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Category: Diversity

Ohio Overtime Law Will Look More Like the FLSA Starting in July 2022

Effective July 6, 2022, Ohio’s wage and hour law will more closely align with the federal Fair Labor Standards Act (FLSA). Ohio Governor Mike DeWine signed the changes into law on April 6, 2022 as Senate Bill 47. The changes will be codified in a new Section 4111.031 of the Ohio Revised Code.

The first set of changes concern what activities are considered compensable “hours worked” for purposes of calculating overtime pay owed to non-exempt employees. Under the new Ohio law, time spent in the following activities will not count as “hours worked” for state law purposes, subject to certain exceptions set forth in the law:

(1) walking, riding or traveling to and from the workplace;

(2) “preliminary” activities (performed before an employee starts their principal work activity) and “postliminary” activities (performed after an employee ends their principal work activity); and

(3) “de minimis” activities, i.e., those requiring insubstantial or insignificant periods of time beyond an employee’s scheduled work hours.

Notably, the language in the new Ohio law does not track the FLSA precisely. For example, unlike the FLSA, the new law says that “preliminary” and “postliminary” activities do count towards overtime hours if an employee performs them either during their regular work day, during prescribed work hours or at the specific direction of the employer. Also, whereas the Ohio law defines “de minimis” time as “insubstantial or insignificant” periods of time, the U.S. Department of Labor describes “de minimis” time for FLSA purposes as “infrequent and insignificant” periods of time that cannot as a practical matter be precisely recorded for payroll purposes. Thus, although the new Ohio law appears to simplify compliance for employers familiar with the FLSA, as they say, the “devil is in the details.”

The second change to Ohio overtime law concerns the procedural mechanism to bring a class action for alleged overtime pay violations. The new law prohibits “opt out” class actions for claims brought under Ohio’s overtime law. Aligning with the FLSA, Ohio law will permit only “opt in” collective actions.  So-called “hybrid” class/collective actions will be a thing of the past for Ohio employees seeking to recover alleged unpaid overtime. Practically speaking, this change in procedure shifts the leverage substantially in employers’ favor.  

In light of the upcoming changes to Ohio law, employers with non-exempt employees in Ohio may want to take a fresh look at their policies and on-the-ground practices. Among the wage & hour issues to look out for are: how employees track their time; when employees start and end their work day; how overtime pay is calculated; and whether supervisors have a keen view of employees’ actual work activities.

3 Cheers for Cheer—and 3 Lessons on How to Manage

Posted by Michael S. Cohen

Netflix series Cheer is a lesson on how to manage a diverse group of team members in highly stressful and seemingly ever-changing situations. Read my article on Training Magazine.

In the COVID-19 world, many of us have caught up on some of the must-watch Netflix series we missed before the pandemic struck. For me, one of those binge-worthy shows is Cheer. At its core, Cheer is a sports reality-drama that chronicles the Navarro College Cheer Team in its quest to repeat as National Collegiate Cheer and Dance Champions in Daytona, FL. (Partial spoiler alert: While I will not mention the result in Daytona, I will discuss some of the situations that arose on Navarro’s journey).

We meet incredibly compelling members of the cheer team such as Gabi, the superstar; Morgan, the driven; La’Darius, the emotional; and Lexi, the wild child. Each of the student-athletes has an incredibly compelling, and often heart-wrenching and heart-breaking, back-story. It is a story about an eclectic group of teammates whose common goal of a national championship brings them together.

Cheer also is the story of their coach, Monica Aldama, whose finance degree from the University of Texas seemingly has put her in the business of changing lives. Her success “on mat” is unquestionable, having led her Bulldogs to 14 NCA National Championships. But it was how Monica led her squad, off mat and in all facets of their lives at Navarro and outside of Navarro, that makes Cheer so compelling. Monica is a leader and her team loves her. Equally important, the respect each of them has for her is palpable. While the team clearly has an enormous level of individual talent, it is Monica’s deft touch and clear understanding of how to manage that allows the Bulldogs to attain their unparalleled level of success as a team. For me, Monica’s leadership style was phenomenally compelling. She understood how to get the most out of this wildly diverse group in a way that earned utmost respect.

As managers, we often bear the responsibility of providing our constituents the tools they need to make their organization the best it can be. Monica provides a tremendous example we can use to teach our managers how effectively to lead and how to get the most out of, and motivate to the fullest, the team members who report to them.

Instill Loyalty

Her athletes refer to her as “Queen.” And they mean it. In their eyes, Monica represents almost a higher power. She is respected. She is revered. She is worshipped. As one team member described in a particularly tension-filled moment, “people have broken their necks doing this, but Monica needs me to do it, so I’ll just do it. I would take a bullet for her.”

Another explained, “She’s my best friend and my mentor and my mom figure.”

This undeniable loyalty Monica has earned—and note that this brand of devotion and obedience is earned, not simply given due to her title—is something all managers should attempt to obtain from those who report to them. But how? How did Monica convince this group of uber-cynical teenagers and those in their early twenties to follow her, unquestioningly and unwaveringly? It’s not complicated: absolute honesty.

Monica is brutally honest. She tells her athletes the truth, whether they want to hear it or not. The world of competitive athletics may be the backdrop in Cheer, but our workplaces require the same level of transparency. Our employees must trust their managers implicitly, and the only way for that to happen is if the managers are willing (they all are able) to deliver the bad news, as well as the good, in person or in our new virtual environment. Whether it’s through informal coaching, formal counseling, or during the delivery of a performance appraisal, and whether it is face-to-face or over Zoom, communicating to our employees the realities of the situation will give those employees an opportunity for improvement, with the manager’s assistance throughout the process. This speaking of truth and standing shoulder-to-shoulder with employees to support their efforts throughout the journey will have the impact we seek—employees’ understanding that their manager has their backs. In return, the manager will enjoy the reciprocal feeling—one of unadulterated loyalty from employees.

Be Prepared for Any and All Contingencies

If there is anything we have learned since March 2020, it is that, as managers, we have to be ready for anything. Agility and flexibility have become touchstone traits of effective managers. In the world of sports, we hear the phrase all the time, “next man/woman up.” More often than not, this refers to a replacement for someone who has sustained an injury that renders them incapable of playing or who did something (or didn’t do something) that results in the coach’s decision to insert a substitute.

The Queen, was, well, for lack of a better word, a Queen at being ready for the anticipated, and even more importantly, the unanticipated situation that confronted her. Monica was unflappable. As part of the team preparation for Nationals, she had the team practice “mess-up scenarios.” She understood that not all routines, no matter how well-conceived and rehearsed, go as planned. She fully comprehended that athletes struggle from time-to-time, and those struggles must be dealt with quickly swiftly and decisively. Whether it was due to injury (Sherbs), a sub-standard performance “on mat” (Will), or because of a less-than-stellar-attitude (La’Darius), Monica seemingly was always several steps ahead of everyone and knew exactly who the “next man/woman” up would be.

Effective managers anticipate the unexpected and are ready, immediately, when it occurs. My wife, spot-on-accurately, if less-than-empathetically, refers to this as the “Mack truck effect.” Are you, as a manager, ready to go on if your key performer were hit by a Mack truck? If an employee leaves the organization with little or no notice, if an employee’s performance suddenly takes a massive turn for the worse, if an employee is caught stealing and has to be terminated, is your manager ready to make the changes necessary without losing effectiveness and productivity?

Manage Without Judgement

In an early episode, Monica discussed that she was raised in Corsicana, TX, a tensely conservative environment, and described herself as “religious, more conservative, and a little bit old school with values.” Navarro College’s generally similar ideological approach is portrayed in a scene where a professor describes herself as “the biggest gun-totin’ broad you ever did see” and shares with her class that she believes a marriage can only exist between a man and a woman. This placement of these two conversations in the series is obvious in its intent—many members of the Navarro Cheer Team are openly gay. So how is Monica able, so successfully, to lead her team against the backdrop of her own upbringing and the hyper-conservative environment in which she coaches? It’s simple, really. She is, at all times, a judgment-free advocate for her athletes.

Managers take heed. You are not going to agree ideologically, politically, and on myriad other bases with all of your employees. So what? Does it really matter, from a performance and efficiency standpoint, that your employee is a Boston Celtics fan? As a die-hard Sixers fan and Process-Truster, I say, well, maybe a little. Just kidding! Of course, it doesn’t. Do you care, from the perspective of maximizing effectiveness, whether your subordinate voted the same way you did in the last mid-term election? Certainly not. Your vales will never be shared with all of your employees and vice versa. I view this as a positive. Aside from teaching tolerance and acceptance of other people’s views, it brings a diversity of ideas into the workplace—ALWAYS a good thing. Be open to new perspectives and different ways of thinking about an issue. The linear route to issue spotting and problem solving often is not the best one. Open your mind to diversity of thoughts and you will be rewarded—perhaps not with a national championship, but rather with a more efficient, effective, and energetic workforce.

Cheer is a compelling series with interesting characters. But it’s far more than that. It’s a lesson on how to manage a diverse group of team members in highly stressful and seemingly ever-changing situations. Managers, watch it for entertainment, but listen carefully to it for the education.

Illinois Publishes Guidance on Annual Disclosure Report

In follow up to our prior Alert for employers with employees or others performing services in Illinois, the Illinois Department of Human Rights (IDHR) now has published a downloadable disclosure report (2019 Form IDHR 2-108) for employers’ use under the Illinois Workplace Transparency Act (WTA).  The IDHR Report of Final Non-Appealable Adverse Judgments/Administrative Rulings may be used by Illinois employers to satisfy their annual disclosure reporting of certain judgements or rulings issued in harassment and discrimination matters under the new requirements of the WTA.  The IDHR previously published new guidance in the form of a FAQ for employers that outlines the annual disclosure report content and format for the reporting period that began July 1, 2020. Employers must file their first report under the WTA by October 31, 2020, for data on matters from the 2019 calendar year.

Chicago Fair Workweek- Things to Watch

Posted by Jennifer Long and Daniel Canales

Things to Watch

The City of Chicago City Council committee with responsibility for employer-related issues has advanced two separate ordinances intended to respond to the COVID-19 pandemic. The full City Council is expected to vote on both of these proposed ordinances on May 20, 2020. Watch for our follow up report after the City Council vote for further developments and additional compliance tips.

Chicago Fair Workweek Ordinance Amendment

Originally signed into law by Mayor Lori Lightfoot in July 2019 with an effective date of July 1, 2020, the Chicago Fair Workweek (CFW) Ordinance requires certain private sector employers to provide eligible employees making less than $26/hour or $50,000/year with a number of predictive scheduling protections, which include:

• Pre-employment good faith written estimate of the employee’s projected days and hours of work
• Advance notice (beginning with 10 days, increasing to 14 days in 2022) of the employee’s work hours and schedule
• Right to request schedule modifications
• Right to decline certain previously unscheduled hours without adequate rest periods
• Right to “predictability pay” for any schedule changes made within the defined advance notice period

Additional compliance requirements are detailed in our prior summary of the CFW Ordinance included at Number 8 in our Ten New Employment Laws for Illinois Employers in 2020.

The CFW Ordinance was set for full implementation on July 1, 2020, but on May 11, 2020, the Chicago City Council’s Workforce Development Committee members approved an amendment which will defer one of the enforcement provisions until January 1, 2021. The deferred provision prevents employees from being able to file private lawsuits against employers for failing to adhere to the advance scheduling rules. City Council members indicated that postponing the private cause of action section of the ordinance is intended to provide struggling businesses with additional time to implement the CFW Ordinance requirements without fear of lawsuits within the first six months.

COVID-19 Anti-Retaliation Ordinance

In the wake of the COVID-19 pandemic, the Chicago City Council Workforce Development Committee also has advanced an ordinance that protects employees from retaliation for the employee’s following any public health guidelines issued by the mayor, governor, or Chicago Department of Health, or a health care provider’s direction requiring an employee to stay home to minimize COVID-19 transmission.

Covered employees who feel like they have been fired or demoted in violation of this new COVID-19-related anti-retaliation requirement may submit a complaint to the Chicago Office of Labor Standards, who will investigate the claims. Employers found in violation of the ordinance could fined up to $1,000 per offense per day and also face private civil action by employees seeking reinstatement, damages and attorneys’ fees.

Coronavirus (COVID-19): What Employers Should Do Now and Business Continuity Planning

Upcoming DMi webinar series, Coronavirus (COVID-19): What Employers Should Do Now and Business Continuity Planning, will be presented by Linda B. Hollinshead, Eve I. Klein and Jonathan A. Segal.

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Coronavirus (COVID-19): What Employers Should Do Now and Business Continuity Planning

Upcoming DMi webinar series, Coronavirus (COVID-19): What Employers Should Do Now and Business Continuity Planning, will be presented by Linda B. Hollinshead, Eve I. Klein and Jonathan A. Segal.

Coronavirus (COVID-19): What Employers Should Do Now! Wednesday, March 11th, 2020 from 11:00 AM to 12:00 PM ET

Coronavirus (COVID-19): Business Continuity Planning for a Pandemic Wednesday, March 18th, 2020 from 2:00 PM to 3:00 PM ET

Click here to register for both programs

Coronavirus (COVID-19): What Employers Should Do Now! Wednesday, March 11th, 2020 from 11:00 AM to 12:00 PM ET

Coronavirus (COVID-19): Business Continuity Planning for a Pandemic Wednesday, March 18th, 2020 from 2:00 PM to 3:00 PM ET

Click here to register for both programs

Age Bias – Okay Boomer, You Want WHAT Job?

Upcoming DMi webinar, Okay Boomer, You Want WHAT Job?, will be presented by Jonathan A. Segal and Elisabeth G. Bassani. The webinar will broadcast on Tuesday, March 10th, 2020 from 1:00 PM to 2:00 PM.

Click here to register

It is predicted that, within the next year or so, 1 in 5 applicants and/or employees will be 55 or older. Most, but not all, are baby boomers.

Join Jonathan Segal and Elisabeth Bassani as they discuss practical steps employers can take to mitigate conscious, implicit and systemic age biases in recruitment and selection as well as in performance management and reductions in force. The talent imperative is as important as mitigating risk; older employees are a crucial source of talent for employers who often struggle to find qualified talent.

While the program will begin with some misconceptions on age discrimination, it will focus on implicit, systemic and conscious age bias. Indeed, some individuals acknowledge their age bias if it were not an issue; it is.

With regarding to recruitment, particular attention will be paid to advertisements online, through social and professional networking sites. As recent lawsuits reveal, the algorithms behind these advertisements can systematically exclude the older workforce and expose employers to age discrimination claims.

With regard to reductions in force, particular attention will be paid to “subgroup” analysis. Looking at “under 40” and “40 or over” is not enough!

This webinar is the first in a series of webinars on the challenges employers face as five generations not only work together but also, to some degree, compete against each other.

Click here to register

Age Bias – Okay Boomer, You Want WHAT Job?

Upcoming DMi webinar, Okay Boomer, You Want WHAT Job?, will be presented by Jonathan A. Segal and Elisabeth G. Bassani. The webinar will broadcast on Tuesday, March 10th, 2020 from 1:00 PM to 2:00 PM.

Click here to register

It is predicted that, within the next year or so, 1 in 5 applicants and/or employees will be 55 or older. Most, but not all, are baby boomers.

Join Jonathan Segal and Elisabeth Bassani as they discuss practical steps employers can take to mitigate conscious, implicit and systemic age biases in recruitment and selection as well as in performance management and reductions in force. The talent imperative is as important as mitigating risk; older employees are a crucial source of talent for employers who often struggle to find qualified talent.

While the program will begin with some misconceptions on age discrimination, it will focus on implicit, systemic and conscious age bias. Indeed, some individuals acknowledge their age bias if it were not an issue; it is.

With regarding to recruitment, particular attention will be paid to advertisements online, through social and professional networking sites. As recent lawsuits reveal, the algorithms behind these advertisements can systematically exclude the older workforce and expose employers to age discrimination claims.

With regard to reductions in force, particular attention will be paid to “subgroup” analysis. Looking at “under 40” and “40 or over” is not enough!

This webinar is the first in a series of webinars on the challenges employers face as five generations not only work together but also, to some degree, compete against each other.

Click here to register

2020 Navigation Guide for the West Coast: Employment Law Update

Excited to share that we will be starting our 2020 West Coast Employment Law webinar series soon! Join us as we review important employment law changes to California, Washington and Oregon state laws and preview what’s to come in 2020.

Click here to register for our 2020 Navigation Guide for the West Coast: Employment Law Update series now now!

Click here to register for 2020 Navigation Guide for the West Coast: California Employment Law Update

Click here to register for 2020 Navigation Guide for the West Coast: Washington Employment Law Update

Click here to register for 2020 Navigation Guide for the West Coast: Oregon Employment Law Update

Faith

Faith. My blog on the Holiday:

For many years, I have written the ongoing tale, the Jewish Guy Who Wears A Chai, about the potential minefields HR professionals must navigate during the holiday season.  In order to address what can be real risks, I have employed a touch of sarcasm, and by a touch, I mean a ton. 

This year, I am going to park my snark and focus on what the holidays are primarily about but which increasingly employers tend to guardrail against: faith.  In many workplaces, we invite employees to be their authentic selves, except where faith is concerned.

We support employee resource groups based on race, gender and sexual orientation, for example.  But a bible study group? Almost never!

We encourage employees to be kind to each other.  But, please, don’t wish a colleague a “blessed” day.

Diversity initiatives have various themes from ethnicity to gender identity.  But religion is rarely one and, if religion is included, it often means, effectively, “other than Christian.”

This holiday season I know of a few employers who are having a “December Dinner” or the equivalent. That way they won’t offend anyone.  How wrong they are.

For many of us, faith is an important part of who we are. And, an employer’s celebration of the holidays is but one small way to recognize this reality. 

When employers remove any reference to or symbols of Christmas, they are sending a message of exclusion in their aim for inclusion. For example, don’t remove the Christmas tree; instead, add a Hanukkah menorah and Kwanzaa basket, too.

Of course, not everyone celebrates religious holidays at this time of year or at any time.  We want these employees to be and feel included, too.

We can help maximize inclusion in our holiday celebrations if we find a way to demonstrate a common denominator of all faiths or people of good faith but of no particular faith.  One such way is for the employer to make a contribution to a non-religious charity.

Consider, for example, pediatric cancer, victims of domestic violence or animal welfare.  Can anyone reasonably object?

By picking a non-religious charity, we include all. By focusing on charity, we highlight what is a common denominator of all faiths of which I am aware: caring for others less fortunate.  And, by others, I include our animal friends in shelters waiting to love and be loved.   

So, this year, pick a charity and make a donation in honor of your employees. Make sure to involve employees in the selection of the charity.  

When we help others, we feel better about ourselves. Doing good feels good.

It also feels good to wish people well. So, indulge, I will.

For those of you who celebrate Christmas, may the peace and happiness of Christmas be yours. 

For those of you who celebrate Kwanzaa, may it be a joyous holiday.

For those of you who celebrate Hanukkah, I will be lighting a candle with you to celebrate our resilience. And, yes, I will be wearing my grandmother’s “Chai,” the Hebrew letter than means life. 

For those of you who celebrate holidays at other times in the year or don’t celebrate holidays, I wish you well just as well.

I end with the essence of this year’s blog. To quote Sir Winston Churchill: “We make a living by what we get. We make a life by what we give.” 

This blog is not legal advice.

Follow me on Twitter at:  @Jonathan__HR__Law.

Sex and the CEO

Please see attached blog post by Jonathan A. Segal, published in the Corporate Board Member.

Arbitration Agreements: Everything You Need to Know (But Were Afraid to Ask)

Interested in signing up for this program? Click here to register for Arbitration Agreements: Everything You Need to Know (But Were Afraid to Ask) now!

Click here to register for Arbitration Agreements: Everything You Need to Know (But Were Afraid to Ask) now!

Successful Harassment Prevention Programs in the #MeToo Era

Thank you WorkForce for publishing my article on the 10 points to keep in mind for anti-harassment training regardless of the size of your company or industry.

From the instant I first saw the hashtag #MeToo on Twitter, I had a sense that my professional life might get busy to a degree I had never experienced.

I am an employment lawyer who has spent the better part of the past decade building a practice, the centerpiece of which has been conducting human resources and employment law trainings for organizations of all kinds. The importance of harassment prevention was going to be at the forefront not only for HR professionals (a place it had existed for some time), but finally also for executives and directors.

For each city I have traveled to since 2018 — and by my count that is roughly 100 — my 11-year-old daughter has photoshopped a picture of me in my Philadelphia Eagles T-shirt next to something unique about city to which I’m traveling.

For Detroit, it was a picture of Eminem and me on 8 Mile Road. In Irvine, California, I stood with the cast of the television show “The OC.” And, of course when in Washington, D.C., it was “the other” Michael Cohen and me in front of the Jefferson Memorial, with the hashtag #ImNotThatMichaelCohen. In other words, while travel can be difficult, I’ve been trying to have some fun with all the time I spend on the road.

The purpose of all of these hours, days and weeks on the road has been and remains to be critically important. Since the beginning of 2018, I have conducted more than 350 harassment prevention trainings for organizations of all shapes and sizes.

In many senses, the experiences have differed and diverged greatly from each other. Of course a harassment prevention training for a National Hockey League team might feel different than one for a federal agency, Fortune 50 company, energy investment firm, regional law firm, startup or local nonprofit.

While the differences in experiences may be real and trainings must be modified in a way to be meaningful for the particular organization, the fact remains: There are certain goals that are absolutely necessary for a successful harassment prevention training in light of the current climate in the U.S. workplace. 

