’s Director of Congressional Affairs, who acknowledged the strong relationship between SHRM and the two EEOC Commissioners, the two EEOC Commissioners talked about the reason for the Select Task Force, the study it conducted and the report it is releasing tomorrow (Check out www.eeoc.gov).

The Task Force was announced in January of 2015 by the EEOC’s Chair, Jenny R. Yang. Her message: We have made a lot of progress, but the problem is persistent. She named Commissioners Feldblum and Lipnic as Co-Chairs of the Task Force.

Commissioners Feldblum and Lipnic made clear the purpose of the Select Task Force was to prevent harassment before it becomes actionable. This includes not only sexual harassment claims but also harassment claims based on other protected groups, such as race, color, age and religion.

Last year alone, the EEOC collected $164.5 million for workers in cases alleging harassment. That does not include recoveries by plaintiffs’ lawyers.

For employers, however, harassment is not only an economic risk, but also a business risk. First, there is the reputational cost. There also is decreased productivity and higher turnover.

The Commissioners emphasized that having policies and procedures is not enough. According to the Commissioners, the importance of leadership is key.

Leaders must make clear that harassment will not be tolerated. But a commitment (even from the C-Suite) is not enough. Like all other employees, leaders must be held accountable for what they do—and what they don’t do.

There must be a “proportionate” response to harassing behavior. To use an expression familiar to all of us in the HR community, “one size does not fit all.”

But, it is more than holding all employees accountable for unacceptable conduct, even “superstars” who bring in the money. The Commissioners emphasized we must hold accountable those whose job it is to prevent and correct harassment.

Although these were not the precise words used, the message for supervisors and above was clear: to see or hear harassing behavior and do nothing is to condone it.

Throughout the discussion, the Commissioners made clear that, when talking about harassment, they were talking about inappropriate behavior with regard to a protected group (such as sex, race or ethnicity), even if it does not rise to the level of severity or pervasiveness to be actionable. The goal: to stop it before it becomes actionable.

That led to a critical discussion about training. The Commissioners made clear that, while training is necessary, it alone is not enough. Rather, it must be part of a “holistic culture of non-harassment that starts from the top.”

Further, to be effective, the training ideally should be “live, in person and customized to your workplace.” Moreover, the training should be developed with “risk factors” in mind.

The EEOC report that will be released tomorrow includes “risk factors” that make harassment more likely. Younger workers, workers who work in remote locations and those who are dependent on tips, for example, are at particular risk.

Based on my experience, I agree fully with the EEOC that the training must focus on what is inappropriate, even if it is not necessarily unlawful. If you focus only on the legal, then individuals who engage in inappropriate conduct may feel more secure in their inappropriate conduct because it is neither severe nor pervasive enough to be illegal.

The EEOC Commissioners also talked about “bystander training” that is common on many school campuses. They talked about adopting this kind of training so that co-workers feel empowered to intervene and have the tools to do so.

Recognizing that the law does not require civility, the EEOC Commissioners also called for civility training. Feldblum said that incivility and disrespect are “gateway drugs” for harassment. I agree.

Stated otherwise, if you tolerate incivility and disrespect, your culture will be fertile for harassment claims. I surely hope the NLRB was listening.

To minimize your NLRB risk, employers are well advised to give examples of civil and uncivil behavior. Providing specific examples, properly phrased, makes it less likely that the NLRB will believe a reasonable person will perceive the guidance as discouraging behavior protected by section 7 of the NLRA. So there is no confusion, this is my take on how to mitigate (not eliminate) the risk.

An underlying theme is the importance of creating not only policies, but also a culture that brooks no retaliation. Fear of retaliation is the number one reason why employees suffer in silence.

According to studies cited by the Commissioners, approximately 70-percent of employees who feel harassed do not report it. That is not good for them or their organizations.

The EEOC’s presentation was a clarion call for all of us to do more to prevent and stop harassment. It will not go away on its own. It’s on all of us, with HR playing a key role, to be part of the fight.

On a personal note, it was an honor to have been on the Task Force with co-SHRM member Patricia Wise. I think I can speak for Patty and me in saying that we both learned a great deal as a result of the study and dialogue, and we are ready to help do our part in helping companies do the right things for their employees and themselves by eliminating the persistent but conquerable problem: workplace harassment.

Finally, at a time when we see so much dysfunction in Washington, D.C., it was inspiring to see the bi-partisan collaboration of Commissioners Feldblum and Lipnic. Bi-partisanship is not dead—at least not at the EEOC.

This blog is not legal advice.

About Jonathan A. Segal
1146
author_image
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 .