10 Goals for Harassment Prevention Trainings

1. To ensure that all employees feel safe at work.

2. To educate all employees about what is and is not appropriate workplace conduct. This absolutely increases employee respect and satisfaction, enhances efforts toward retention and recruitment and decreases the likelihood of claims.

3. To alert management that they must report to HR (or the appropriate person/body) all inappropriate behavior based on protected class, whether the behavior was reported to or observed by them (even in absence of a complaint).

4. To notify all employees about the organization’s internal complaint procedure and, accordingly, their different and ideally diverse points of contact for raising complaints of inappropriate workplace conduct.

5. To make employees more aware of, and sensitive to, the fact that other people inside the organization have perceptions far different from their own. This recognition is critical.

6. To educate management about the illegality of, and the very real business risks associated with, retaliation.

7. To ensure that all employees understand that certain explanations are not defenses to inappropriate workplace conduct (e.g., “I didn’t mean any harm by the statement,” “I was just kidding around,” “I didn’t mean for her/him to hear it,” “That’s just who she/he is and always has been,” etc.).

8. To let all employees know that “what happens in Vegas” (read: outside the office) never stays in Vegas. Inappropriate conduct outside the workplace unquestionably has the impact of affecting relationships inside work and therefore must be avoided. When it occurs it must be addressed immediately.

9. To notify all employees that the organization takes extremely seriously any form of inappropriate conduct, that the organization will investigate all such issues promptly and thoroughly and that when inappropriate conduct occurs potentially severe disciplinary action will be taken.

10. To ensure that managers fully appreciate their legal obligations with respect to inappropriate workplace conduct — what we call the five Rs of supervisory or managerial responsibility.

Refrain from inappropriate conduct, broadly defined.

Report to HR (or the designated member or department or committee of the organization) all complaints of harassment, discrimination, retaliation or inappropriate behavior based on protected class.

Respond proactively, even in the absence of a complaint.

Remedy any inappropriate conduct, making sure the remedy is focused on the wrongdoer as opposed to the complainant.

(Don’t) Retaliate.

As we all know, the #MeToo movement has created a great deal more awareness of workplace harassment generally and sexual harassment specifically. As an absolute direct result, organizations of all types throughout the country have implemented robust and meaningful training initiatives designed to ensure that their workplaces are safe and free from harassment, discrimination and retaliation.

The organizational desire to do right and the decision to train all employees is a critical part of the battle. But, that desire and decision are not enough. Demanding that the program put in place to prevent inappropriate workplace conduct is essential, and it is only this kind of training that will assist in creating and maintaining the workplace we all know is necessary.

Suicide Awareness: 11 Suggestions for Employers

This week is suicide prevention week.  The problem is much more serious than many realize. Read my post for SHRM on how to create a safe and supportive environment for your employees.

According to the Centers for Disease Control and Prevention (CDC) WISQARS Leading Causes of Death Reports, in 2017:

  • Suicide was the tenth leading cause of death overall in the United States, claiming the lives of over 47,000 people.
  • Suicide was the second leading cause of death among individuals between the ages of 10 and 34.
  • There were more than twice as many suicides (47,173) in the United States as there were homicides (19,510).

But not everyone who attempts suicide completes it.  How many attempts?  According to the American Foundation for Suicide Prevention, there were 1,400,000 suicide attempts in 2017.  https://afsp.org/about-suicide/suicide-statistics/. Yes, 1.4 Million!

When you filter in those who have considered suicide, the numbers are even more staggering.  Based on data from the 2017 National Survey on Drug Use and Health (NSDUH) by the Substance Abuse and Mental Health Services Administration (SAMHSA), 4.3 percent of adults age 18 and older in the United States had thoughts about suicide in 2017.

In response, one may ask:  do employers have a duty to prevent, or at least try to prevent, suicide?  In most circumstances, the answer is probably “no,” But that does not mean employers should not focus on the issue.

The law sets a minimum.  Responsible employers who genuinely care about their employees go further.

What can you do as an employer? 

  1. Educate yourself and other leaders on suicide, including possible warning signs. Severe depression, often coupled with substance abuse, is one of the primary causes of suicide.  Do not expect employees to just “deal with it.”  Substitute “cancer” for “depression” and you will see how cold and/or ignorant someone may sound if they suggest mental illness is weakness. We need to understand the issue if we are going to help employees where we reasonably can. 
  2. Offer your employees access to professional help by way of an employee assistance program (an “EAP”). As we all know, an EAP is a very inexpensive way to offer employees anonymous support for myriad issues from substance abuse to marital problems to suicidal ideation. If you don’t have an EAP, make the business case to get one.
  3. Revisit your wellness program. Is there enough focus on mental health? Do not assume the answer is yes. We need to add light to the issue so that people do not hide for fear of societal judgment and the life-threatening risks that go with it.  
  4. Share with all employees information about the national suicide prevention hotline. I will do that just now: 1-800-273-Talk (8255). Why would you not?
  5. Consider a program for employees on the warning signs of suicidal ideation and possible sources of help. You are more likely to get employees to attend/participate if part of your focus in announcing the program is how employees may be able to help their family members and friends. Attendance is not an act of self-disclosure but concern for others
  6. Emphasize when you discuss your health benefits both physical and mental health. It does not hurt to message explicitly that there is no stigma in getting mental health support—no more than getting dialysis.
  7. Consult with a mental health professional with expertise in the area if an employee is talking about suicide, directly or indirectly, or if you have an objective reason to be concerned about an employee (e.g., talking about helplessness). Obtain guidance on how to speak with the employee. Yes, requiring an employee to be evaluated by a mental health professional may create the risk of an ADA perceived disability claim. But think of the human risk if you avoid an intervention that could have made a difference.  
  8. Include in your training programs to avoid harassing behavior, the unacceptability of messages that disparage, demean or make fun of mental illness. Training should make less likely that hurtful comments, including “jokes,” will occur. 
  9. As importantly, respond to disparaging, demeaning or hurtful comments about mental illness that may occur notwithstanding the training, even if there is no complaint or objection. It is much more than avoiding legal liability for harassment; such comments may increase the unwarranted shame and potentially increase the risk of suicide. 
  10. Focus on respect in your leadership training. Being abusive may not be illegal but it is bad behavior that may take its victim to an even darker place. Bullies are weak but they inflict penetrating pain.
  11. Get help yourself if you have had thoughts about (or have attempted) suicide. It is not weakness. I cannot think of any greater act of strength. 

Wage and Hour Quicksand for Construction Companies and Engineering Firms

Excited to share that we will be starting our Wage and Hour Quicksand Webinar Series soon! We are starting off with a webinar focused in the construction and engineering industry, instructed by Christopher D. Durham and Eric W. Ruden!

Click here to register for Wage and Hour Quicksand for Construction Companies and Engineering Firm now!

Click here to register for Wage and Hour Quicksand for Construction Companies and Engineering Firm now!

Click here to any inquiries!

Hamburgers, Sushi and the Young at Heart

My latest blog for SHRM on talent acquisition and older employees:

When I used to eat meat, my favorite food was a hamburger (with French fries). I don’t think I would have been as enthusiastic if I had to order chopped cow.

I had dinner with someone eating sushi. I asked them if they would enjoy it as much if they had ordered raw fish. I owe them a dinner.

We use euphemisms appropriately to help us accept with what we otherwise would struggle. Shift away from food. Think of—or perhaps not—the alternative to “rest in peace.”

And, that brings me to older workers. Older workers are a critical source of talent as we try to fill the skill gap.

Yet, so often I find well-intended people look for euphemisms for older workers. I don’t think we do that for any other “protected group.”

I read an article about hiring the “young at heart.” I am glad their hearts may be young but what is that saying about the rest of their bodies?

Then, I hear about “mature workers.” I thought about this as I watched with childlike delight Sunday night’s game shows.

I also have heard “experienced workers.” That is true of many older workers. But some older workers, like younger workers, look to pivot into areas where they don’t have experience.

Perhaps my favorite, and by that I mean not, is “chronologically challenged.” This definitely challenges my patience, which already is challenged.

I guess it is better than “still alive.” But not by much. Grrr.

We need to look at people as individuals and not members of identity groups. But when we need to identify the group, let’s call it what it is: “older workers.”

Getting older is a gift not everyone gets. And, many of these workers have gifts they can share with and benefit your organization.

So let’s ban the euphemisms where there is no need for them. The euphemisms may be suggesting a message we don’t intend.

Avoiding Workplace Discrimination: Gender Identity and Sexual Orientation

Avoiding Workplace Discrimination: Gender Identity and Sexual Orientation

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Your Pets: July 4th and Fireworks

Fireworks on July 4 terrorize animals.

Every year, pets (particularly, but not only, dogs) left outside run away. Some are killed by cars. Others end up in shelters with uncertain fates.

Please keep your pets inside during fireworks. Consider putting them in a room with shades closed, soft music, favorite food, etc.

Note: even if you bring your dog or other pet with you to fireworks and he or she does not run away, he or she likely will be terrorized. Vets are bracing for July 5 emergencies.

The shelters are bracing, too. I am spending my afternoon at the local shelter where I volunteer to help prepare for the inevitable and avoidable July 5 nightmare.

We are not alone. Shelters everywhere are bracing: http://www.chicagotribune.com/news/breaking/ct-chicago-animal-shelters-overcrowding-20190702-goomlvcqhrhwzkiqs5i6xo4vka-goomlvcqhrhwzkiqs5i6xo4vka-story.html.

Enjoy the holiday but take care of your pets, too.

I look forward to spending July 4 with Scotty, Finny and Larry, my feline companions who do not like fireworks at all.

Pay Equity: What Does It Mean If Jared Makes More Than Keisha?

Pay Equity: What Does It Mean If Jared Makes More Than Keisha?

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Employment Law 103: A Deeper Dive

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Why Holocaust Remembrance Matters Now More Than Ever

Every year, I write a blog for SHRM on Holocaust Remembrance.   

This year, Holocaust Remembrance Day (Yom HaShoah) is next week on May 2, 2019.

This year, we are posting the blog early. Reason: so HR has time to consider some sort of Holocaust commemoration.

During the Holocaust, more than 11 million human beings were systematically murdered.  Plus, millions more died in battle. That includes American, British and other brave military forces that sacrificed their lives to save the lives of others.

Of course, every life is a universe. Every loss of life matters equally.

But the Holocaust had a disproportionate effect on the European Jewish community. Six out of nine million European Jews were murdered—the percentage is beyond staggering.   

This is personal to me. Most of my family was killed in the Holocaust and that forever informs my worldview.

Those who were saved also informs my worldview. My cousin’s mom was saved by a Catholic Church at great risk to those who were part of its community.

While I write about Holocaust remembrance every year, this year feels different. The meme #Neveragain feels less certain.

Last year, there was the massacre of 11 Jews at the Tree of Life Synagogue in Pittsburgh. Plus, there has been a meteoric spike in hate crimes against Jews across the globe in general and in the United States in particular (both before and after the Pittsburgh massacre).

Almost every week, if not every day, we see defacement of public or private property with Nazi swastikas. Indeed, we can find on line Nazi clothing and genocide games. 

For many Jewish employees, anxiety over antisemitism is materially higher. This may be even more so for those whose families were personally affected by the Holocaust.

Now: what can HR do? One way to do so is simply to post on your Intranet a remembrance statement. You can find words and images all over the Internet.

This is also an ideal topic for a diversity and inclusion program. One option to consider: invite a survivor to speak. Bear witness to someone who did.

There are so many things that HR can do. I ask only that you do something.

After the Tree of Life attack, I attended an interfaith service at my synagogue. People of all faiths, races and ethnic backgrounds were there.

I heard from Jewish, Catholic, Protestant and Muslim clergy. Political leaders from both political parties and leaders of various racial and ethnic groups who were not Jewish made sure, along with the choir of clergy, that their Jewish brothers and sisters were not alone.

I was particularly touched by the words of a Lutheran Pastor. She said, in effect:

  1.  When anything bad happens to any of us, it happens to all of us.
  2.  When we do anything good for any of us, we do something good for all of us.

Holocaust remembrance days provides all organizations with an opportunity to remind their employees of these universal truths.

I close with a quote from Holocaust survivor Eli Wiesel:

“We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.”

Leaders cannot be silent.

The Grand Poobah at Work

I am happy to share my latest blog post that discusses leadership, labels, and hierarchy. Thank you SHRM:

Let’s take a journey back to the Flintstones in Bedrock. Think of the Grand Poobah (without putting on your hat).

Now, no reasonable leader would ever refer to themselves as an employee’s Grand Poobah. Actually, some do much worse.

I was reading a memo by someone with power to an employee who reported to him. The employee had refused defiantly, without any justification, to perform multiple tasks required of him.

In response to a classic case of in-your-face insubordination, the person of power made clear by memo that, unless the employee did what his superior told him to do, he would be fired. I could not get past the use of the term “superior” ….I never can.

If the person with power is the superior, is not the person reporting to him, by definition, inferior? Grand Poobah is sounding better by the moment.

In most communications, there is no need to emphasize hierarchy. I like referring to colleagues as just that.

But there are times where hierarchy matters. So does the connotation of the word used.

To say one is superior—and by implication, the other inferior—is offensive.

How about “boss?” That sounds better, but still drips of hierarchy.

That leaves me with the obvious choice, but not as obvious to some in moments of frustration: supervisor, manager or leader. That describes what someone does, not who they are, with hierarchy implicit as opposed to explicit.

Please avoid “superior” and think twice about “boss.” Otherwise, you send a message that may result in an employee feeling devalued. When employees feel devalued, they are less likely to be engaged and more likely to be enraged. 

Have I convinced you to nix “superior?” If so, I can say only one thing: yabba dabba do! 

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

Follow me on Twitter at:  @Jonathan__HR__Law.

Objectives of Successful Harassment Prevention [Part II]

I am happy to share an addition to my prior blog post, making it a total of ten objectives of successful harassment prevention training!

I have spent the last 15 months traveling around the country, talking to organizations of the importance of harassment prevention and inappropriate workplace contact in the #MeToo era. I have provided training for professional sports franchises, Fortune 50 companies, law firms, nonprofits, etc.

Avoiding Women Is No #MeToo Answer—Good Training, Messaging Is

Men cannot engage in discriminatory avoidance as a strategy to avoid sexual harassment claims. How do we mitigate this very real risk?  My latest blog for Bloomberg:

As a result of the “great awakening” in 2017 with regard to the persistent and pervasive nature of sexual harassment (and worse), responsible employers are doing even more to prevent and respond to sexual misconduct. As we all know by now, no industry is immune.

Of course, women can harass men and there can be same-sex harassment. But, in the vast majority of cases, high profile or otherwise, it is a man of power inflicting professional, psychological and/or physical harm on a woman or women.

But now many men now feel they are the ones who are at risk. Afraid of being the target of false allegations or of being misconstrued, some men are simply avoiding women at all costs.

Avoid “at all costs” risk is not limited to Wall Street. Again, no industry is immune!

The risk was not unforeseeable. To the contrary, it was quite predictable as I noted in my article for Bloomberg in 2017.

While we should not coddle men (or women), we need to address the anxiety that some men feel. Otherwise, where leadership is male dominated, women ultimately may pay the price in terms of lost opportunities and employers may lose the benefit of their talent.

What can and should employers do?

1. Be more thoughtful on messages in training and otherwise.

Messaging matters. More specifically, for example, make clear:

  • Harassing behavior will not be tolerated, even if not “bad enough” to be illegal. But avoid “zero tolerance” messaging which may be heard as suggesting any infraction is cause for discharge. This is not the case but may provide further fuel for avoidance.
  • Every complainant will be treated respectfully; every complaint will be treated seriously; no deference will be given to the power of a person engaging in bad behavior, etc. But do not say “victims will be believed.” The negative implication for the accused is obvious: “I will have no chance to defend myself.” Foreseeable reaction: avoid those who may create this untenable possibility. Plus, the fact is not every complaint is true (or as alleged).
  • The absence of a bad intent is not a defense to bad behavior. But don’t go as far as to suggest that an employee’s perception (impact) alone determines whether behavior may be harassing. Extreme fear fodder may shut down human interactions, with women potentially paying a bigger price in organizations where men have disproportionate power.

2. Avoid avoidance.

Employers need to be very specific in their training programs and otherwise that avoidance by men of women is not an acceptable strategy for avoiding harassment claims. There is a word for such avoidance: discrimination.

But it is not enough to make the statement. Employer need to provide guidance on safe inclusion. Here are but a few examples:

Office Doors

No, it is not okay to leave the door open for meetings with women but have closed door meetings with men. Think of the insider-outsider message.

Open or closed? Look at circumstances and not chromosomes.

Social Inclusion

Yes, bars can be a bad scene for workplace interactions. Alcohol is a risk factor, and some bars are worse than others.

But don’t leave women behind because you are concerned about the environment. Change the environment. Try coffee houses, instead.

Business Dinners

Yes, there may be times when a leader may need to have a dinner with a report, particularly if the leader travels a lot. But could that invitation be seen as a request for a date?

Better to avoid the dinner if the invite could be misconstrued? No! That denies the excluded employee the benefits that go with inclusion.

Lunch may be better but, when dinner is necessary or better, be thoughtful: explain the business purpose; invite the employee to pick the time and place; limit the alcohol, etc. You might even think of a gentle way to signal you have done the same with others.

Travel

This is a big one: fear of travel. Of course, mixed-gender teams can travel together.

Please, women and men don’t need to stay in separate hotels. The issue is not hotels, but hotel rooms, which can be better thought of as bedrooms. Rule of thumb: stay out of the bedrooms of colleagues and don’t have them in yours.

Again, this applies without regard to gender. There is the insider/outsider problem if based on gender. Plus, let’s not forget same sex harassment or the fear of same.

Need to meet up? Try the lobby!

We need to address these granular issues not only in training but also day to day if we see or become aware of possible discriminatory avoidance. Beyond the scope of this article, we need to focus on steps to overcome avoidance in the context of mentoring.

3. Develop systems to address access issues.

The boys club is alive and well and fear of harassment allegations has resulted in some clubs putting additional locks on the doors. Need guardrails to break the locks.

No one size fits all but employers need to develop guardrails to prevent leaders from working only with those they feel most comfortable or safest. Implicit bias may become explicit bias because of the fear of being accused of sexual harassment.

But we must do more than establish guardrails to ensure equal opportunity to necessary and/or plum assignments, meetings, etc. We must monitor what occurs and take corrective where there is evidence that anyone is being denied opportunities for discriminatory reasons.

While I acknowledge the issue broadly, I and we should not dilute the message by failing to focus on core issue: men cannot engage in discriminatory avoidance as a strategy to avoid sexual harassment claims.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

This article is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

Objectives of Successful Harassment Prevention [Part I]

I am excited to share my thoughts and understanding on what it takes to establish a successful anti-harassment workplace.

I have spent the last 15 months traveling around the country, talking to organizations of the importance of harassment prevention and inappropriate workplace contact in the #MeToo era. I have provided training for professional sports franchises, Fortune 50 companies, law firms, nonprofits, etc.

Love Is In The Air

I am happy to share my latest post to The SHRM Blog.

Marla: “Did you know that Sally is sleeping with Gregg?”

Todd: “I heard that. How long has this been going on?”

Marla: “Not sure. Jeff?”

Jeff: “I have no idea but I do know they are a couple.”

Karen: “No kidding. Have you noticed how Sally recently is going on business trips with Gregg for no business reason.”

Jeff: “It depends on how you define business.”

Marcia: “I heard she also got a big discretionary bonus, too.”

Marla: “She really….I’ll stop there.”

Let’s assume there is a personal relationship between Gregg and Sally.

Two issues probably jumped out at you:

Is the relationship entirely welcome and consensual?

Is there any sexual favoritism as the dialogue would suggest?

Of course, these issues are critical and why ordinarily it is important not to ignore rumors or gossip about romantic relationships where there are power differentials (and why a reporting requirement imposed on the person with power if he or she is intimate with someone over whom they have direct or indirect supervisory or institutional authority).

But there is a third reason to pay attention to such rumors, and it applies even if there is no personal relationship or sexual favoritism. That is, the rumors may create a hostile work environment for the woman who is the object of them.

Citing prior case law, the federal Court of Appeals for the 4th Circuit stated crisply last month in Parker v Reema Consulting Services:

As alleged, the rumor was that Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labelled as “sluts” or worse, prostitutes selling their bodies for gain.

In short, because “traditional negative…. stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society,” and “these stereotypes may cause superiors and coworkers to treat women in the workplace differently from men,” it is plausibly alleged that Parker suffered harassment because she was a woman.

If there is sexual favoritism, the person with power should be held accountable. But regardless of whether there is sexual favoritism, the rumors need to stop. Yes, there is an argument that sometimes the “gossip” could be protected by the National Labor Relations Act as it relates to terms and conditions of employment. But the NLRB risk of shutting down the sexist gossip must be balanced against the harassment risk of letting it continue.

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

What Attorneys Need to Know about Hiring, Evaluating, and Terminating Employees

I am excited to share my latest podcast interview with The Florida Bar on the important aspects of hiring, evaluating, and terminating employees.

Valentine’s Day and Kindness

I am pleased to share my latest post to The SHRM Blog.

We are approaching Valentine’s Day and the risks that go with it.

Of course, everyone should know that it is inappropriate to send a card with a sexual or suggestive message.  This is particularly problematic where there is a power disparity, but it is not limited to such occasions.

But when you look at Valentine’s Day cards, there are cards to parents, grandparents, children and grandchildren.  I do not believe they have any romantic or sexual message; I need this belief to survive.

So if we are thoughtful and careful with the cards we pick out, or the words we say, what’s wrong with acknowledging the “holiday?”  Is this not just another way to show employees that you care?

Your intent may be pristine, but the impact may be quite to the contrary.

The risk is great in the #MeToo era.  So why take an unnecessary risk?

No matter how careful we are, Valentine’s Day is a holiday that revolves around love and romance.  Even if not stated, the embedded message may be sex.

Rather than wishing our employees love on Valentine’s Day, let’s show them kindness throughout the entire year.  Yes, work gets harder every day, and employees need more kindness to get through it.

By kindness, I mean warm and gentle thoughtfulness with no expectation of a return on investment.  A casual smile.  Picking up coffee for a colleague.  Pulling back when you know someone needs space.  Making yourself available when you sense someone needs to talk.  Asking someone if they are feeling better.  Looking the person in the eyes with attention and not agitation.

We all have heard the expression “random acts of kindness.”  That we need to be reminded to do them randomly speaks to their deficit in the ordinary course.

Being kind to people means more than caring about their concerns or appreciating their contribution.  It means truly recognizing the humanity of a colleague without thinking about how what you do may benefit you.

So let’s not express our love on February 14.  Let’s practice kindness every day.

Don’t Make These Mistakes When Checking for Pay Bias

I am pleased to share my latest post to Bloomberg Law.

n the context of sexual harassment, we all are aware of the hashtag #timesup. Well, the same is true for pay inequity and pay discrimination.

In 2018, a majority of states have considered bills to address pay inequity. A number of these bills passed and we can expect even more activity in 2019. The number of lawsuits alleging pay discrimination has also increased. For example. in 2018 alone, the Boston Symphony Orchestra, Five Guys, Nike, and Spotify were among the many companies sued for pay discrimination.

For legal, business, and fairness reasons, employers need to get ahead of the curve and conduct an analysis to make sure they are paying fairly. But a pay equity analysis is deceptively complex.

Below are eight of the more salient mistakes/misconceptions I have observed when companies do pay equity evaluations and ways to address them.

1. Initial Assessment Not Under Privilege

An analysis to identify potential pay inequity later may be used against your organization to prove bias. So, consider analyzing your pay parity analysis under the attorney-client privilege.

However, even if structured and administered properly, a privileged investigation does not necessarily mean everything is privileged. For example only, the fact and scope of the analysis may not be privileged.

So don’t do an analysis, unless you are prepared to act on it.

2. Not Using an Expert

Many organizations have individuals who are technically qualified to do a multi-regression analysis, the heart of the pay equity analysis. But you want someone with deep expertise to guide you on what is a deceptively-complex process.

For example only, you will want to look at not only total compensation but also each element separately, including variable compensation where inequity may be more likely to exist. The variables to be held constant will differ depending on the element of compensation. Plus, there is the matter of “sequencing.” Not sure of the nuances of sequencing? I rest my case on the value of an expert. Plus, if there is litigation, relying on a strong expert has obvious benefits.

3. Looking Only at Jobs That Are Exactly the Same

Unlike the federal Equal Pay Act, many recently-enacted state pay equity laws do not focus only on pay equity where the jobs are the same. They require comparisons of jobs that are substantially similar, comparable or some other similar standard. This is true, for example, in California, Maryland, Massachusetts, New Jersey, Oregon, and Washington.

But what about jurisdictions where there is no pay equity law that goes beyond looking at pay relative to the “same” job, at least not yet?

To minimize claims (even if you prevail) and to maximize true equity, employers may benefit from looking at some jobs that are substantially similar or comparable, even in jurisdictions where it is not yet required. At a very minimum, consider looking at single incumbent positions, where employees may make the comparisons on their own.

4. Focusing Only on Gender

Federal and state anti-discrimination laws cover pay bias. And, these laws apply to a broad range of protected groups, not just gender. Further, the thee most recently-enacted pay equity laws—New Jersey, Oregon and Washington—apply to all protected groups under the state’s applicable non-discrimination law.

So, don’t focus only on gender. At a very minimum, employers should consider race, national origin, and age, too.

5. Relying on Defenses That Are Not Defenses

The fact that, as a result of the multi-regression analysis, there is a statistically-significant disparity does not mean that there is unlawful bias. It means the employer must evaluate whether there are legitimate, non-discriminatory reasons for the “outliers” (both high and low, not just low).

Some possible “defenses” include performance, seniority, and experience. But employers cannot simply pluck a defense listed in the applicable law.

Employers must ask: was the defense a factor considered, and applied consistently, in the process of determining this aspect of the employees’ compensation?

6. Assuming Good Statistics Means No Bias

It is dangerous to assume that no statistical problems mean there are no pay parity problems. A deeper dive is recommended.

For example only, there may be a perfect correlation between merit and performance evaluations, but that does not mean the performance evaluations are not tainted by conscious or implicit bias. How to address bias in performance evaluations and other factors that may include implicit or conscious bias is also complex.

Employers may be inclined to centralize and institute strong guardrails to limit the discretion that may lead to bias with regard to performance appraisals, discretionary bonuses, etc. But the centralization and guard rails may create the commonality of which class actions are borne. Employers need to walk the razor’s edge to avoid individual bias without creating an easy argument for certification of the class action.

7. Making Unnecessary Admissions in Taking Corrective Action

Let’s assume there are some low outliers that cannot be explained by legitimate reasons and need to be increased. The disparity could have been caused by bias. It also could have been a good faith mistake, a bad manager, etc. The reality is that, in most cases, you really won’t know the cause for sure; you will “know” only there is a problem to be corrected.

So make corrections without admissions that may not be true and invite back pay claims. Focus on the need for a change without speculating as to the cause of the inequity.

8. Documenting Outside of Privilege

If there is a pay equity challenge, you may want to rely on your analysis. If your initial analysis was conducted under privilege and you waive the privilege, how far does the waiver go? A court has discretion to hold that the desired discrete waiver of privilege results in a waiver over the entire subject matter of the analysis.

How do employers mitigate this risk? When the analysis is done under privilege, employers should consider re-running the final analysis and document the final decisions outside of privilege so that the employer can rely on non-privileged information in defending any challenge. This critical step, so important in protecting the privilege, is often missed.

A Jewish Guy Who Wears a Chai Gets Personal

I am pleased to share my latest post to The SHRM Blog.

For many years, around the holiday season, I have written cautionary tales from “The Jewish Guy Who Wear A Chai.”  Chai is the number 18 in Hebrew and means life.

This year, I was reluctant to use the title.  For the first time in a long time, I have been the target of antisemitism.  Then, there was the massacre of 11 Jews at the Tree of Life Synagogue.

Hatred against Jews is not new.  But it is increasing—there is a meteoric spike in hate crimes against Jews across the globe (both before and after the Pittsburgh massacre).

The day after the massacre in Pittsburgh, I decided to avoid the Jewish Guy theme. That was until I went to an interfaith service at my synagogue.

Even with every effort to accommodate those wishing to attend, there was an overflow crowd with people standing close to each other against the walls.  People of all faiths, races and ethnic backgrounds were there.

I heard from Jewish, Catholic, Protestant and Muslim clergy.  Political leaders from both political parties and leaders of various racial and ethnic groups who were not Jewish made sure, along with the choir of clergy, that their Jewish brothers and sisters were not alone.

I was particularly touched by the words of a Lutheran Pastor.  She said, in effect:

  1. When anything bad happens to any of us, it happens to all of us.
  2. When we do anything good for any of us, we do something good for all of us.

I left inspired to write this blog as who I am:  a Jewish guy who proudly wears his Chai.  I will not be cowered.

But, this year, I am not going to talk about holiday decorations or parties, as much as my sarcastic gene cries out. It is time to be more serious.

Regardless of our faith, or lack of faith, we must speak up when there is religious intolerance and that includes in our workplaces.  Here, too, silence is complicity.

But with religion, I have noted the condemnations, even if well intended, often are problematic.  To quote an article by Yair Rosenberg published in the Washington Post: “It is impossible to recognize and fight a prejudice if you universalize it beyond all recognition.”

The attack in Pittsburgh was against Jews.  The attack in Egypt was against Coptic Christians.  We must be specific on the identities of the victims or we erase their identities.

That does not mean we should not universalize afterward.  We must.  After all, an attack on any of us is an attack on all of us.

But we must start with the identity of the victims.  So Islamophobia is not religious intolerance.  It is Islamophobia.

So, as I close, I chose my words carefully.

We have different faiths.  Some have no faith but act in good faith.

But we owe it to our employees—and ourselves—not only to condemn antisemitism and other forms of religious bigotry by their names but also to imbue the holiday season with an inclusive net of kindness.  After all, what we do good for any of us, we do good for all of us.

“Cooperative Dialogues” in New York City In Effect Now!

I am pleased to share my latest post to The SHRM Blog.

Important reminder that, effective today, October 15, 2018, under the New York City Human Rights Law (NYCHRL), employers must engage in a “cooperative dialogue” with applicants or employees in New York City with regard to reasonable accommodations in four (4) circumstances. More specifically, an employer must engage in the “cooperative dialogue” with:

  1. Victims of domestic violence, sex offenses or stalking;
  2. Individuals with pregnancy and related conditions;
  3. Individuals with religious needs; and
  4. Individuals with disabilities.

It is important to remember that, under the NYCHRL, the following are defined very broadly:

  1. The definitions of the 4 circumstances set forth above under which there may be a duty to make reasonable accommodations.
  2. The triggering event for when the duty to engage in the cooperative dialogue may arise in determining whether a reasonable accommodation may exist.
  3. The scope of the cooperative dialogue (in contrast to the interactive dialogue under the ADA).

With regard to the last point, under the NYCHRL, employers must provide to the individual requesting an accommodation a written final determination identifying any accommodation granted or denied. This critical requirement does not exist under federal or any other state or local law (to the best of my knowledge). Note: even where there is no such legal requirement, documenting the analysis is generally recommended.

The City of New York has provided guidance on the cooperative dialogue with regard to disabilities: https://www1.nyc.gov/assets/cchr/downloads/pdf/NYCCHR_LegalGuide-DisabilityFinal.pdf.

Guidance on the cooperative dialogue begins on page 51. The Guidance will be of some value for cooperative dialogues other than with regard to disabilities in terms of the process that New York City generally is looking for employers to follow.

Starting on page 112 are sample forms for the cooperative dialogue with regard to disabilities. These forms are a good starting point for employers, but should be reviewed by counsel for potential changes appropriate in light of other laws and/or the employer’s policies.

As always, this blog should not be construed as legal advice or as pertaining to specific factual situations.  

2018 DOL Opinion Letter Under the FMLA

I am pleased to provide my latest post to The SHRM Blog. 

Many employers have no-fault attendance control policies.  Stated generally:

  1. An employee’s employment terminates if he or she has a certain number of occurrences in a specified period of time.
  2. An occurrence “falls off,” and therefore is not considered, after a specified period of time, for example 12 months after the occurrence.

The law is clear that employers cannot consider time off under the FMLA as an occurrence under its no-fault attendance control policy.  But does the time that the employee is on FMLA leave count toward the period of time after which a point “falls off?”

The Department of Labor issued in August its first opinion letters under the FMLA in more than 9 years, and one (1) of the two (2) addresses this precise issue.  The opinion letter can be found at: https://www.dol.gov/whd/opinion/FMLA/2018/2018_08_28_1A_FMLA.pdf

The Department of Labor concluded that the period of time in which an employee is on FMLA does not need to be considered as part of the time necessary for an occurrence to fall off, provided that the employer applies this rule on a non-discriminatory policy basis.  For example, if the time an employee is on paid parental leave beyond the FMLA counts toward the period of time after which a point falls off, then not counting the time off covered by the FMLA would be discriminatory.

It is important that employers focus on this issue.  It is also important to note that a court might not agree with the DOL opinion letter.  As important, agencies or courts interpreting the ADA could come out with a different result under the ADA.

Further, the answer may be different with state and local leave laws.  We know that many state and local leave laws provide employees with greater protection than federal law.

So, while I am sure I am not alone in being grateful that the DOL has started to issue opinion letters again not only under the FLSA but also under the FMLA, employers need to be careful not to reach certain conclusions too quickly based on them.

This blog should not be construed as legal advice or as pertaining to specific factual situations.

 

Top 20 Mistakes in Harassment Prevention Programs

Every week it seems, there are allegations being brought against high-profile men who have engaged in one form or another of sexual misconduct. Just this weekend, we heard of the resigning of Les Moonves, head of CBS, due to sexual misconduct allegations. As we know, Mr. Moonves adds to the list of many who have been accused of serious sexual misconduct since the Harvey Weinsten story broke in October 2017.

In the year since the Harvey Weistein allegations and the #MeToo movement began, employers have been trying to prevent harm to their employees while minimizing their legal exposure.

On October 5th, during a one-hour webinar, Jonathan Segal aims to address the 20 most common mistakes employers make in their harassment prevention programs. Join him, as he highlights ways to avoid the most common mistakes employers make while trying to do the right thing regarding harassment prevention. #MeToo is here to stay and harassment prevention laws are only becoming stricter for workplaces. Ensure your organization is avoiding risks and doing the right thing by attending, what is sure to be, a highly engaging and enlightening webinar.

Click here for more information and to register. 

Harassment Prevention Webinar

 

A Very De Minimis De Minimis FLSA Exemption

I am pleased to share my latest post to The SHRM Blog.

As a general rule, employers must pay non-exempt employees for all time that they work (broadly defined) and that includes getting ready for work (preliminary activities) and finishing work (postliminary activities).  As discussed below, there is a de minimis exemption under federal law (FLSA).

In a recent case involving Starbucks, the California Supreme Court held the de minimis exemption was not available under California state law under the facts of the case.  If and when the de minimis exemption may be available under California state law will be decided in future litigation.

Some of the legal summaries of the Starbucks case suggest that the federal de minimis exemption is broader than it is. It is very narrow.

The following statement comes from the website of the United States Department of Labor:

Insignificant Periods of Time

In recording working time under the FLSA, infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, may be disregarded.  The courts have held that such periods of time are de minimis (insignificant).  This rule applies only where there are uncertain and indefinite periods of time involved, a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities.  As noted below, an employer may not arbitrarily fail to count any part, however small, of working time that can be practically ascertained….

https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenee29.asp

Notice some key concepts from the DOL’s enforcement position: (a) short (few seconds or minutes); (b) uncertain (cannot be regular occurrence;) (c) indefinite (which generally means not predictable amount of time each occurrence) and (d) cannot be precisely recorded (vague enough?)

Employers should draft their policies, train their managers, and review their practices to minimize the possibility that there will be any work for which an employee is not paid.  Think of the de minimis exemption only as last resort for litigation.

Employers need to consider work not only at beginning and end of the day but also any work that may be done during an unpaid meal period.  Another issue that needs to be considered is any work that may be done remotely, such as by telephone or e-mail.

The possible case scenarios go beyond this blog but employers need to think them through in drafting compliant policies, training managers and reviewing actual practices. Failure to do so may result in off the clock cases with off the clock judgments.

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

Time Crunched? A Three-Part Series on Strategies for Boosting Your Productivity as an HR Professional

Conference Image

Part 3: Amplifying Your Attendance at Professional Conferences

In our Time Crunched? series, we’ve offered tips for mastering the art of time management in the HR realm. In Part 1, we looked at how to take advantage of the most productive times of your workday to get more done. In Part 2, we explored how to make employee trainings more efficient and effective. In this Part 3, we’ll focus on getting the most value out of conferences.

Here are five strategies to help you transform from a passive audience member into an active curator of your next conference experience.

1. Plan ahead for what you hope to accomplish.

It’s foolish to take time out of your busy schedule for a conference without considering the point of attending. Before you register, think through the goals you want to achieve. Ask yourself: what projects are in my pipeline? Does my organization have vendor contracts coming up for renewal? Does my organization have a technology gap?

Peruse the lineup of talks, workshops and other events planned for the conference. Go ahead and register if you find enough programming on the agenda for you to put together an itinerary for yourself that will help you achieve your goals.

For example, if you’re looking to revamp your recruitment processes, you may plan to attend a conference seminar on pay equity so you can learn about the patchwork of laws that regulate whether and when you may ask candidates about their salary histories. Before the conference, write down the questions you plan to ask the speaker so that you can be prepared to participate in the session and apply what you learn when you return.

If you aim to expand your network in your industry, don’t rely on chance encounters at the conference. Before you go, tell your colleagues, use social media, and post on message boards of industry groups to share your interest in meeting other industry players at the conference. These early efforts can lead you to find others with the same interest whom you could meet up with at the conference.

2. Be fully engaged when you’re there.

If you constantly check your emails or step out to make calls at the conference, then you’re bound to miss the opportunities for learning and connecting that motivated you to attend.

As you’re waiting for a session to start, don’t be glued to your inbox. Take that time to introduce yourself to those sitting near you. Think about what questions you plan to ask the speaker. Use the conference hashtag to post on social media about the talks you’re attending, which is an easy way to learn who else is there and arrange real-life meetups.

Take good notes during the sessions you attend, preferably on a copy of the presentation materials given to attendees. Jot down what the speaker said beyond what is printed on the slides as well as the ideas the presentation sparked for your own work.

When the speaker stops talking, don’t rush out of the room. Stay for and contribute to the Q&A session, which often produces key insights into the subject matter. Talk with other attendees about the presentation, such as what led them to register for the talk and what they plan to use from it in their workplaces.

3. Leave time for spontaneous interaction.

When creating your itinerary, leave blocks of free time in your schedule to interact with others. After all, how often are you surrounded by thought leaders, professionals in peer organizations, vendors, and perhaps representatives of government agencies that regulate your field?

Use the refreshments area, book table or other common space at the conference to strike up conversation. A chat while pouring a cup of coffee could lead to a candid discussion about how another company is reacting to new regulations, insight into the priorities of a government agency, recommendations for vendors to use or avoid, or the name of a candidate for a key opening in your organization.

4. Share what you learned.

Soon after returning, set aside time to digest what you learned while it’s fresh in your mind. Write a summary of the key takeaways from each program you attended, using your notes as a reference point. Record the names, contact information, and what you talked about with each of the people you met at the conference.

If you’re the only one from your organization who attended, it’s important to share what you learned with colleagues. Rather than just emailing around a copy of the slide decks, give a brief presentation about the conference so that you and your colleagues have the opportunity for an interactive exchange. Circulate copies of your marked-up presentation materials, offer ideas for how to apply the takeaways to your organization, and solicit input from your colleagues.

5. Turn your takeaways into action items.

You may return from a conference with grand plans for implementing what you learned, but the frenetic pace of work can make it difficult to keep those plans on the front burner. To keep yourself accountable to those goals, write down your plans, share them with your team, set deadlines for the various steps, and create reminders on your electronic calendar for those dates.

Also, follow up on the connections you made at the conference. Be intentional about keeping the relationship going beyond that initial post-conference LinkedIn connection. Consider sharing articles relevant to their industry, inviting them to meet up at another conference or exchanging war stories at lunch.

In the weeks and months after the conference, think critically about what you gained from attending. Did the conference make you more effective as an HR professional? Has your organization benefited from the knowledge you gained or connections you made at the conference? If not, then consider exploring a different conference next time.

We hope these tips amplify your conference experience so that you and your organization can realize more value from your attendance.

For more guidance on navigating the world of HR, check out our upcoming DMi course offerings: https://duanemorrisinstitute.com/courses

Time Crunched? A Three-Part Series on Strategies for Boosting Your Productivity as an HR Professional

Part 2: Employee Trainings: Time for HR to Shine 

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In Part 1 of our series, we explored strategies for making your workday more productive. In this segment, we’ll delve into employee trainings, a key responsibility in the HR repertoire.

We know that trainings serve to communicate important information. Yet, trainings also shine a spotlight on HR itself. In the #MeToo era, some have cast a harsh glare on HR, accusing HR of paying lip service to employee concerns while actually functioning to protect management. In the wake of the #MeToo movement, trainings present HR with a critical opportunity not just to teach, but also to listen to employees and send a message about the values of your organization.

Here are five tips for making your training sessions more effective and engaging.

1. Go live. Whenever possible, present your trainings in person or streaming on video. Indeed, the EEOC, in its Promising Practices for Preventing Harassment, champions live, interactive training as a prime tool for preventing workplace harassment. When employees can ask questions in real time, they are more likely to engage with the material and apply it in their worklives. The chance to hear the questions of colleagues may also highlight aspects of the material that employees may miss by simply reading a set of slides in their offices. To encourage employees to participate, consider substituting, “Any questions?”—which tends to prompt a moment of silence—with, “What topic would you like to hear more about?” Going live also allows you to keep the content fresh by incorporating up-to-the minute legal and business developments into your presentation.

2. Be ready for primetime. Studies show that people tend to be most alert and engaged during mornings and on days early in the workweek. This insight suggests that you’re more likely to get the attention of your audience by giving your training on a Tuesday morning rather than on a Thursday afternoon. For employees who don’t work the traditional 9-to-5, it makes sense to schedule the training early in their shifts to take advantage of their more alert times.

3. Stick to your timeslot. You’ll convey respect for employees’ schedules (and save yourself time) by starting and finishing your presentation on schedule. Breaking down your material into segments can help you stay on pace and adapt to your audience. Make a short and long version of each segment. The short version will cover your essential takeaways and leave time for questions. In the long version, you can either present more examples to flesh out your key points or use the time to take more questions. As you move through your material, you can choose whether to present the long or short version of each segment in order to keep to your scheduled end time.

4. Know your audience. No one likes hearing a generic presentation. Instead of using a slide deck from the Internet, tailor your material to the culture and workforce of your organization, as the EEOC recommends. To show the range of conduct that your EEO policy prohibits, offer specific scenarios that illustrate potential discrimination, harassment, retaliation, or failure to accommodate. Similarly, in training employees about protecting confidential information, raise hypotheticals that highlight the categories of confidential information and practices for safeguarding that information that your policy describes. Also consider whether the material lends itself to separate sessions for non-managers and managers in light of the particular responsibilities of management. Likewise, if your workforce is spread across several states or localities, you’ll want to cover local issues in your presentation or consider hosting separate sessions for employees in each region.

5. Solicit questions and reviews. After the training, it’s important to give employees an opportunity to ask questions that may have come to mind only after they left the session or that they may not have felt comfortable asking in a group setting. Keep the conversation going by reaching out to attendees for this purpose and to seek their feedback about the training. Ask them what they found useful and what could be improved, both in terms of style and substance. Ask them what topics they would like to see in a future session. Through this feedback, you will likely gain valuable insight into what employees took away from the presentation to inform your future sessions. You may also learn about real-life issues brewing in the workplace, giving you an opportunity to respond before they reach a boiling point.

By putting these tips into action, trainings can be more than just a way to convey information. By making HR more visible, trainings can foster a work environment where employees know about the resources that HR offers and feel comfortable using them.

 For more guidance on employee trainings, such as updates in the law to cover or how to address state-specific issues, feel free to reach out to our ELBI practice group.

 Stay tuned for the third and final installment of our Time Crunched? series, where we’ll look at how to make the most of your time at professional conferences.

 

 

 

Time Crunched? A Three-Part Series on Strategies for Boosting Your Productivity as an HR Professional

Is your superpower wish the ability to stop time? Do you spend your days putting out fires, never getting to those projects that linger at the end of your to-do list? In this three-part series, we’ll offer tips to help you squeeze more out of your minutes as a busy HR professional.

 Part 1: All in a Day’s Work

In this first installment, we’ll look at four strategies for getting more productivity—and enjoyment—out of your workdays.

1. Study how you spend your time.

Keep a written time log of every hour of your workday for two weeks. Record all of your time spent in calls, meetings, emails, travel, breaks and anything else.

After making your log, see if you can spot patterns.  When did you feel most productive? When did you get interrupted? Which tasks did you accomplish? Which tasks were left undone? This analysis is your roadmap for how to improve your time management.

2. Carve out your most productive times.

Armed with the insights from your time log, you can take steps to carve out your most productive times for the work that demands your deepest thinking.

Hypothetically, you may realize that 9 a.m.-10 a.m. is when you feel most focused (coffee may have something to do with it). Yet, your log shows that you tend to spend that time reading/answering emails, many of which are not urgent. You observe a lull in your schedule from 12 p.m.-1 p.m. and see that you get lunch then. You notice that you tend to feel most drained between 1 p.m. and 2 p.m., yet that is when you often tackle your most complex projects.

In this hypothetical, you can make real gains in your productivity by setting aside 9 a.m.-10 a.m. for your most complex projects, turning to non-urgent emails during the 12 p.m.-1 p.m. lull, and having lunch at 1 p.m., when you feel most drained.

Inevitably, there will be times when unexpected tasks pop up and require you to rework your plans. Yet, by organizing your days to take advantage of your most focused times as often as you can, you can do more with your minutes.

3. Set aside time for planning.

Invest time each week just to organize your to-do list.
Consider dividing your tasks into high-, medium-, and lower-priority items. This can help allocate your attention to the work that needs it most, rather than to the projects that landed on your list first, but may not be as important. To do this, you’ll need a clear understanding with your colleagues, clients or others as to what a task requires and when it needs to get done. If that’s not clear, be sure to ask.

Check your to-do list at the start and end of each workday. Look ahead to the open time slots on your calendar and set appointments for yourself to work on your remaining tasks, keeping in mind the insights you gained from your time log.

Set aside time each week to think about how you will accomplish your lower-priority tasks—the items that tend to linger on your to-do list. Where a project is taking longer than you anticipated, consider getting a colleague’s perspective. Sometimes another point of view can help to pinpoint resources for getting a project done faster.

4. Make time for fun.

With seemingly endless demands on your plate, it may seem foolish, let alone unrealistic, to schedule more activity into your workweek. Yet, by pursuing what gives you enjoyment outside of work, you can stretch your brain in ways that can benefit your work. This can mean taking time to read that new bestseller, play your favorite sport, check out an exhibit, or do whatever else that gets your creative juices flowing.

Look back at your time log and see where you had space in your schedule for these activities if only you had planned to do them in advance. Then, try scheduling a few of these activities into your week and commit to them just as you would a meeting or conference call. Chances are, by making time for fun, you will approach your work with renewed energy and fresh ideas.

By taking a closer look at how you spend your workdays, you can spot areas where small changes can lead to big gains in your productivity, even without the power to stop time.

Stay tuned for Part 2 of our series, where we’ll explore how to make employee trainings more efficient while also maximizing employee engagement.

Focus: Workplace Dress and Appearance Issues

It’s summer time! Which means vacations, sunsets, thunderstorms, and more often than not, circulating those workplace policies on appropriate workplace dress. Yes, summer is that time of year where issues such as low cut shirts, visible body art, skirt length, hair color, and shoe wear (just to name a few) often become more prevalent and pose issues in the workplace.

But, companies face difficulties as the line between self-expression and workplace-appropriate is increasingly blurred, especially with increased diversity efforts.

How can companies both respect employees’ self-expression and, at the same time, present a cohesive and professional appearance?

On July 24, join Marc Scheiner as he discusses factors to consider when creating and enforcing employee dress codes and appearance standards, while also addressing the real and growing concerns that companies face from employees raising gender, religious, race and other potential discrimination claims.

Click here for more information and to register. 

Dress Code Cartoon

Suicide and the Workplace

Mental health matters. Here is my post to The SHRM Blog on importance of addressing suicide and mental health in the workplace.

In the last month, two celebrities took their lives, Kate Spade and Anthony Bourdain.  To be more specific, they committed suicide.

It is important to say the word “suicide” because many media reports, at least initially, did not.  There is still, for some, discomfort with mental health issues in general and suicide in particular.

As with #metoo, high-profile cases draw our attention to an issue that is not limited to the high-profile.   Alarmingly, the suicide rate has increased by 25 percent since 1999.

But what does this have to do with employers?  Do employers have any legal duty to prevent suicide?

For the most part, the answer is generally “no.”  But that does not mean employers should not focus on the issue.

The law sets a minimum.  Responsible employers who genuinely care about their employees go further.

What can you do as an employer? What should HR do?

  1. Educate yourself and your leaders on suicide.  Severe depression, often coupled with substance abuse, is one of the primary causes of suicide.  Do not expect employees to just “deal with it.”  Substitute “cancer” for “depression” and you will see how cold and/or ignorant someone may sound if they suggest mental illness is weakness.
  2. Offer your employees access to professional help by way of an employee assistance program (an “EAP”).  As we all know, an EAP is a very inexpensive way to offer employees anonymous support for myriad issues from substance abuse to marital problems to suicidal ideation. If you don’t have an EAP, make the business case to get one.
  3. Share with your employees information about the national suicide prevention hotline.  I will do that just now: 1-800-273-Talk (8255). Why would you not?
  4. Emphasize when you discuss your health benefits both physical and mental health.  It does not hurt to message explicitly that there is no stigma in getting mental health support—no more than getting dialysis.
  5. Consult with a professional if an employee is talking about suicide, directly or indirectly, or if you have objective reason to be concerned about an employee (e.g., talking about helplessness). Obtain guidance on how to speak with the employee.  Yes, there may be some risk under the ADA in removing the employee from the workplace and requiring an assessment (‘perceived disability’ claim).  But that risk must be balanced against the human risk (among others) if your fear contributes to the employee’s decision to end it all.  Further, with careful planning, while the ADA risk cannot be eliminated, it can be minimized materially.
  6. Respond to disparaging, demeaning or hurtful comments about mental disabilities.  Such comments may increase the unwarranted shame and the risk of suicide.  Indeed, address as part of your efforts to educate your workforce on unacceptable behavior of a harassing nature.
  7. Revisit your wellness program.  Is there enough focus on mental health?  Do not assume the answer is yes. We need to add light to the issue so that people do not hide for fear of societal judgment and the life-threatening risks that go with it.
  8. Focus on respect in your leadership training. Being abusive may not be illegal but it is bad behavior that may take its victim to an even darker place.  Bullies are weak but they inflict penetrating pain.
  9. Get help yourself if you have had thoughts about suicide.  It is not weakness.  I cannot think of any greater act of strength.

An Epic SCOTUS Decision on Class Action Waivers

I am pleased to share my latest article, written for Philadelphia Business Journal, on a recent ruling of the U.S. Supreme Court.

By a 5-4 vote authored by Justice Neil Gorsuch, the U.S. Supreme Court held in Epic Systems Corp. v Lewis that the National Labor Relations Act does not prohibit employers from using arbitration clauses in employment contracts to prevent workers from filing class actions over workplace issues.

Some describe this as a big win for employers. I think it can be described more accurately as an opinion that creates a decision point for employers.

As a purely legal matter, some employers may prefer one class claim before a judge than the specter of a large number of individual claims before an arbitrator.

As an employee and public relations matter, some employers may elect to exclude sexual harassment claims from any ban on class claims for the same reason that some employers are voluntarily taking the position that their mandatory arbitration agreements do not apply to any sexual harassment claims.

As a public policy matter, the decision likely will rejuvenate support for the Senate Bill entitled Ending Forced Arbitration of Sexual Harassment Claims, which has bi-partisan sponsorship.

The bill goes further than its title suggests, preluding mandatory arbitration of any claim of sex discrimination that could be brought under Title VII, such as pay equity claims, even if Title VII is not mentioned.

It should be noted that a bill that restricts mandatory arbitration, if applied only to sexual harassment, may not be as partisan as most of what we see in Washington.

In February, all 50 state attorney generals, Democrats and Republicans alike, signed a letter to Congress demanding that the law be changed to preclude mandatory arbitration of sexual harassment claims.

This would not be first time a Supreme Court decision spurred legislative action. Remember Lilly Ledbetter‘s loss before the high court only to have congress enact a law with her name?

Stay tuned—this story is far from done!

Why Holocaust Remembrance Day Matters: 2018

I am pleased to share my latest post to The SHRM Blog on the importance of Holocaust Remembrance Day.

The United States Congress created the Days of Remembrance as our nation’s annual commemoration of the Holocaust.  This year, Holocaust Remembrance Day (Yom HaShoah) is today, Thursday April 12, 2018.

During the Holocaust, more than 11 million human beings were systemically murdered.  That includes 6 million Jews, 2/3 of the European Jewish community at that time.  That percentage still boggles my mind.  In my family, the percentage was much higher.

But the numbers would have been even worse were it not for the countless “righteous gentiles.”  The term “righteous gentiles” is used to refer to those who are not Jewish and who risked their lives to save Jews during the Holocaust.  They are specifically honored in Israel and throughout the world.

Today, I share with you a link to some of their stories. Please read about these heroes. Their stores are beyond inspiring.

On a personal note, I thank the Polish Church that hid my great aunt at their peril. Her daughter later adopted children from that same Church. .

And, of course, there were the millions of American and other service men and women who lost their lives in fighting Hitler’s machine.  They, too, cannot be forgotten.

I share this link to one story of their bravery.  You can find so many more by  using Google.

Unfortunately, this year Yom HaShoah feels more significant than ever, at least to me. Anti-Semitic acts and attitudes are, according to numerous reports, at post-Holocaust highs worldwide.

So what does this have to do with Human Resources?  Of course, one connection to Holocaust Remembrance Day is the “human” in human resources.  But it is more than just that.

This is not a day or week in which we celebrate the achievement or contribution of any group or people.  In remembering the Shoah in our workplaces, we are reminded of how important it is that we brook no hate. It is also a time to recognize those employees whose lives were affected and shaped by this horrific period in history.

One way to do so is simply to post on your Intranet a remembrance statement.  You can find words and images all over the Internet. You still have time to do something today.

This is also a great topic for a diversity and inclusion program . The diversity in experience but the universal message that includes all:  we cannot tolerate intolerance against any faith, race, ethnicity, etc.

Include in your anti-harassment training examples of Anti-Semetic comments or actions. Of course, this must be in the context of religion harassment more broadly.

And, of course, every day, we must do our best to make sure that hate has no place in our workplaces.  A strong policy is not enough. When it comes to hate-based harassment, if you are in human resources or other leader, there is no such thing as a “passive bystander.” To ignore is to be complicit.

As Jews, we often say “Never Again.”  And, when we say that, we mean to anyone–at any time–anywhere.

Shalom (Peace) to all.

EEOC May Get Cozier with Conciliation Under Gustafson

I appreciate contributing to the below article posted to Bloomberg Law  written by Jacquie Lee and Jay-Anne B. Casuga.

Sharon Fast Gustafson, the general counsel nominee for the EEOC, hopes to focus more energy on mediation than litigation, which she described as “necessary” but also an “expensive, imperfect tool.”

“Resolution of disputes without litigation is an important part of the lawyer’s job, just as it is an important part of the EEOC’s function,” she said before the Senate Health, Education, Labor and Pensions Committee April 10. As general counsel of the Equal Employment Opportunity Commission, Gustafson would manage the agency’s litigation program.

Gustafson’s emphasis on conciliatory measures mirrors sentiments expressed by Janet Dhillon, the nominee to chair the EEOC. That could signal that the agency might become less aggressive in filing lawsuits against employers and more prone to mediation and conciliation. Dhillon, who also awaits Senate confirmation, said “litigation truly is a last resort” in testimony before the same committee Sept. 19.

A Bloomberg Law analysis of Gustafson’s track record appears to support her stance on avoiding potentially lengthy litigation. Since becoming a solo practitioner in 1995, Gustafson has negotiated settlements or voluntary joint dismissals in more than 80 percent of the employment discrimination cases in which she represented workers in federal court.

The high number of Gustafson’s settlements doesn’t surprise Jonathan Segal, a partner at Duane Morris LLP in Philadelphia. The vast majority of cases don’t make it to court, he said. Her settlement rate is what he’d expect from a litigator, he said. It shows she’s “pragmatic and she resolves cases where she can.”

Gustafson’s Litigation Stats

Gustafson has been viewed as a somewhat unusual choice by President Donald Trump to be the EEOC’s top litigator. Republican administrations typically choose agency general counsels with more management-side experience, while Democrats usually appoint attorneys with a background representing workers.

Gusfason represented workers in nearly all of the federal labor and employment cases—42 out of 43—in which she appeared as an attorney.

Of those cases, 19 involved workplace discrimination claims brought by employees against companies, including United Parcel Service, Marriott International, and the District of Columbia. She represented an employer in one federal discrimination case. The claims in those cases are based on many of the same laws that the EEOC enforces. Gustafson also has represented workers in federal wage and hour litigation under the Fair Labor Standards Act, as well as in employee benefits lawsuits under the Employee Retirement Income Security Act.

Gustafon’s clients agreed to dismiss their claims after reaching settlement in 16 of the 20 discrimination cases. One of the cases settled at the appeals court level following the employee’s jury trial win. Another case settled after the worker scored a victory before the U.S. Supreme Court.

Fewer Class Actions?

Employees nationwide filed more than 84,000 discrimination charges with the Equal Employment Opportunity Commission in the 2017 fiscal year. The agency filed 201 lawsuits, 30 of which were systemic cases. It has averaged a “favorable outcome” in more than 90 percent of its suits since fiscal year 2010, according to agency annual reports. The commission, however, doesn’t specify how many of those outcomes are court decisions or settlements.

The agency has made it a priority in the past few years to root out systemic discrimination, which involves a broad pattern of bias within a certain industry or company.

Gustafson emphasized the importance of individual discrimination lawsuits in her Senate HELP Committee hearing April 10.

“One of the best ways to attack discrimination and to get higher compliance is to keep going against those small individual claims and never let up,” Gustafson said. “I feel strongly that the EEOC should be doing both.”

Most of the agency’s lawsuits are on behalf of individuals. Of the 182 discrimination lawsuits the agency filed in fiscal year 2017, 124 were on behalf of individuals. The proportion of such lawsuits might rise under Gustafson’s leadership, given her statement and considering her federal track record shows no discrimination class actions, at least after 2005.

Consequently, some expect Gustafson might be inclined to address systemic discrimination through individual cases rather than class actions, Segal told Bloomberg Law.

A discrimination case against UPS, in which Gustafson represented a pregnant employee, is a good example, Segal said. That pregnancy accommodation case made its way to the Supreme Court, where a majority of justices in 2015 sided with the worker.

“It was an individual claim, but it had class implications,” Segal said. “It doesn’t mean she won’t look at systemic issues, she just may not bring them by class.”

That might be a winning strategy if the agency wants to combat sexual harassment in the courtroom, an issue the EEOC has been tackling for years but has put renewed emphasis on since the #MeToo movement began.

The nature of sexual harassment cases makes them difficult to litigate as a class because the circumstances can vary greatly between victims, Carolyn Wheeler, a former assistant general counsel for the agency, told Bloomberg Law.

“It’s not that it can’t be done, but you need to do a really exhaustive investigation before you file a case like that,” Wheeler said. That sucks up EEOC resources and time, both of which are already stretched thin at the agency.

Take the large number of women who sued Carrols Corp., a Burger King franchisee, because they allegedly faced sexual harassment and retaliation from managers, she said. The company eventually settled with the 89 women for $2.5 million, but a judge said the EEOC couldn’t pursue a class claim for that case because the agency failed to show a “pattern or practice” of sexual harassment.

“That’s how courts have looked at a lot of these cases,” Wheeler said. “Agree with that or not that’s the state of the law.”

#MeToo: Marrying Compliance with Culture

I am pleased to share my latest post to The SHRM Blog.

No one can credibly deny that sexual harassment is a persistent and pervasive problem. It infects all industries; none is immune.

While this blog focuses on sexual harassment, we must create cultures that do not tolerate any kind of harassing behavior, such as harassment based on race, ethnicity, age or disability. Harassment of any kind is the enemy of inclusion.

As employers, we must protect from harassing conduct not only our applicants and employees but also others who work with them. At the same time, we must ensure that there is due process for those who are accused of causing harm; after all, not every complaint is necessarily true.

In all cases, however: every complaint must be taken seriously; every complainant must be treated with respect and dignity; and every investigation must be conducted promptly, thoroughly and impartially. The process by which we investigate harassment claims plays a key role in determining whether employees–as complainants, witnesses or accused–trust the process.

If a company concludes that someone has engaged in sexual assault, unlawful harassment or harassing behavior, even if the harassing behavior is not “bad enough” to be unlawful, an employer must take prompt and proportionate corrective action. Sometimes, but not always, that means termination.

Of course, no matter how strong our commitment to avoiding harassment may be and appropriate corrective action where unacceptable conduct has occurred, our commitment will not be realized, unless there is a culture that does not brook retaliation by anyone of any kind. If people are afraid of retribution, they won’t speak up, the process will fail and individuals will suffer in silence.

To ensure there is neither harassing nor retaliatory behavior, employers must focus on compliance. This includes, by way of example only, a strong anti-harassment policy with a robust complaint procedure and strong assurances against retaliation.

We also must train our leaders not only to avoid bad behavior but also to call it out “in the moment” if they see or hear it. To be silent is to be complicit, and the cultural message resounds loudly.

Our compliance efforts should reflect and reinforce a culture where respect is expected and harassing and other bad behaviors are shunned, indeed condemned. In a strong culture, you don’t get along by going along with harassing conduct. You get along by treating colleagues respectfully.

This is not to suggest compliance is irrelevant and culture is everything. The key is to marry culture and compliance.

Your compliance efforts should improve your culture and your culture must inform your compliance. Bottom line: our compliance efforts must become part of our cultural DNA

Hey, Employer – Do You Really Own Your Employee’s Invention? New Jersey Law Creates New Protections for Employee Inventions

New Jersey employers who rely on employment contracts to dictate ownership rights to employee inventions may want to revisit their agreements in light of new legislation.

New Jersey recently adopted legislation that provides new protections for employee inventions created outside the scope of his/her employment. Although the bill, Bill A-492, was originally introduced to the Assembly Labor Committee in January 2016, it was signed into law recently on January 16, 2018.

The law aims to protect employees’ patent rights and prohibits employment contracts that require the assignment of any employee invention developed entirely on the employee’s own time and without using the employer’s resources. Advocates for the law expressed there was a need for such regulation as there were few measures in place that would prevent employers from assigning themselves rights to all employee inventions – even if the invention was entirely unrelated to the employer’s business. 

An employer does not automatically have exclusive ownership of any and all intellectual property created by an employee during the course of employment. For this reason, written agreements which specifically assign to the company all intellectual property created by the employee during the course of his or her employment are common. These clauses are essential to certain employment contracts because absent such an agreement, the employee may have ownership rights in the intellectual property created while working for the company, even if the invention is related to the employer’s business. 

While the new law does provide more protective measures for employees, it also specifically states this protection does not apply to inventions that: (a) relate to the employer’s business or actual or demonstrably anticipated research or development; or (b) result from any work performed by the employee on behalf of the employer.

According to the new law, if an employee, outside the context of an employment contract, voluntarily offers the rights to the invention to the employer, the employer must accept or reject the opportunity within nine months from the initial date of the employee’s offer.  After this period, the employer will be barred from any further opportunity to acquire the rights.

The law goes into effect April 1, 2018 and will apply to employment contracts entered into on or after the effective date.  Thus, to the extent any provision in an employment contract applies, the provision will be deemed against public policy and unenforceable.  As such, employers should be sure to revise any provisions in their employment contracts that conflict with the new law.  Additionally, employers should carefully analyze the circumstances in which an employee develops his/her invention if they want to pursue a claim of ownership. If employers are concerned about distinguishing between inventions developed independently versus during the course of employment, they could occasionally have employees identify, in writing, any intellectual property in which they believe they own and verify whether such intellectual property was created independent of the company’s resources and the employees’ duties.

Max's Mistakes
Max’s Mistakes

This blog post is not intended to serve as legal advice. 

4 Red Flags That Administrative Work is Sucking the Life From Your Team

I am pleased to share my latest article posted to Entrepreneur.

Entrepreneurs live to create, develop and refine products and services. They love using creativity to make a difference. The smart ones know they need the support of those who are comfortable with administrative stuff. Somebody has to make the trains run on time!

Administrative work needs to be valued but, over and over, I hear entrepreneurs complain they spend too much on administrative work of questionable value. “Administration” can become a behemoth that crushes creativity and steals time. Here are four red flags that administration may be interfering with your mission.

1. To get an answer you have to talk with many people.

If you regularly need to speak with five people to get one answer, you have a problem. Time is not only money but also energy. When no one knows the whole picture, then those with power will have more power but at the expense of profitability and the sanity of the employees.

2. Regularly hearing “not my job.”

Most employees sincerely want to do a good job. More often than not, employees welcome the opportunity to expand their skill. Of course, there is the occasional employee who will say “not my job.” But, what if that is something you routinely hear from different people in different words or ways?

The pattern may speak volumes. As insane as it sounds, the employees may have been instructed not to help. Use your people skills to ask directly and respectfully why the resistance. Listen not only to what is said but also what is not said. You may find the employee is uncomfortable with not helping as you are in getting the help you need. But, the employee is simply following orders.

3. Rigid rules instead of value-based rules.

We need values-based rules, such as not tolerating harassing conduct, and to enforce such values-based rules aggressively. This is different from rigid rules relating to operations that have no relationship to values or the evolving nature of business.

Every organization must have structure. But, some rules are implemented just to give those who enforce them power. In other cases, a rule may have made sense at a given time but no longer does. Ask why the rule exists. Sometimes people don’t even know why they have rules other than, “We always have done it this way.”

Other times the rules assume the worst of all employees. Guess what: that’s what they bring out, too.

4. Redundant paperwork.

A friend of mine refers to the term as “administrivia.” The more forms, the better. To increase the torture, administration insists on multiple signatures. Worse yet, only certain people can fill out those forms. A salesperson I met took a job for less pay because she was tired of filling out forms rather than taking care of customers.

If you are considering applying for a job with the government to escape the behemoth bureaucracy that hides under the label of administration, you have a problem.

What do you do? Stop complaining about administration if you feel your administrative function is out of control. Make sure those in leadership know where administration provides support or where it creates unnecessary obstacles.

If you provide factual concrete examples to leadership where administration provides unnecessary obstacles, you should get relief. If not, you may need to look to another employer to provide it.

 

Bystander Interventions Without Paternalism or Re-victimization

I am pleased to share my latest post to The SHRM Blog.

Responsible employers, among other steps, train managers on their “bystander” obligations. It is not enough to refrain from bad behavior. As a bystander with power, if you see or hear harassing behavior, you must respond to it. But how?

Let’s take a “hypothetical.” A business meeting takes place among executives.  There are four men and one woman.  During the meeting, the group realizes they are not going to meet Wall Street’s expectations. One of the men snaps “oh F…”

After he said it, the F bomber looks to the one woman at the table and says, “I’m sorry.” Another man at the table digs the hole deeper by adding:   “He did not mean to offend you.” [How did he know that?]

By focusing on the one woman at the table, both male executives not only drew attention to her (re-victimization) but also suggested that she was a fragile creature who needed to be rescued and protected from their vulgar mouths (paternalism).

In this hypothetical, the woman was not offended by the expletive when it was used in response to bad economic news.  But she certainly did not like the attention being placed on her.  Having finished reading Jane Austin, she was not going to fall off her Victorian chair because of a curse word.

In this case, if anything were to be said, it should have been: “let’s keep it professional” but without focusing on the woman.

Change the facts: what if what was said was a “joke” that demeaned women? Should not someone apologize to her now?

NO!  Again, that only makes her the focus.  In other words, it makes it worse.  Plus, it suggests, were she not there, the demeaning comment would have been okay.

The focus should be on the person who made the comment.  Looking at the person who said it, someone with power (including HR) should say: “That is offensive to me. We will talk later.”

Respond “in the moment” so that others do not assume your silence is complicity. Then, take appropriate corrective action more confidentially.

Preventing harassment is more than preventing liability; it is about preventing harm. We need to train on “in the moment:” responses to bad behavior, or we may create harm in the process of trying to correct it.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

Friends Do NOT Let Friends Engage in Harassing Conduct

I am pleased to share my latest post to The SHRM Blog.

As a result of the “great awakening” last year of the persistence and pervasiveness of sexual harassment, we all know that more must be done to tackle this scourge.  Companies are looking to enhance their preventive efforts, and, of course, that must start at the top.

To minimize the burden on victims, employers are empowering “bystanders.” For examples, employers are—or should be–modifying their anti-harassment complaint procedures to the extent necessary to make clear that an employee does not have to be the object of unacceptable conduct to raise a concern. Employees can raise concerns if they are “bystanders,” that is, if they see, hear or otherwise become aware of harassing conduct.

Leadership training also should include a bystander component. If you have power and you see or hear harassing behavior, you must make clear, “in the moment,” the conduct is unacceptable and then take prompt and proportionate corrective/disciplinary action.

I keep asking myself: what more can bystanders do?  I have one suggestion for consideration: peer-to-peer interventions.

Take the following example:

  • An employee sees his friend look a female co-worker “up and down.” To the best of the employee’s knowledge, no one but he has seen the unacceptable conduct.
  • The employee has no power over his friend. And, he does not want to get his friend in potential trouble by filing a complaint, but does not want to ignore the conduct either.

If the employee is a true friend, he will talk with his peer. Consider the following response:

  • I have bad news and good news.
  • The bad news is that the way you just looked Jane “up and down” is not okay.
  • The “good news” is that I am telling you now so you don’t ever do it again.
  • This conduct demeans women and makes you look bad, too.
  • Please promise me you won’t do this again and will review the Company’s anti-harassment policy.

The emperor wore no clothes because no one told him he was wearing none.  There are degrees of unacceptable conduct, and sometimes a peer can jump in before what he or she sees or hears causes harm not only to others but also to his or her friend.

Of course, there are legal nuances that need to be navigated before incorporating peer-to- peer interventions into your employee training/education.  Those nuances go beyond this blog

For now, it is very simple: friends do not let friends engage in harassing behaviors.

Construing a Continuum of Harassing Behaviors

I am pleased to share my latest article posted to Bloomberg Law Insights.

We hear many people use the terms “sexual misconduct” or “sexual harassment” to describe a continuum of harassing behaviors. Further, more and more employers are adopting or reissuing “zero tolerance” policies for such collectively defined behaviors.

Of course, we must put an end to the litany of horrific behaviors to which women (and some men) have been subjected. There is no defense to the indefensible.

But we also need to be careful not to use a single label to describe a broad spectrum of unacceptable conduct. For example, we all know that a sexually suggestive comment on someone’s appearance is objectively unacceptable. However, if we put that comment in the same category as sexual assault, we risk minimizing the seriousness of the latter by lumping it with the former.
That is part of the danger in zero-tolerance messaging. At first blush, “zero tolerance” sounds good. However, it may be heard as suggesting that, regardless of the severity of the unacceptable conduct, the
wrongdoer will be terminated.

This is dangerous because it may discourage victims who just want the problematic behavior to stop from reporting it because they do not want the wrongdoer to be terminated. Yes, she (or he) will not be a
silence-breaker but instead will suffer in silence to avoid someone else’s suffering more.

Zero-tolerance messaging is dangerous for another reason. A leader who becomes aware of unacceptable conduct by a star performer may not report it for fear that the star will be terminated. The thinking is entirely unacceptable but it is also foreseeable.

So, instead of lumping all behaviors under one label, we need to look at a hierarchy of bad behaviors. Instead of applying corporate capital punishment in every case, we need to take proportionate corrective
action based on how bad the conduct is. At a very minimum, the corrective action must be reasonably calculated to deter further unacceptable conduct.

With this background, here is a hierarchy of behaviors that constitute misconduct or harassment for employers to consider when preparing policies, training programs, investigations, and corrective actions.

1. Lack of Respect/Civility
The law does not require that employers be respectful or civil. Yes, an executive can yell and intimidate its employees, so long as it does not target employees for such hostile conduct based on their gender,
race, religion or other “protected group” status.

While such unacceptable conduct does not violate the law, it violates human decency. Plus, it is bad for business. Employees who are bullied (as well as those who witness it) underperform, if they do not leave
for a better workplace.

Further, disrespectful or uncivil behavior creates fertile soil for harassing behavior that may break the law. One witness who testified before the EEOC Select Task Force on Harassment called incivility the
“gateway drug” to harassment.

For all of these reasons, employers are well advised to respond to disrespectful, uncivil and abusive behavior, even if not unlawful. While employees may call such behavior harassment, employers must be
careful to avoid the label. It may not be.

2. Gray Areas
Telling a colleague that her or his new suit is “sharp” at a social event is not harassing behavior. Conversely, telling that colleague she looks “hot” in that new suit is harassing behavior. Let’s leave what is clear and enter the land of gray.

What if a male colleague tells a female colleague she looks “attractive” in that suit. He may mean “nice,” but his use of “attractive” may be heard as “hot.” The same word may have very different meanings between the parties to the communication.

We all need to be more thoughtful about what we say and do. If a word can have a sexual or suggestive meaning, then find another word.

As employers, we need to keep in mind that not all cases are as black and white as those we have read or heard about during the last few months. In some of the complaints we receive, the conduct falls into gray areas. In such areas, at least for the first instance of such conduct, proportionate corrective action may consist of non-punitive coaching or counseling.

3. Sexually Harassing but Not “Bad Enough” to Be Illegal
Under federal law, for sexual harassment to be actionable, among other factors, it must be severe or pervasive. Some state or local jurisdictions, such as New York City, have established lower hurdles that
must be met for conduct to be actionable.

So, at least under federal law, the following behaviors, in and of themselves, probably do not constitute unlawful conduct:
• a sexist “joke”;
• an inappropriate comment of a sexual or suggestive nature; or
• a leer or a gawk

To prevent harm to employees and to avoid legal liability, employers should respond to sexually harassing behavior, even if the behavior in and of itself is not unlawful. In an employer’s preventive efforts, this message must resonate loud and clear. An employee does not have to violate the law to violate the employer’s policy.

However, in taking corrective action in these circumstances, employers should avoid the legal label. Use “sexually harassing behavior” rather than “sexual harassment.”

But, even here, distinctions must be made within the category of “sexually harassing behavior.” For example:
• If an executive makes a degrading comment about women, it is worse than if a lower-level employee
does the same. Power magnifies the wrong.
• If a lower-level employee makes a degrading comment about women, it is worse if he has done so before and been warned not to do it again.

The label we apply to this category of unacceptable conduct does not alone dictate the nature of appropriate corrective action. What is proportionate also may depend on myriad other factors.

4. Sexual Harassment
Some conduct, in and of itself, constitutes sexual harassment.

The clearest example is when a supervisor or other higher-ranking employee conditions the granting of any term, condition, or benefit of employment on a subordinate’s submission to sexual advances or
punishes the subordinate for not submitting to them. This is often what is referred to as “quid pro quo” harassment, that is, “this for that.”

Another example may be use of the “C” word. Some courts have found that saying the “N” word once may create a racially hostile work environment. A court very well could find that using the “C” word once
may create a sexually hostile work environment.

If conduct is or may be sexual harassment in and of itself, the proportionate corrective action is almost always termination. I say “almost always” rather than “always” because there could be an exception,
such as if the employee’s supervisor used the same hate word and the subordinate said he went “along to get along” with his supervisor. In these circumstances, the supervisor should be terminated. The case of the subordinate may be less clear.

While the severity of the conduct in these cases must inform the level of corrective action, employers still may wish to stay away from the legal label. Employers can do what is right for their employees without
necessarily making what may be argued to be an admission of liability.

5. Sexual Assault
In some high-profile cases, we are dealing with more than the civil wrong of sexual harassment. We are dealing with a criminal wrong: sexual assault.

If, after an appropriate investigation, an employer concludes that there has been a sexual assault, there is only one proportionate remedy: termination.

In this regard, it is important to emphasize that law enforcement may have elected not to pursue the matter does not mean the employer should ignore the matter. While the determination by law enforcement may be one factor an employer may consider, it rarely will be determinative.

Even where an employer concludes there was a sexual assault, such as grabbing a woman’s breasts or genitals, the employer still is better off avoiding legal labels and describing the behaviors.

Conclusion
While there is a continuum of bad behavior, each category does not exist in isolation. We need to recognize that each level of the hierarchy of bad behavior creates a cultural environment where the next level of bad behavior is more likely to occur. Just as lack of civility can be the “gateway” to sexual harassment, sexual harassment can be the gateway to sexual assault. We must have zero tolerance to bad behavior but with a proportionate response to how bad the behavior is so that the bad behavior is not repeated or becomes worse.

This article is not legal advice and does not apply to specific factual situations.

Time to Deck the Halls

The holiday season may be viewed by many as “the most wonderful time of the year,” but it is also the time of year where employers can find themselves on the naughty list – facing potential religious discrimination suits.  Since Santa may not be the only one checking his list twice this year, it is important for employers to respect the diverse views of all employees during this festive time of year.

One potential area of concern during these winter months is holiday decorating.  While employers should be sensitive to the myriad of religious/secular holidays celebrated near year-end, the Equal Employment Opportunity Commission (EEOC) and the Supreme Court have suggested that certain holiday decorations typically should not be an area for concern. [1]

Title VII does not require employers to ban the display of holiday decorations in the workplace, nor does it require employers to display holiday decorations associated with every religion.  Thus, employers who choose to allow holiday decorations should not prohibit employees who wish to decorate their personal office spaces from doing so, even if the employees’ beliefs are not shared by everyone in the office. However, employers opting to allow employees to “deck the halls” must be consistent – generally speaking, allowing Jenny to have a Christmas tree at her desk means Harry should be allowed to display his Wiccan pentacle, and Bill his menorah.

Naturally, this does not mean employers can force employees to decorate their personal office spaces for the holidays.  Nor does it mean mistletoe decorations are a great idea for the break room.  (There is truly no need for mistletoe in the workplace!)

When choosing to decorate communal office space, employers should remember that sensitivity to diversity of the workplace promotes a healthy and more inclusive work environment.  Thus, employers should consider using secular decorations like lights, snowflakes, and garland in common areas as opposed to more religious symbols. Of course, faith-based organizations appropriately can include more religious decorations that reflect their faith.

Finally, some employers may want to take a page out of How the Grinch Stole Christmas and ban all holiday decorations. There is generally little legal risk in taking this approach, so long as there is consistent and uniform enforcement of the policy.

No matter what holiday decoration policy employers choose to enact, it should be applied consistently to all employees in order to ensure a happy holiday season for all.

Max's Mistakes
Max’s Mistakes

This blog should not be construed as legal advice.

____________________________________________________

 

[1] See EEOC Compliance Manual, (last updated 2011); County of Allegheny v. ACLU, 492 U.S. 573 (1989); Lynch v. Donnelly, 465 U.S. 668 (1984).

 

Jonathan Segal Quoted in TIME Magazine’s “Person of the Year” Article

Congratulations to our Managing Principal, Jonathan Segal on being quoted in TIME Magazine’s Person of the Year article on The Silent Breakers!

Click here to read the article.

5 Effective Ways to Upgrade Your Anti-Harassment Policy

I am pleased to share my latest article written for SHRM.

Good policies—including your anti-harassment policy—can help shape the workplace culture. Here are five general recommendations for HR professionals to consider as they revisit their organizations’ existing anti-harassment policies.

Don’t Be Limited to Sexual Harassment
Every anti-harassment policy should cover sexual harassment. But we cannot forget that other kinds of harassment are equally unlawful and must be addressed, too.

Simply stated, harassment based on any protected status is prohibited. This would include race, ethnicity and religion.

Imagine the question you’ll be asked at a deposition in a lawsuit from one of your employees if your policy addresses sexual harassment but not race: “Why do you think sexual harassment is worse than racial harassment?” There’s no good answer.

Avoid the question by making sure your policy is not limited to sexual harassment.

Avoid Legal Definitions
All of us have seen policies that quote regulations published by the Equal Employment Opportunity Commission (EEOC). The legal definition is fine for lawyers but, without more context, provides inadequate notice to employees.

You must include real-life examples of unacceptable conduct in your policy, examples that will resonate in your organization’s culture.

Sometimes, employers struggle with how much detail to provide. I get it. You don’t want to make individuals uncomfortable with a policy that was designed to make the working environment more comfortable.

Why not make this concern explicit in the policy? State that your intent is not to make anyone uncomfortable but instead is to make clear what is unacceptable so that employees have a comfortable working environment.

Even with this disclaimer, please be thoughtful on how you describe prohibited conducted. For example, every policy should include the phrase “hate words.” But I would never use the actual words.

However, you can give examples without spelling them out. For example, you might say: “Use of hate words, such as the ‘n-word.’ ”

Don’t Focus on What Is Prohibited

In order for harassment to be unlawful under federal law, it must be, among other factors, severe or pervasive. The more severe it is, the less pervasive it need be. The converse is true.

However, employers do not want to wait until conduct is unlawful before prohibiting (or responding to) it. The goal is to prevent and remedy harassing conduct before it rises to the level of illegality.

Therefore, it is recommended that, within a policy, employers lead off the examples of prohibited conduct with something like: “The following behaviors are unacceptable and therefore prohibited, even if not unlawful in and of  themselves.”

The law sets a minimum. You want to make clear that you will not tolerate unacceptable conduct, even if it is not unlawful.

On a related note, it is dangerous to start your list of prohibited conduct with something like: “Sexual harassment includes but is not limited to … ” This is problematic for multiple reasons.

First, the conduct at issue may not be harassment as a matter of law. Mocking a disabled employee’s walk is harassing behavior based on disability. But, at least under federal law, if there is nothing more, it is probably not enough in and of itself to create a hostile work environment.

Second, if your prohibitions are framed in terms of legal wrongs, your corrective actions may need to be, too. And here you risk defamation claims.

That is, the conduct may not be severe or pervasive enough to violate federal law. But it may be bad enough to meet your judgment as to what is unacceptable, and therefore, it may be prohibited. Why apply a standard to conduct you may not be able to prove?

Drill Down on Sexual Harassment

Of course, you will want to include quid pro quo harassment and give an example of what that means—for example, requiring an employee to submit to sexual advances as a condition of a promotion.

But you also will want to include examples of conduct that does not constitute quid pro quo harassment that may nonetheless give rise to a hostile work environment. Common examples include sexual bantering, sexual “jokes” and inappropriate touching.

However, do not limit your examples to the strictly sexual. In particular, do not forget to include examples that involve pregnancy as well as gender-biased statements, such as stereotypes about women or men.

It is not just comments about someone’s sexual desirability that may give rise to a hostile work environment. Comments about someone’s perceived lack of attractiveness can give rise to a hostile work environment. Sexual objectification—favorably or negatively—is unacceptable.

Consider the Scope of the Prohibitions

It is helpful to make it clear how the prohibitions apply. Here are a few suggestions:

◾ First, make clear that the prohibitions apply to employees and nonemployees alike. Your employees cannot subject nonemployees with whom they work to prohibited conduct, and they should use the complaint procedure if a nonemployee with whom they work engages in such conduct.

◾ Second, be careful not to suggest that the policy applies only in the workplace. At a very minimum, make clear that the policy applies to company-sponsored social events.

The policy should make explicit that the prohibitions apply not only to the spoken or written word but also to e-mail, text messages and social media posts. I have observed a steady rise in the number of cases of harassment involving text messages and social media, so employees should be put on notice.

Of course, some social media may be strictly private. That is rare but possible. Consider language to the following effect: The harassment policy applies to social media posts, tweets, etc., that are about or may be seen by employees, customers, etc.

Yes, the employee’s Facebook account may be configured as private. But if co-workers are friends and see the posts, the posts are fair game for corrective action.

Of course, a strong anti-harassment policy is only half the equation. The other half is a robust complaint procedure, which will be addressed in an upcoming column.

Advice for Managers: What I Learned from the Matt Lauer Revelations

I am pleased to share my latest post to Philadelphia Business Journal.

When allegations initially were made against Harvey Weinstein and Kevin Spacey, I admit I was not surprised. While I was not aware of their reputations, I always found both of them somewhat “creepy.”

When multiple individuals came forward corroborating each other, it became clear that we are dealing with serial harassers. Again, I was not surprised.

This is important because the additional evidence confirmed my emotional reactions to them. I know enough not to make investigatory findings based on an emotional pre-disposition, but everyone who conducts investigations needs to be aware of their own emotional predispositions so that investigations do not end up with “confirmation bias.”

Then, came the termination of Matt Lauer. I was, to put it mildly, shocked.

For many years, I started my mornings with Katie and Matt. I respected and like both of them. I had “welcomed” them into my home.

While Matt Lauer denies some allegations, he has admitted wrongdoing. In his first public statement since being fired from NBC’s “Today” show, Lauer said “Some of what is being said about me is untrue or mischaracterized, but there is enough truth in these stories to make me feel embarrassed and ashamed.”

I thought Matt was smart and likeable. More importantly, my sense was that he was a decent man.

So, when the allegations against Matt Lauer were released, and more women have since come forward, I thought: “this does not sound like Matt Lauer.” Of course, I don’t know him but his conduct as it has been revealed did not comport with my perception of him.

In workplaces, managers routinely receive complaints about other employees who allegedly have engaged in harassment. How they respond is incredibly important.

I was aware of my emotional reaction to Weinstein, on the one hand, versus Lauer, on the other hand. But what if my emotional reactions were reflected in my verbal responses as a manager.

What if I had said, about Weinstein, “I’m not surprised.” That would have suggested knowledge, even if not the case.

What if I had said, about Lauer, “That does not sound like Matt!” I would have been diminishing the allegations based on how I perceived the alleged wrongdoer.

When we train managers, it is absolutely critical that we provide them with guidance on how to respond “in the moment” to allegations of harassment. If we don’t, they may focus on how they feel and not the woman (or man) before them.

In my view, the appropriate response to a complaint starts with: “Thank you for bringing your concerns to my attention. We take them very seriously.”

Yes, it is human to have an emotional reaction based on your view of the individual who allegedly has done wrong. But, it is inappropriate to share that reaction when someone has the courage to step forward, regardless of whether you end up being right or wrong.

The truth is that none of us knows for certain who would–or would not–engage in sexually harassing behavior. That’s why investigations are so important, without assumptions, one way or the other.

I believe that Lauer is sorry. I hope that it is not simply because he got caught.

I thought I knew Matt Lauer. I was wrong.

Illinois Bucks the Trend on Salary History

A growing number of cities and states have enacted legislation banning employers from inquiring about an applicant’s past salary history in an effort to remedy the gender pay gap and combat discrimination.  Illinois will not be joining that list—at least not yet.

On Thursday, November 9, 2017, the Illinois state senate failed to override the governor’s veto of its salary history bill.  The governor, Bruce Rauner, initially vetoed the bill in August suggesting his state should instead model its bill after its Massachusetts counterpart—providing more flexibility to employers.  A successful veto override required 71 votes in the House and 36 in the Senate—the override failed in the Senate on Thursday, receiving 29 “yeas,” despite some bi-partisan support.  Much like other jurisdictions’ versions of salary history bans, the proposed legislation would have made it unlawful for an employer to seek a job candidate’s compensation history, including pay and benefits, unless a matter of public record.  The ban would not have applied to current employees seeking another position within the company.

Illinois is not the only jurisdiction struggling to implement a salary history ban.  Philadelphia, despite being one of the first cities to introduce a ban, recently agreed to stay its law until a legal challenge is resolved. New Jersey is also facing similar struggles after New Jersey governor, Chris Christie, vetoed legislation in August that would have amended the New Jersey Law Against Discrimination to prohibit employers from requesting salary history information from prospective employees. However, NJ employers should be cognizant of changes in this area because it is likely that lawmakers will introduce the same or similar legislation once he is out of office next year.

While the “past salary” question is thus still permissible in Illinois, employers should be aware of the expanding list of cities and states where the question is impermissible and could lead to a multitude of headaches and potential litigation.   Employers in jurisdictions listed below should ensure their HR managers, recruiters, and applications are up-to-date on what type of, if any, inquiries into an applicant’s salary history are acceptable.

State/City/Locality Effective Date Which employers are covered?
Pittsburgh In effect Only applies to city employees
New York In effect Only applies to state employees
New Orleans In effect City employees and employees of contractors who work for the city
Oregon In effect All employers
New York City In effect All employers of any size that are hiring job applicants in New York City
Puerto Rico In effect All employers
Delaware Dec. 14, 2017 All employers
San Francisco July 1, 2018 All employers
Philadelphia Stay pending legal challenge All employers

 

Max's Mistakes -Salary History Ban
Max’s Mistakes

 

 

Men Must Do More to End Harassment

But again we have been rocked by explosive allegations of sexual harassment and sexual assault. In the case of Harvey Weinstein, there are now more than 30 women who have stepped forward. Weinstein admits to bad behavior but claims it was all consensual.  From what I have read, this is not a good defense, even for a science fiction movie.

Weinstein is far from the only predator in Hollywood, and Hollywood is just a symptom of the problem. The casting couch can affect who gets plum assignments, leads, contacts, etc. in any industry. Few men with power would ever consider, let alone engage in, the kind of conduct engaged in by Weinstein and others but they must do more than just refrain from the indefensible. With power, men  have the opportunity, indeed the obligation, to create cultures where harassment does not flourish. So what do we do?

1. Stand up in the moment.

You don’t need to have a daughter to stand up. You just need a conscience and a spine. So speak up if you see or hear bad behavior. To be silent is to condone. Yes, the worst behaviors are very often private but sometimes they are accompanied by less serious but still bad public behavior. For example, don’t laugh at the sexist jokes. Instead, make clear they are offensive to you and then take corrective action.

The less serious public behaviors may be but the tip of the iceberg. Where appropriate, engage a third party to see if there is more than meets the eye. Climate surveys by skilled professionals can uncover what has not been reported without creating claims where none may exist.

2. Don’t wait for the direct complaint.

The victims of harassment frequently are embarassed or feel unwarranted shame. Some women won’t vocalize their discomfort but instead avoid the harasser or become uncomfortable when his name is mentioned. Observe closely for, and listen carefully to, signals that something may be wrong.

There won’t always be signals. But where there are warning signs, think about  how to offer your help in a way that respects the recipient and does not create an issue where there may not be one.  This can and has been done successfully.

3. Create additional reporting vehicles.

Fear of retaliation is a great inhibitor of timely reporting. So you may want to take a look at your company’s policies and at least consider having a procedure by which employees can report complaints externally, even anonymously.

Not every complaint is true and that applies to anonymous complaints, too. But every complaint should be taken seriously, and  I have been involved in matters where the ability to report externally and anonymously has  led to the facts that resulted in the unmasking of a serial harasser. So consider the option.

4. Hold other leaders accountable.

Harassers sometimes generate big bucks and that is why individuals sometimes cover up for, and even truckle up to, them. You need to cross their bridge to get meaningful work and the money that goes with it. Make clear to other leaders that you expect them not only to refrain from harassing behavior (severe or subtle) but also to report to a designated person or entity complaints or potential problems which they see, hear or of which they otherwise become aware. Ostriches don’t make good leaders.

As with all expectations, reward those who live up to them and punish those who don’t.  Your organization is only as strong as its reputation and it can be  destroyed if leaders are passive bystanders.

5. Model what you expect.

Most of all, men in power need to be good role models. There is nothing cool about demeaning women. The abuse is both powerful and pathetic. There is no defense to the indefensible. Sexual addiction is no more a defense to harassment than alcoholism is to driving drunk.

Speaking of alcohol, it is a major risk factor. Some cultures celebrate alcohol and such alcohol-centric cultures take away any slim inhibitors that otherwise might exist. Bottom line: it’s on men. Any questions, pal?

This column was originally published on Entrepreneur.com on 10/20/17. 

 

 

When Employers Shouldn’t Require 100% From Employees

A recent consent decree between the U.S. Equal Employment Opportunity Commission (“EEOC”) and American Airlines Inc. and Envoy Air Inc. takes direct aim at the legality of employers’ “100% return-to-work” policies which require that an employee be restriction-free before returning to work from a medical leave of absence.  Pursuant to the consent decree, entered into on November 3, 2017, the same day a complaint was filed in federal court in Arizona, American Airlines and Envoy Air (the “Airlines”) will pay $9.8 million to settle the claims asserted in the lawsuit.

The complaint, which was filed by the EEOC on behalf of a putative class of disabled employees and former employees of the Airlines, claimed that the Airlines violated the Americans with Disabilities Act (“ADA”) by refusing to accommodate employees with disabilities, terminating employees with disabilities, and failing to rehire employees.  By way of background, the ADA requires employers to provide individuals with disabilities with reasonable accommodations that will enable them to perform the essential functions of their job. The complaint alleged that the Airlines failed to meet their reasonable accommodation obligation under the ADA by maintaining a 100% return-to-work policy, in place since at least January 2009, that required employees on a leave of absence for medical reasons to be without work restrictions before they were permitted to return to work.

The complaint alleged that the Airlines had a policy that required employees who were no longer able to do their job without reasonable accommodation to find other jobs, apply for other jobs, or to compete for other jobs, without providing the option of non-competitive transfer or reassignment as a reasonable accommodation.

According to the complaint, by requiring employees to be 100% healed upon their return to work, Defendants were violating the ADA and limiting aggrieved individuals with conditions such as back injuries, cancer, lupus, asthma, knee injuries, abdominal injuries and strokes who were qualified to perform their jobs with or without an accommodation.

In addition to the $9.8 million settlement payment, the Airlines agreed to adopt a policy and/or practice to assist disabled employees with the reassignment process for reasonable accommodation purposes, and to differentiate between essential and marginal job functions when determining whether a reasonable accommodation can be made.

The Airlines also agreed not to adopt or enforce a policy or practice that “prohibits employees from continuing to work or returning to work, solely because the employee has medical restrictions…[or] places restrictions on employees more restrictive than those proposed by the employee’s personal physician, unless the employee has had more restrictive restrictions assigned to him or her by an Independent Medical Examiner.”

Furthermore, the consent decree mandated both Airlines identify an employee to be the designated ADA Coordinator, explaining such person must have expertise in the ADA, EEOC compliance, human resources, and personnel matters. The ADA Coordinator would be responsible for a number of tasks including assisting with creating and implementing ADA training and evaluating whether any changes to the Airlines’ policies and procedures adequately protect employees with a disability from disability discrimination, harassment, or retaliation. Companies that do not already have someone performing this function may consider exploring this option to ensure consistent processes for handling reasonable accommodation requests.

Although the Airlines did not admit liability on the EEOC’s claims, employers should take heed of the result and, in particular, the EEOC’s position regarding 100% return to work policies. Accordingly, employers should think twice about implementing policies that may require employees to be without restrictions before returning to work from a medical leave of absence.  In addition, employers should review existing policies and practices to assess their risk of finding themselves in the sights of the EEOC, or a private plaintiff or class of plaintiffs, for failing to accommodate employee disabilities by imposing potentially unlawful return-to-work requirements. Rather, the inquiry should focus on whether the employee can perform the essential functions of the job with/without accommodation. See generally Warmsley v. New York City Transit Auth., 308 F. Supp. 2d 114, 121 (E.D.N.Y. 2004).

Thus, while employers should always want employees to give 100%, this is one area where employers should settle for less.

Bob Cartoon 1

 

This blog should not be construed as legal advice.

 

The Role of HR in Smashing Harassment

Please read my latest post to The SHRM Blog on the importance of HR in stopping harassment.

I have been thinking a lot about Harvey Weinstein and other high-profile cases of serial sexual harassment. These cases are extraordinarily disturbing, to say the very least.

There are some who have suggested that the Weinstein nightmare is simply a Hollywood problem, dismissing it as nothing more than the age old “Hollywood casting couch.”  How patently wrong they are.

Hollywood needs to clean up its act, but it is not just Hollywood. What happens in Hollywood is but a symptom of a much broader societal problem.

Predatory sexual behavior by men with power exists in every industry. Of course, women can engage in harassment, too, but I am not aware of any women who have exploited their power to harass men or women in the way Weinstein and other men have done.

This is not to suggest that all men with power abuse it in such a heinous way. But leaders in general and men in particular must do more than avoid what is wrong, and behavior is wrong long before it rises to the level of what has been reported in the high-profile cases. By their words and their actions, leaders must make the organization’s anti-harassment policy a true reflection of corporate culture.

HR plays a critical role in this battle. Publicly, HR professionals must stand up to harassment and implement holistic programs to prevent it from occurring. But not all preventive efforts will be successful.

When bad behavior happens, there must be consequences. More quietly, HR has and will continue to play a key role in helping to remove from workplaces those who abuse their power and assault the dignity of others.

On social media, I have seen some ask whether HR is protecting the employer or its employees. The answer is both.

HR must protect employees and, in doing so, it protects the business from legal and reputational risk. There is a reason that the “H” in HR stands for human.

Recent events do not create a new issue for HR to tackle. The best HR professionals are already all over it.

But HR has an opportunity, indeed an obligation, to ask itself: What more can be done? The HR professionals with whom I speak are asking questions along the lines of:

  • How do we ensure that leaders do not simply pay for but attend anti-harassment training and make clear their support for it — again, by their words and actions?
  • What is the best way to assess whether there may be a culture of complicity and, if there are complicit people with power, how do we best incent them to do what is right and stand up to what is wrong?
  • Knowing that many women who feel harassed do not bring claims out of fear, how can we create complaint procedures and environments in which employees do not fear retaliation if they raise or support concerns?
  • How do leaders respond “in the moment” to unacceptable conduct without engaging in paternalistic rescuing or re-victimization?
  • Other than thanking an employee for bringing any concerns to their attention, what should leaders say (or not say) when an employee has the courage to open up to them?
  • How can we respect the strong desire of many victims of harassment to keep the matter as confidential as possible but still send a strong message that the company will not brook unacceptable conduct, severe or subtle?
  • What are some promising practices to remind employees throughout the year of the reporting mechanisms, assurances of non-retaliation and harassing behaviors that must be avoided, recognizing that, even in the best cultures, training once a year may not be enough?

 

These and other questions require careful thought. Our employees deserve nothing less.

But one point must be crystal clear in every organization: The more power you have, the more is expected of you. Those who abuse their power must be met with prompt and proportionate corrective action.

In some cases, this will mean terminating the rainmaker. But if you ignore, or worse yet protect, him, a jury can and will take away all the rain. Plus, values matter.

While I am horrified by recent events, I have some hope by the response I see in the HR community. But HR cannot do it alone; it does not “own” civility.

Every leader must join the battle. It is one of the moral imperatives of our time.

Segal was appointed to and served as a member of the EEOC’s Select Task Force on Harassment. However, Segal speaks for neither the EEOC nor the taskforce.     

 

95 Million Reasons to Conduct an I-9 Self Audit…Very Carefully

I am pleased to share my latest post to The SHRM Blog.

In 2009, the Department of Homeland Security (“DHS”) began auditing the I-9 practices of Asplundh Tree Experts Co.  Last month, the Company pled guilty in Pennsylvania federal court to a charge of knowingly employing immigrants without authorization to work in the U.S.  The fine: a record $95 million.

In response, more and more employers are considering self-audits before DHS comes knocking at their doors.   While employers are well-advised to conduct an I-9 self-audit, there are legal minefields that need to be navigated or the self-audit may increase the employer’s potential liability.  Here are but some examples:

  • In the interest of being super compliant, some employers have considered having all employees execute new I-9s.  This is not super compliant, but rather super dangerous.  It raises serious discrimination risks under the Immigration Reform and Control Act (“IRCA”).
  • Other employers have questioned whether the Trump Administration’s Executive Order on DACA workers (Dreamers) requires that employers complete new I-9s for these DACA workers.  The answer is an unequivocal “NO.”
  • Employers cannot select for inspection employees they perceive to be high risk, such as those on visas, or those with “foreign-sounding” last names.  This type of targeted audit raises all but certain liability not only under ICRA but also the employment non-discrimination laws.
  • Inevitably, employers may find that some I-9s are missing.  In these cases, employers should complete new I-9s, dating them on the date in which they are completed.  NEVER back date.
  • In other cases, employers may find I-9s that are incomplete.  In these circumstances, the employer, using a different color ink, should have the document completed (either by the employer and/or the employee, depending on the omission) and, again, the employer should date the change on the date in which it is made.
  • In still other cases, there may be a mistake.  No employer ever should white out anything on the original I-9.  Rather, the employer, in a different color ink, should cross out the incorrect language, substitute the correct language and date same on the date the change is made.
  • The employer should prepare a summary of the scope of the audit, the manner in which it was conducted, and its findings.  But this is another blog for another day.

This blog should not be construed as legal advice.

Warning About Implicit Bias Awareness Test

Please read this important article I wrote for SHRM on how implicit bias is a real problem and so are the tests that purport to measure it.

We all know that not all bias is conscious. Some bias is unconscious—often, referred to as implicit bias.

This means that we may be engaging in bias without even knowing we are doing so. This is most likely to occur when we make snap judgments.

For example, most of us have read about, or at least heard of, studies that demonstrate the name on an application affects the likelihood a candidate will be selected for an interview. Men do better than women and candidates with names that are often associated with people of color are less likely to be selected than those with names that are not. In other words, Kesha will get fewer interviews than Karen, and Karen fewer than Kevin.

To help bring implicit bias to conscious awareness, some employers are using tests designed to measure implicit bias. One popular example is the Harvard Implicit Awareness Test (“IAT”).

However, these tests are far from conclusive. There is substantial debate in the psychological and neurological communities about whether the Harvard IAT or other tests truly measure implicit bias.

Further, these tests create evidence that may be used against employers. Let me give you an example.

Your executive team members take implicit awareness tests. Cindy is your Chief Information Officer, and the results of Cindy’s implicit awareness test suggests an implicit bias in favor of women.

Cindy promotes Susan over Zachary. Zachary’s counsel argues that the results of Cindy’s test help establish gender bias.

Are the test results admissible at trial? The law is not yet settled but the answer may be “yes.”

What do you do if admissible? Hire an expert to discredit the test you administered?

At a very minimum, you need to be aware of this risk. My raising this legal risk is not hypothetical..

Better yet, consider ways to get at implicit bias without creating admissions that can ravage you in litigation. The options are as vast as your creativity.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as creating an attorney-client relationship.

The Risks of Bias Testing

I am pleased to share my article written for SHRM’s HR Magazine posted on August 25, 2017. 

When hiring and promoting people, HR professionals and managers know that certain factors—such as gender, race, disability status and age—cannot be considered in the decision-making process under the law. What they may not understand, however, is that, without any conscious awareness, they actually may be considering these precise factors.

For example, a white male manager may know that gender and race lawfully cannot be considered in a hiring situation. But he, as a white man, may favor a white male candidate over a woman of color based on how “comfortable” he is with each of them, even though he has no idea that his comfort level may relate to race and/or gender.

Unconscious bias, often referred to as implicit bias, is bias that we are unaware of. It happens automatically and without any conscious thought process and is triggered by our brain making snap judgments formed, at least in part, as a result of the messages that we received growing up, as well as our own experiences, culture, mass media and other influences.

But how can we address a form of bias that we are unaware we have?

The first step is to acknowledge that bias exists and that no one is immune from it. Good people can—and do—make biased decisions. That’s one reason a training approach with a punitive tone won’t work well and, in fact, is likely to be counterproductive.

Implicit bias is both personal, in that the various stereotypes that employees have internalized can vary based on their experiences, and ubiquitous, in that we all harbor unconscious assumptions; it’s part of being human.

That doesn’t mean we should sugarcoat the issue—but it’s important to understand the dynamics driving unconscious bias and to think about how to best raise the topic so that individuals will be motivated to learn more about it and how it influences their decision-making. Raising awareness through bias testing, however, is a risky approach.

Understand the Evidence

You can start by familiarizing yourself with the scientific evidence demonstrating the existence of unconscious bias. In a 2002 study by the University of Chicago Booth School of Business, “Are Emily and Brendan More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination,” researchers sent recruiters virtually identical resumes that differed in only one way: the applicants’ names.

They found that individuals who submitted resumes with “white-sounding” names received 50 percent more callbacks than those whose monikers were more likely to be associated with black applicants. In other words, all else being equal, Karen will fare far better in her job search than Keisha will.

Another classic study, 1997’s “Orchestrating Impartiality: The Impact of ‘Blind’ Auditions on Female Musicians” by the National Bureau of Economic Research, involves an orchestra that wanted to increase gender diversity but was having trouble finding women with the requisite talent.

After the orchestra had no luck with the traditional audition process, individuals were asked to perform behind a curtain. Magic! As a result of this step alone, women were 50 percent more likely to proceed to the final round of auditions.
In both cases, conscious and unconscious bias were likely at work. But as the latter example—in which the orchestra stated a genuine desire to increase gender diversity—shows, it is often people’s implicit prejudices that steer them toward partial outcomes.

 

Know the Basis for the Bias

What is the basis for implicit bias? Part of the answer may lie in neurology and social psychology.
Stereotypes that are perpetuated and reinforced by messages we receive through the media, societal cues or our individual experiences can become embedded in the amygdala region of the brain, which is activated when we make snap judgments based on pictures, images or names that can correlate with a characteristic such as race, gender or age. As a result, we make unconscious associations, which can be either positive or negative, based on these factors.

 

Understand the Risks Of Testing

There are a number of tests that individuals can take to become more conscious of their unconscious biases. One is the Harvard Implicit Awareness Test (IAT), which measures implicit bias in 14 areas, including gender, race, religion, age and sexual orientation.

The test shows images and words associated with a color, gender, religion, etc. Generally, the slower the test-taker is in pairing certain words or images with a specific group, the more likely he or she has an implicit bias, according to the assessment.

A report published in the European Review of Social Psychology in 2007, “Pervasiveness and Correlates of Implicit Attitudes and Stereotypes,” found that:

  • 68 percent of respondents had a more favorable automatic association with people who are white than they did with people of color.

  • 76 percent made a greater connection between the words “men” and “careers” and “women” and “families” than they did with the converse concepts (“men” and “families,” and “women” and “careers”).
But while the IAT and other such tests may be instructive for individuals, these assessments are far from conclusive. For example, there is considerable debate among psychologists about their reliability. (A discussion on this topic appears in “IAT: Fad or Fabulous?” in the July/August 2008 issue of the American Psychological Association’s Monitor on Psychology.) Moreover, the tests may create legal risk because the results are discoverable in litigation.

Consider the following example: Greg chose Jim over Jane for a promotion. Soon afterward, Greg is deposed in a claim by Jane alleging sex discrimination. The plaintiff’s attorney initiates the following line of questioning:

“You took an implicit awareness test?” the attorney asks.

“Yes,” Greg replies.

“Did you have any implicit bias in terms of gender?” the lawyer continues.

“I was surprised to learn that I favor men over women,” Greg says.

 “And you picked Jim over Jane. Is that correct?” At this point, the plaintiff’s attorney is thinking about using the money her firm wins in this case to purchase a summer home.

“Yes, that is correct, too,” Greg says.

“But you admit both were qualified?” she asks.

“Yes, but …” Greg trails off.

Now Greg’s company would need to bring in an expert to discredit the test that was used, and even then the jury could find the test to be more valid than some psychologists may find it to be.

So think carefully before reflexively using implicit awareness tests. At a very minimum, consider their potential usefulness as well as the legal perils that they may create.

Fortunately, there are less-risky steps employers can take that are helpful in identifying and addressing unconscious bias. I will cover them in next month’s issue.

Guidelines for How Employers Should Respond to DACA Uncertainty

This column was originally published on Entrepreneur.com on 9/7/17.

Yesterday, the Department of Homeland Security (DHS) ordered the wind down of the program known as the Deferred Action for Childhood Arrivals (“DACA”). In a memorandum issued with the rescission order, the DHS announced how the program will end.

DACA was founded by the Obama Administration in June 2012. DACA allows certain illegal immigrants who entered the country as minors to receive deferred action from deportation and eligibility for a work permit. It is estimated that approximately 800,000 individuals are covered by the program.

The DHS memorandum is clear that all current work permits remain in effect and will not be revoked. However, as of September 5, 2017, USCIS will not accept any new DACA requests.

The DACA program is scheduled to terminate on March 5, 2018 unless Congress saves the program. According to a press release by DHS, the deferral was designed “so Congress can have time to deliver on appropriate legislative solutions.”

What should employers do when they have DACA employees in their workplace? Three critical points:

1. Focus on the workplace issue as apolitically as possible.

Some employers will undoubtedly focus on the political, as is their right. However, if employers want to take a stand without creating polarity in their workforce, they are generally advised to be as apolitical as possible. The message is simple: you stand behind your DACA employees and will do what you reasonably can to support them.

2. Provide employees support but be careful of promises.

You can let employees know what you will be doing, such as writing to your senator or legislator. But be careful not to promise DACA employees that you will protect them no matter what. No one knows what the status of the law will be on March 5, 2018. As sympathetic as you may be, you cannot promise that you will protect these employees if the law is to the contrary.

One thing employers can do is seek work permit extensions to the extent permitted by the DHS Memorandum. While the details of seeking extensions should be discussed with immigration counsel, keep in mind that any such extensions must arrive at the USCIS no later than October 5, 2017.

Again, seeking extensions may slake some of the anxiety of DACA employees. But make clear there are no guarantees so they cannot later claim they relied to their detriment on your actions in not developing a plan B.

3. Don’t push employees to lobby for a legislative solution.

Employees may ask you if there is anything they can do to help their DACA colleagues. You can respond that they can contact their representatives in the Senate and House (mentioning that is what you are doing, if that is case.). But make clear that you are responding to their request and whether they choose to reach out to their representatives is entirely voluntary.

Do not reach out to all employees and encourage them to engage in grassroots advocacy (one way or the other). Not all employees will agree, and your doing so will then turn your workplace into a political battlefield. Plus, there are potential legal risks, to boot!

DHS has promised more detail. Stay tuned.

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

Florida Employers: Wage and Hour Considerations and Hurricane Irma

I am pleased to share my latest post to The SHRM Blog.

Just as Texas begins its slow recovery from Hurricane Harvey, Florida braces for Hurricane Irma. So, we must, again, look at wage and hour rules:

1. As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed. However, you generally can require that an exempt employee use PTO during a day in which you close.

2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day. If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time. You also must pay him or her if he or she does any work from home.

3. There is no legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for non-exempt employees who are paid under the fluctuating work week. Under the FLSA, they must be paid if you close due to the hurricane for less than full work week and they do any work in the work week, whether it be few or many.

4. Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed.

5. Also, if non-exempt employee works at home, you must pay for all time worked. Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid. Remember, break rules apply to working at home too.

6. Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.

7. Thankfully we all know that no employee should be told to put themselves at risk to come to work. Just in case there is a manager who does not know this, you should make sure they do. Thoughts and prayers to our colleagues and their workers in Florida and its surrounding areas.

Houston Employers: Wage and Hour Guidance and Hurricane Harvey

I am pleased to share my latest post to The SHRM Blog.

For Texas employers, particularly in and around Houston, the priority is helping employees and remaining as operational as possible. Just a reminder of the wage and hour rules that apply to remaining as operational as possible.

1. As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed. However, you generally can require that an exempt employee use PTO during a day in which you close.

2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day. If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time. You also must pay him or her if he or she does any work from home.

3. There is no legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for non-exempt employees who are paid under the fluctuating work week.  Under the FLSA, they must be paid if you close due to the hurricane for less than full work week and they do any work in the work week, whether it be few or many. http://www.twc.state.tx.us/news/efte/h_regular_rate_salaried_nx.html

4. Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed.

5. Also, if non-exempt employee works at home, you must pay for all time worked. Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid. Remember, break rules apply to working at home too.

6. Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.

7. Thankfully we all know that no employee should be told to put themselves at risk to come to work.  Just in case there is a manager who does not know this, you should make sure they do.  Thoughts and prayers to our colleagues and their workers in Houston and its surrounding areas.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP

 

The Privilege of Talking with Your Lawyer

I am pleased to share my latest post to The SHRM Blog.

Almost every HR professional deals with an attorney. With strong relationships, sometimes you will refer to the lawyer as your lawyer. Not so fast. Here are 6 recommendations to keep in mind when you deal with “the” lawyer:

1. The lawyer engaged by the Company represents the Company and not you. So be honest about work issues but be careful about issues that may be adverse to the Company. If you are thinking of exercising your legal right to bring a claim, do not give the Company’s lawyer a heads up! He or she, ethically, cannot retain your confidence.

2. The attorney-client relationship covers only communications in which you ask for advice on behalf of the Company or the attorney gives advice to the Company through you.  It does not cover, for example, an offensive “joke” that you tell the Company’s lawyer in confidence.  By the way, don’t tell the “jokes.” Full stop.

3.  While only the Company can waive the attorney-client privilege, steps HR takes may be used to argue the Company has indeed waived the privilege. So, do not tell others, except those within the Company with a need to know (narrowly defined and fact specific) about the legal advice provided.

4. Label e-mails where you seek or respond to legal advice “privileged and confidential” or “attorney-client privileged.” Avoid labels that may imply such but still can be less than fun to address in litigation, such as “Help! I am going to jail.” You should win on the privilege issue but who wants to win an issue that can be avoided.

5. Do not put “privileged and confidential” or “attorney-client privileged” on business documents. That does not shield it from discovery. It only makes the label, where you legitimately have it, questionable. If everything is privileged, then nothing is.

6. If you have a conversation with the Company’s counsel and a manager during which you make a business decision, that decision was made in a privileged call. Unless you want to risk having to disclose what you discussed, including the risks of the business decision, have a separate business conversation with the manager and without the lawyer.

These are but a few issues to consider when dealing with the Company’s counsel. More to common in a future blog!

Oh, by the law: this is not legal advice :-).

An Alternative to Voluntary Retirement Programs

I am pleased to share my latest post to The SHRM Blog.

Under federal and state laws (most or all), employers can have voluntary retirement programs. Of course, there is much litigation on whether and when an employee’s decision to retire is truly voluntary.

However, even if there is no pressure placed on an employee, think about the message that the program sends and/or likely will be heard as sending: we want to get rid of mature employees. This places “age in the air” and can be used to argue age bias when an older employee later is discharged or laid off (even where there is no bias).

Here’s the argument: you tried to incent me to leave; when that failed, you removed me involuntarily. And, how will a jury react?

Jurors have only one common denominator: everyone on the jury hopes they have gift of longevity; that is, that they, too, get older. So there may be sympathy and empathy for the mature worker.

There is an alternative, and safer, approach: a voluntary severance program that is offered to all or groups of employees regardless of age. Older employees with more seniority usually will be eligible for more by virtue of their seniority but the program is not aimed at them.

But what if someone applies and you want to say “No?” No material worries (absent saying “No” in a discriminatory way).

If a voluntary severance plan is properly drafted and distributed in accordance with ERISA, an employer should be able not only to exclude from consideration certain groups, positions etc., but also to reserve the absolute right to say “No” to any particular employee in a non-excluded position who applies for an exit package if the employer’s concludes that the employee’s departure is not in the employer’s best interests.

So this year, the 50th Anniversary of the ADEA, I encourage you to think beyond whether a voluntary retirement program is lawful. I ask you to think about the message it sends.

It is not only a legal issue. It is also a cultural one. What message do you want to send to workers with the experience you need to compete?

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

Think You Don’t Have a Boys’ Club?

I am pleased to share my latest post to Entrepreneur.

We read a lot about “boys’ clubs.” They are power circles of men, mostly white, who control, formally or informally, organizations or silos within them.

The gender demographics of the senior leadership team may be relevant but is not dispositive as to whether a boys’ club exists. I have seen organizations with senior leadership teams lacking in gender diversity that are not, in my opinion, run by a boys’ clubs. Conversely, I have seen organizations where the numbers at the top look good in terms of gender diversity but a core boys’ clubs calls the shots.

So, how do you know if you have a boys’ club? Of course, there is no test. So, I have created one. Warning from this lawyer — write your answers on a piece of paper and then throw it away. Don’t want your self-evaluation to be used against you in litigation by a plaintiffs’ lawyer.

Now, as for each of the five questions:

1. If you generally agree, answer A
2. If you are not sure, answer B
3. If you generally disagree, answer C

1. We don’t have a boys’club.

Almost everyone knows that boys’ clubs exist. But many believe that they exist only at the employer next store. Certitude is a good thing. But, on this issue, a little doubt is a good thing. Indeed, if you are sure that you don’t have a boys’ club, you probably do. So give yourself:

– 2 points for A
– 0 points for B and C

2. We don’t need a system for raises or promotions.Merit will prevail.

Often the gender gap at the top is because women don’t have the opportunities they need to get there. Absence of meaningful opportunities also contributes to the gender pay gap. No one system works for all. But “no system” never works.

No system often leads to what the EEOC calls “people like me” bias. Those in charge of opportunities give them to those just like them — often other men. So some vehicle to measure equal access to opportunity is essential. Merit will prevail but only if there is equal access to opportunity. Time to score it:

– 2 points for A
– 1 points for B
– 0 points for C

3. More than a few informal meetings are held in bars.

Social inclusion is a form of business inclusion. Information is shared, strategies are developed and relationships formed and/or cemented. Of course, many men don’t relish business in bars. And, there are women who do. Bu the local watering hole is often the club house for the boys’ club. The same is true of the golf course. Let’s score it:

– 2 points for A
– 0 points for B and C

4. The pay gap is due to employer practices and employee choices.

There is no doubt that there is a gender pay gap. Those who doubt it sound as credible as men who deny the existence of labor pains because they never have experienced them. But the gender gap is not due solely to employer practices. If you step out of the game to be the primary caregiver, when you step back in, you will make less. And, women are still more likely than men to be primary caregivers. As for points, the pattern you may have predicted no longer holds.

– Subtract 1 point if you picked A (you have thought about the issue.)
– No points for B or C, but if you picked C, you may see bias in certain cases where it does not exist.

5. Women mentoring women is essential to shutting down the club.

No. And here’s why. There are fewer women at the top so women mentoring women will deprive women disproportionately of access to the top. The burden of gender equality cannot be put entirely on women (particularly since men and women alike benefit from gender equality). The benefits to cross-gender matching are significant in terms of what each gender can impart and learn.

– 2 points for A
– 0 points for B
– Subtract one point if you picked C (again, you have thought about this issue).

Now, add up all of your points, subtracting points where you have earned them.

If you have five points or more, you may have a boys’ club in your organization but don’t see it. If you have fewer than 5 points, you still may have a boys’ club somewhere in your organization, but you are primed to help dismantle it.

Managing People: What Do You Do When An Employee Loses a Loved One?

I am pleased to share my latest article posted to the Philadelphia Business Journal.

We all know that employees do not leave their personal selves at the workplace door. The experiences we have outside of work inform who we are at work.

That is why we spend so much effort – or we should – on helping develop a culture that makes it easier for employees to manage work and life. But, there is one part of life that is often left out: death.

That brings me to Option B by Facebook COO and author of Lean In, Sheryl Sandberg, and her friend and psychologist, Adam Grant, a Professor at the University of Pennsylvania and author of Originals. A fantastic collaboration, Option B is based on Sheryl’s loss of her husband, Dave, and her painful but inspirational journey forward.

Option A is the employee’s life with the loved one. Option B is surviving without him or her.

While the focus of the book is emotional resilience, the book is also a clarion call for leaders (and other colleagues) to be more supportive when an employee loses a loved one. The platitude, as Sandberg apyly calls it, “sorry for your loss,” is not enough.

Here are eight (8) recommendations for business leaders (and other colleagues) to consider that are based on the book (as well as my own experiences and observations.)

1. Bereavement Leave 

Many companies provide a few days of paid bereavement leave. That may be enough for some, but it won’t for all. It was not for Sandberg. Consider offering more unpaid time, where feasible. Of course, if PTO is available, be flexible in allowing the employee to use it.

2. Talking with Employee

For some, it is easier to give grieving employees time off than it is to speak with them. Sandberg wrote about employees avoiding her so that she felt “isolated.” And, we are talking about one of the most successful and powerful leaders in America.

Sandberg states that people were afraid bringing up the subject would remind her of Dave. When I heard Sandberg speak, she said “you cannot remind me of Dave.” His absence is never absent.

Don’t avoid the person or the topic—unless you receive a signal to do just that (discussed below).

Talk with the employee. But what do you say? Or, not say?

3. Please Avoid

Be careful not to say things that you may intend to be comforting but may come off as dismissive or designed to make you feel better:

  • “He is in a better place.” No he’s not.
  • “With time, you will feel better.” That may be true, but bromides like this are not helpful at the time.
  • “I know how you feel.” It’s not about you.
  • “Everything happens for a reason.” And, there is a reason I want to get away from you.

 

4. Offer to Help But 

Easier to know what not to say than it is to be clear on what to say. Well-intentioned people often say “how can I help?”

But, as Sandberg explains, this well-meaning gesture shifts the burden to the grieving person to find a way for the colleague to help them. No bad intent, but a bad result.

Don’t ask generally “how can I help.” Instead, ask “can I do X?” Or, just do it.

Pick up a task for the employee to get rid of a loose end. Do something kind, like buying them a cup of coffee. Do something specific!

5. And, Getting More Direct 

So, now we have dealt with doing. It’s time to get to feelings.

Should you ask how the person is feeling? How should you ask?

As an initial matter, don’t ask if you don’t want to hear. Ask only if you sincerely care.

Avoid “how are you” and ask instead “how are you today.” Why?

Sandberg: “I described how a casual greeting like “How are you” hurt because it didn’t acknowledge that anything out of the ordinary had happened. I pointed that out that if people instead asked “How are you today?” It showed that they were aware that I was struggling to get through each day.”

6. Should You Relate? 

Sometimes, in the act of caring, we share our own loss to let the person know we have a sense how the person may feel. But, we remember, we all grieve differently.

It is okay to share a loss and mention that you may have an idea of how the person feels. But don’t pivot to your loss. Not the time for person to take care of you or for you to work through your own grief.

This is delicate balancing act. I try to say: “I don’t know how you feel but I lost my dad and it was and is very hard for me. I am available to talk if you want to talk about the loss of your dad/mom.”

7. Be Careful How You Care

I know: caring can create legal risks. If an employee tells you they are depressed, and you later terminate them for poor performance, they could argue that you terminated them because you perceived them as mentally disabled.

But there is a real risk not caring, too. Employees who at their emotional nadir remember who helped them when they are emotionally stronger. If they don’t feel they were cared for when they needed it most, they may leave your organization.

Sandberg: “Providing support is both the compassionate and the wise thing to do.” The support engenders “a more loyal and productive workforce.”

Further, you can mitigate the legal risk but listening more than talking. That’s a good idea independent of the law.

Also, avoid clinical labels, such as “depressed” in talking with or about the employee. Again, this is good ideas independent of the law: you are a colleague; you are not the employee’s therapist.

So care. Just do so carefully.

8. Give the Employee What They Need

Not always obvious, it is not about making you feel good about helping. It is about trying to make the unbearable a little less so for your colleague.

And it’s not about the golden rule: Sandberg:

“Growing up, I was told to follow the golden rule … instead of following the golden rule, we should follow the platinum rule: Treat others as they want to be treated.”

Some employees may want to talk. Other employees may want to keep things private. Respect their wishes, either way.

There are a lot of ways as colleagues we can help with Option B. Thank you Sheryl Sandberg and Adam Grant for talking about the Elephant in the Living Room.

 

4 Essentials to Mitigate Fallout From a Pay-Gap Analysis

I am pleased to share my latest post to Entrepreneur.

People can debate the extent of the gender pay gap, but no one credibly can argue that it doesn’t exist. Some degree of gap might be due to factors outside of an employer’s control, such as time a worker takes off to serve as primary caregiver. Other factors, though, may be due to systemic or implicit (unconscious) bias.

The gender pay gap does more than expose an employer to legal risk. Closing the gap is a talent imperative, too. Individuals who are paid less for no clear reason usually know it. If they don’t leave your company, they’ll be less engaged during their continued employment.

Not surprisingly, more employers are conducting self-assessments to determine the presence and extent of pay gaps. If not done properly, however, these self-assessments could result in exactly what you hope to avoid: litigation.

Here are four critical steps to help you mitigate the risk that your attempt to do the right thing will result in a plaintiff’s lawyer on your doorstep.

1. Conduct initial analysis under privilege.

I wish an employer’s self-analysis was not discoverable in litigation. But my wish is just that — a wish.

The courts generally have held that self-analysis of this type is discoverable. Therefore, an employer’s analysis won’t be protected from discovery even as leadership tries to determine whether a gap can (or cannot) be explained by seniority, performance or some other legitimate factor.

Employers are well-advised to collect data at counsel’s request and then analyze the information jointly with counsel under the attorney-client privilege. If structured properly, the data still will remain discoverable, but the analysis itself won’t be.

2. Look beyond gender. 

Don’t limit your analysis to gender. Your evaluation also must address potential bias in compensation based on race, ethnicity and other groups protected by federal, state or local law.

Imagine having to answer this question in a deposition: “Why did you focus only on gender bias and not racial or other kinds of bias?” There’s no good response.

As you learn more about root causes of any gaps, don’t limit yourself to possible legal wrongs. Employees sometimes are underpaid because they had a bad manager who suppressed salaries. Take steps to correct these types of inequities, too.

3. Prepare a discoverable-business document.

While it’s generally recommended to conduct analysis under privilege, you shouldn’t stop there. If you do, you’ll be faced with two rotten options in the event of litigation and this inevitable question: “Why did you make (or why didn’t you make) a change?”

  • You could respond, “Privileged.” Think about your own reaction when a character in a movie takes the Fifth Amendment. Assert “privilege,” and a jury will assume you’re hiding something.
  • You could waive your privilege. But how far does that waiver go? I have no choice but to answer with an annoying lawyerism: It depends. Judges have wide latitude in this area, so you could be waiving the privilege with respect to the entire subject matter — that is, the entire self-evaluation.

 

Prepare a discoverable-business document. It should summarize your “salary-parity analysis” (not a “gender pay-gap analysis”).

4. Make fixes without admissions. 

If a pay gap exists with good reason — such as location, experience or others noted previously — no fix is necessary. Still, you should document your reasons for concluding the gap is justified.

On the other hand, you should adjust compensation where no strong justification can be made for an existing gap. Unfortunately, it’s rare to know whether that gap is due to an impermissible factor. Why speculate or concede such? Plus, if you do a robust pay-parity analysis, you’re sure to make some changes even where no legal exposure exists.

Rather than asserting, “This may be gender bias,” you might state something like this instead: “The employee is underpaid within our range for the position when we look at experience, performance etc., so we are going to correct that.” Fix the problem, but be thoughtful how you do it.

The Model Minority Myth and Asian American Heritage Month

I am pleased to share my latest post to The SHRM Blog.

It is Asian American Heritage Month. As we celebrate the many contributions of Asian Americans, let’s also bury the “model minority myth.” The myth hurts Asian Americans and here’s why:

    1. If you are a model minority, you are not likely to get the help that you very well may need.  When we assume all individuals in a group are stellar, the individuals who need support are less likely to get it.
    2. If you are a model minority, then there is an implication that you may be stronger than others.  This can result in bias against individuals who are white or members of other minority groups who, in fact, are stronger when it comes to a particular job opportunity.
    3. With the model minority myth may come higher expectations.  Being good is not good enough.  We expect more:  why isn’t this person as successful “as they should be?”  This may result in bias against Asian Americans because of the inflated expectations.
    4. When individuals talk about Asian Americans as the model minority, there can be a tendency to focus on math and science.  This may hurt Asian Americans when they apply for jobs that require strong interpersonal skills such as HR.  That is, the myth may create silos for Asian Americans.

 

Let’s acknowledge how much better our world is because of the contributions of Asian Americans without stereotyping about them in a way that sounds benign but is anything but.

This Blog should not be construed as legal advice or as pertaining to specific factual circumstances.

How Are You Honoring Holocaust Remembrance Day Today?

Every year, I write a blog for SHRM on Holocaust Remembrance. Below, is this year’s post.

Today, April 24, 2017, is Holocaust Remembrance Day (Yom HaShoah) .

During the Holocaust, more than 11 million human beings were systemically murdered. Plus, millions more died in battle. That includes our brave military forces that sacrificed their lives to save the lives of others.

Of course, every life is a universe. Every loss of innocent life matters equally.

But, the Holocaust had a disproportionate effect on the Jewish community. Six out of nine million European Jews were murdered—the percentage is staggering.

I acknowledge this is personal to me. Most of my family was killed in the Holocaust and that forever informs my worldview.

Those who were saved also informs my worldview. My cousin’s mom was saved by a Catholic Church at great risk to those who were part of its community.

YomHaShoah is a painful reminder for many of us and that pain does not remain at home. HR can help.

One way to do so is simply to post on your Intranet a remembrance statement. You can find words and images all over the Internet.

This is also an ideal topic for a diversity and inclusion program. We can focus on the Holocaust but conclude with a universal message: We cannot tolerate intolerance against any faith, race, ethnicity, etc.

Invite a survivor to speak. Bear witness to someone who did.

There are many ways that HR can remember. I respectfully request that you find a way to do something.

I close by citing Elie Wiesel:

“For the dead and the living, we must bear witness. Not only are we responsible for the memories of the dead, we are responsible for what we do with those memories.”

10 Costly Mistakes Business Leaders Make on Twitter

I am pleased to share my latest Entrepreneur article on mistakes business leaders making regarding the use of Twitter.

My profession affords me the opportunity to work and talk with many entrepreneurs and other leaders about social media. Just as important, I observe their use (or nonuse) of social media.

Twitter remains one of the most popular platforms for people to exchange ideas, promote news and express opinions. I’m a social media enthusiast, but my work in employment law makes me all too aware of the risks inherent in these instant-post tools.

My Top 10 list of costliest mistakes might surprise you. Its entries stem as much from underuse as from misuse.

1. Not using Twitter.
Some entrepreneurs and business leaders still believe social media is a waste of time. Respectfully, they are wrong. This means of communication no longer is cutting-edge. It’s mainstream, and Twitter is firmly at its center. Use it to your advantage.

2. Only sharing.
Some leaders have exuberant spirits. They freely share ideas and thoughts. While sharing is wonderful, it’s only part of the equation. Social media is about connecting, not simply spouting or increasing your profile. Every leader should keep this in mind at all times.

3. Retweeting without reading.
Other people retweet articles or posts seemingly without reading the full content. In these circumstances, a user’s comment might not match the source material. Retweeting without understanding the context can be disingenuous. If there’s bias or offensive conduct in the underlying tweet, this practice also can be dangerous.

4. Following only like-minded individuals.
Talk about diversity often centers on gender, race and other groups (or classes) protected by law. But there’s another crucial aspect to consider. Cognitive diversity offers a different perspective or opinion.

Interacting with only like-minded individuals limits your vantage point. Following those with whom you often disagree will expose you to different views and possibilities.

5. Interacting intermittently.
At the risk of overstating it, you need to be a player. There’s so much social media activity that if you put a toe in the water only occasionally, you aren’t likely to make vital connections. You don’t need to tweet every day, but tweeting once a week isn’t enough to keep up your profile.

6. Attacking others.
From time to time, you’ll see something that produces a strong, negative reaction. It is best not to use social media as a way to attack others. There are polite ways to disagree. Just as in interpersonal matters, sometimes the best response is none at all. Why give more light to an idea you believe belongs in the dark?

7. Responding every time you’re attacked.
Anyone on social media who takes a stand has been attacked. If you counter-punch everyone who is critical of your stance, others might see you as thin-skinned. Pick your battles wisely so you aren’t labeled an insecure snowflake. Strength can come from silence as surely as it can from powerful words.

8. Failing to be transparent.
Federal Trade Commission rules require individuals to disclose when they are promoting products or services with which they are identified. For example, if you’re praising an item your employer manufactures, you must provide this disclaimer. Transparency, though, is much more than a question of satisfying FTC regulations. It’s good business.

9. Not separating the personal from the professional.
All business is personal and all politics are local, as the sayings go. In these hyperpartisan times, you’d be hard-pressed to find someone without at least one or two deeply held beliefs.

If you tweet on political issues or other topics that might be seen as controversial, you’d be well-advised to make it clear your views are yours alone — not those of your employer. It’s easy enough to include that distinction as part of your Twitter profile. Here’s an added caveat: Do not include the name of your employer or company. That only solidifies the precise connection you’re trying to avoid.

10. Tweeting only business-related items.
Social media is a pervasive form of mass communication, and you should be thoughtful about what you tweet. But if you spend all your mental energy trying to please everyone, you won’t really connect with anyone.

As you develop your brand, consider sharing your thoughts or posting articles on issues beyond your business focus. In my personal life, I’m very involved in animal rescue, I love Bruce Springsteen, and I’m mad about “Mad Men.” Expressing myself has led to meeting many kindred spirits — some of whom now are clients, too.

10 Keys to Grassroots Advocacy for HR Professionals

I am pleased to share my latest article posted in the SHRM HR Magazine.

Federal grassroots advocacy for HR is just as important as ever in 2017. The issues may change, but the need to support and represent the profession surely won’t. Plus, as former Speaker of the House Tip O’Neill famously said, “All politics is local.”

For example, many ruby red states over the past two elections have raised minimum wages materially by way of the ballot box.

And let’s not forget municipalities. Expect the growing trend of local regulation to increase when it comes to matters such as “ban-the-box” ordinances, mandatory sick pay and predictable schedules.

Regardless of their political leanings, HR professionals must continue to be involved so that their voice is heard on workplace public-policy issues. Here are 10 suggestions to make grassroots advocacy more effective without annoying employers.

1. Follow proposed legislation. First, track bills at the federal, state and local level.

Be careful not to focus only on developments in the states in which you operate. To the contrary, be mindful of developments in other jurisdictions, particularly neighboring ones. Legislation spreads.

2. Evaluate bills critically. Avoid knee-jerk responses. Make sure you read the language of a bill before jumping to conclusions.

In evaluating proposed legislation, focus not only on the intent but also on the foreseeable consequences. Many a bill with laudable intent may produce adverse consequences for the employees it is designed to protect.

3. Know your representatives. The first time you need help should not be the first time you meet your representatives, either at the federal or state level. Get to know them and their staffs before issues arise.

Staff members are key gatekeepers for elected representatives. Treat them with respect—not only because they deserve it but also because if you don’t, you will not get access to their bosses.

4. Educate your elected officials. Advocacy is all about relationships, including with your representatives.

Meredith Nethercutt, senior associate for member advocacy at the Society for Human Resource Management (SHRM), explains it well: “There are only a handful of federal members of Congress who have any kind of background in human resources. That is why sharing your personal stories and testimonials as HR professionals with those elected to represent you in office is so critical. After all, if you don’t speak up to those who are crafting and voting on workplace legislation on behalf of your organization and employees, no one else will do it for you.”

5. Get others involved. Usually, it is not enough for HR professionals to advocate on HR issues. It is important to get others to make the case for you, too.

Consider educating members of your C-suite on why a proposed bill might be helpful or hurtful to HR. See if they want to join in the advocacy efforts.

6. Consider legal issues. Do not forget that whatever you say to a representative is discoverable in a trial. This includes communication that occurs via letter, e-mail and social media as well as verbally.

I think of a letter I once saw that said something to the effect of “There is no way we could comply with this bill if it became law.”

In the hands of a plaintiff’s lawyer, a statement like that could be dynamite.

7. Assess personal dynamics. SHRM needs and appreciates the volunteer work of those engaged in HR advocacy, but you should check with a member of your executive team before getting involved. There may be reasons your employer does not want you to oppose a bill, even though the effects on HR could be negative.

For example, it is possible that the sponsor of the bill is also supporting legislation that would be helpful to the company’s business interests. The last thing you want to hear from your boss is that you have alienated the legislation’s sponsor.

8. Consider the impact on the workforce. When communicating with representatives, remember that what you say could find its way back to the workforce.

Sometimes proposed bills and regulations can cause you to become incredibly frustrated. Feeling aggravated is one thing; saying something that devalues your employees is another.

For example, in opposing the overtime rule, an employer might have been frustrated by the regulation but shouldn’t have said something like, “Our employees will just have to deal with it if we hire more workers to avoid unnecessary overtime.”

Be thoughtful in how you oppose suggested legislation that, on its face, would appear to benefit employees. Focus on the unintended adverse consequences that might apply to the workforce.

[SHRM resource: SHRM Policy Action Center]

9. Be practical. Pick your battles. There may be political reasons not to oppose a bill—if there is virtually unanimous support for it, for example.

Conversely, do not inadvertently give publicity to a bill that is going nowhere.

10. Engage in business meetings. Have a business focus in your meetings with your representatives or their staffs.

Acknowledge the pros and cons of the bill at issue to establish your credibility. Then explain clearly your position and ask for support.

Be prepared with bullet points, be sensitive to the representative’s time, be ready to shorten your pitch, and always be respectful and ethical. Last but not least, make sure to thank the representative for his or her time and always follow up with an e-mail reiterating your gratitude for the meeting and your key points.

“Remember, the crux of your engagement, and of these ongoing interactions with elected officials, is to build solid relationships,” says Mike Aitken, SHRM’s vice president of government affairs.

“While you may differ in perspective and opinion on various issues with your lawmakers, your ability to serve as a trusted and reliable resource to those in public office will be invaluable—now and in the busy months ahead.”

Kindness

I am pleased to share my latest post to The SHRM Blog on the need for kindness in leadership.

I like to read and re-read blogs on leadership. They are helpful reminders on what I need to keep doing (or not doing) and where there are opportunities for personal growth. Although expressed from different perspectives, the articles often cover the same attributes or competencies that we rightfully expect from good leaders.

I am struck by how often we need to be reminded to listen. Sound too basic? If you are preparing your response when someone is talking, you are you fully listening? The answer is NO, and I have to remind myself of this on a regular basis.

And, of course, we are reminded that we need to express our recognition. But, too much attention is paid to recognizing concrete accomplishments and not enough to existential recognition: acknowledging someone exists by saying hello or non-verbally recognizing their presence.

I am glad to see more articles/blogs focus on caring. If you don’t care for your employees, they won’t care for you. So, some of our caring, if we are honest, in self-serving. .

But absent from the blogs that I have read is one attribute that feels endangered in our fast-moving, highly-polarized and sometimes cruel world: kindness. By kindness, I mean warm and gentle thoughtfulness with no expectation of a return on investment.

A casual smile. Picking up coffee for a colleague. Pulling back when you know someone needs space. Leaning in when you sense someone needs to talk. Asking someone if they are feeling better. Looking the person in the eyes with attention and not agitation.

We all have heard the expression “random acts of kindness.” That we need to be reminded to do them randomly speaks to their deficit in the ordinary course.

Being kind to people means more than caring about their concerns or appreciating their contribution. It means truly recognizing the humanity of a colleague without thinking about how what you do may benefit you.

As leaders, we need to do more than perform random acts of kindness. Kindness needs to be in our DNA. That does not mean being weak. And, it does not mean avoiding hard decisions. One of the best HR people with whom I have the pleasure to work was thanked after she terminated someone. The terminated employee thanked her for her kindness.

The antithesis of kindness is bullying. When I see bullies, I see weak snowflakes – those who can feel good about themselves only when they make others feel less than them.

When I see kindness, I usually see strength, someone strong and secure enough that they can risk being and being seen as more gentle. And that leads to the ultimate question: are you strong enough to be kinder?

Women’s History Month and the Need for More Male Allies

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

This month, we focus on the contributions women have made, including in medicine, law, business, and literature.

But we must do more than recognize these contributions. We must acknowledge that, at least in the business world, the talent women offer is grossly under-utilized and painfully undervalued.

Late last year, a study on gender and leadership conducted jointly by LeanIn.Org and McKinsey & Co. was published. According to the study, women account for only 19% of the C-suite executives (based on responses from 132 companies).

The numbers are even more distressing if one focuses narrowly on Fortune 500 companies. The percentage of female CEOs dropped in 2016 to only 4-percent. Yes, 4% (even though women are approximately 50% of workforce).

Needless to say, women are grossly underrepresented at the top. And, that hurts women more directly but men too, because companies indisputably do better when there is gender (and other) diversity at the top.

On the same day as the study was released, the Wall Street Journal published an article written by Facebook COO Sheryl Sandberg “Women Are Leaning In—but They Face Pushback.” As almost everyone knows, Sandberg wrote (3 years ago) the ground-breaking book, Lean In: Women, Work and the Will to Lead.

When Sandberg wrote Lean In, she acknowledged the obstacles women who want to lead face. She chose to focus more heavily on how women can navigate these obstacles.

In her WSJ article, Sandberg focuses on the wall women hit when they lean in (a meme for “go for it if you want it.”) Citing the McKinsey/LeanIn study, Sandberg states: “women who negotiate are 67% more likely than women who don’t [negotiate] to receive feedback that their personal style is “intimidating,” “too aggressive,” or “bossy,” and they are more likely to receive that kind of feedback than men who negotiate.”

This is consistent with what Sandberg wrote in Lean In:

  • “She is very ambitious is not a compliment in our culture.”
    • “Men are continually applauded for being ambitious and powerful and successful, but women who display these same traits often pay a social penalty.”
      • “When a man is successful, he is liked by both men and women.  When a woman is successful, people of both genders like her less.”
        • “But since women are expected to be concerned with others, when they advocate for themselves or point to their own value, both men and women react unfavorably.”

 

Sandberg’s article is a clarion call for companies to do more. In this blog, I want to narrow the focus: men must do more. And, women’s history month is a great time for men to kick into action.

Too often the burden of eradicating gender bias is left to women. This is wrong in so many ways.

Women and men alike are hurt by gender bias. Why should women alone tackle the problem?

Mentoring and sponsoring is essential, yet, in many organizations, the responsibility as it relates to women is placed almost solely on women. This investment in others diverts women in or near leadership from their own goals. Why should women bear this responsibility alone?

Also, men have a perspective that is needed to tackle the problem. Gender diversity is a “plus” and that includes in tackling gender bias.

We need more male allies. Of course, that means at looking at systemic issues. For example, men need to acknowledge the gender pay gap and work to close it. Denying the gap is as credible as denying labor pains.

But, guys, you can’t do that in one day. But there are a lot of things you can do every day “in the moment.” Here are but a few examples:

  • Continue to call out successes by men who work for and/or with you.  But make sure you do the same for women and with the same enthusiasm.  If you are aware that unconsciously this may not be your proclivity, you can consciously overcome the bias.
  • If you begin to think that a woman is too assertive, pushy, bossy (get the picture?), focus on what she is doing and then ask yourself:  how would I react if Jim rather than Jane were engaging in this behavior?  Again, with conscious awareness of the potential unconscious double standard, you can overcome it.
  • Use your voice to speak loud and often about the business benefits of gender diversity.  Yes, it is a moral issue, but money talks so talk money.
  • Speak up when you hear assertive women called “bitch” or worse.  To ignore is to condone.  There is no such thing as a passive bystander if you are a leader.
  • Engage in cross-gender sponsorship and mentorship.  Where men hold disproportionate power, this is necessary for women with potential to have access to power. Plus, you will learn as much as you impart. Don’t wait for a formal program. Time is of the essence.

 

Women’s history month is about men, too. It is an opportunity for men to commit to do more to increase equality, and with that, the profitability of their organizations.

Pal, will you make this commitment?

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

 

 

The Oscars Tragedy and You

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

I watched in anticipation Sunday night as the of the best movie of the year was about to be revealed. l was pulling for Fences or Lion so I knew they would not win.

And, then Bonnie and Clyde, also known as Faye Dunaway and Warren Beatty, announced the movie of the year. Beatty looked confused, knowing something was wrong. He showed the card to Dunaway, who blurted out La La Land.

The winning team went on stage and happily accepted the award. But there was background noise. And, soon, the reason became clear.

Not all was la la in La La Land. A mistake had been made. The real winner was announced: Moonlight.

Now, we are not dealing with an amateur production. We are dealing with the Academy Awards. And, a big mistake was made on the biggest award on the biggest night in Hollywood.

What happened:

1. The Academy immediately corrected the mistake.
2. The La La Land team graciously announced the Moonlight winners.
3. The Moonlight winners graciously talked about sharing the stage with the La La Team

Our work lives are not choreographed like the Academy awards. We must respond “in the moment” without cue cards or rehearsals.

And, yes, we make mistakes, too. Most importantly, that includes those who work with us but, in their eyes, for us.

Some delighted in the Academy’s mistake. I delighted in the honesty and grace by which it was handled.

You might want to think about that the next time an employee makes a good faith mistake. Their mistake is a test of your grace.

A (Slow) Right Turn for the NLRB

(By James R. Redeker via HREOnline.com)

Employers now have an expectation that corrections will be made to bring sanity and predictability back to the National Labor Relations Board after eight years under the Obama administration. But change will take time (click to continue reading).

Getting To NO in the New Year and Shark Tank!

I am pleased to share my latest article posted to TalentCulture.

We all know we need to say NO at times. Otherwise, every YES that should be a NO risks resulting in a NO that should be a YES down the road. But saying NO can be incredibly hard.

Saying yes all of the time, is not simply people pleasing, although that is a piece of it. It is also the fear of a lost opportunity, and all that could flow from it.

So before discussing some suggestions on how to say NO, let me tell you the 3 biggest mistakes I see:

1. Non-Responsiveness

Of course, you cannot respond to every e-mail or phone call with someone trolling for business. But what if you have a business relationship with someone and that includes an internal colleague.

Not responding, repeatedly, may feel like existential bullying. “You don’t even recognize that I exist.”

It may be even worse if there is selective non-responsiveness. It may be seen as cowardice or arrogance. I am uncomfortable responding so I won’t, or I will respond when I want.

Too busy to respond? Perhaps you need to think a little more about relationships and not just tasks.

2. Short Response: NO

Many of us have heard the expression, NO is a complete sentence. But whether it is an effective sentence is a different story.

Do you have to tell someone why? No.

Do you want to build or maintain a relationship? Then the “why” is important.

3. Too Much Detail

As bad as just saying NO is to explain all the reasons why is also bad.

I can’t because (followed by every possible reason).

Three problems with this:

First, it takes too long to read or listen.

Second, it may come off as whiny.

Third, it may invite negotiations. “Isn’t what I have asked you to do more important than….?”

So how do you say NO?

I was thinking about this as I watched Shark Tank. Pay attention to how you feel when each shark says NO.

Mr. Wonderful can be anything but. At times, his NOs are just plain mean.

Sometimes he attacks the idea. Other times, he attacks the person.

No negative consequences for him because the objects of his attacks leave the shark tank and connect no more.

But what if you want or need to work with someone after the NO? More lessons from Shark Tank follow.

While the other sharks are good at saying NO, particularly Robert Herjavec, none is as good as Lori Grenier, in my opinion. So, after many episodes, I have broken down what I call the Grenier approach to saying NO.

1. Acknowledges the Value/Need

Lori always, or almost always, says something positive about the proposal initially.

Let’s go outside the tank. Try this: Appreciate what you are doing and/or asking.

A few kind words never hurt. Kindness is under-valued.

2. Explains why it does not work for her

Lori does not attack the person or the product.

She explains why it won’t work for her.

Outside the shark tank, consider:

– I appreciate your need but we don’t have the money in the budget.
– I like your idea but I don’t have the time with other commitments.

3. Wishes the person luck

After saying she is out, Lori invariably wishes the person luck. Yes, you can be tough and kind!

Sometimes wishing the person luck works outside the shark tank, too. “I cannot participate but wish you luck with X.”

Sometimes you will need to go further if it is an internal colleague: “I cannot do this now but I would love to help when I can.”

Making NO Comfortable for You to Say

You need to say NO. But you need to do so in a way that does not antagonize or worse.

You want to say NO that conveys respect. Watch Lori Grenier on Shark Tank to hone your skills.

I appreciate your reading this short blog.

I have other commitments so I must stop.

But I wish you luck in saying NO to tasks in way that says YES to the relationship.

Love, Lust, and Valentine’s Day

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

There were times when I cautioned HR to keep a firewall between Valentine’s Day and the workplace. The reason for the caution is the initial purpose of Valentine’s Day.

We all know that the initial purpose of Valentine’s Day was for individuals to express their love to those whom they love in a non-platonic way. I was tempted to say romantic, but I once had a manager deny there was any romantic relationship because “it was only sex.”

Over time, however, the meaning of Valentine’s Day has changed. Just look at cards to parents, grandparents, kids, etc. There is no sexual message.

Many employees acknowledge the day too by simply saying “have a nice Valentine’s Day.” I don’t think they mean: “I want you here and now.”

And, some managers will bring in Valentine’s candy or other treats. I don’t think they have any predatory motive.

So, I am not sure it is reasonable to say Valentine’s Day has no place in the workplace. Does that not make an employer seem excessively restrictive? And that may have an unintended effect of undermining critical restrictions.

But here are 8 guard rails to consider as we approach Valentine’s Day:

  1. Okay to say Happy Valentine’s Day. I would avoid happy V.D.
  2. Better to say Happy Valentine’s Day to a group than an individual. You don’t want anyone to feel singled out.
  3. Be thoughtful not only on what you say but also how you say it. An accompanying wink can make earnings disappear in a blink.
  4. Managers should be more careful if, when and how. Perhaps respond only but don’t initiate.
  5. Managers should never send a card, e-mail or social media message to a subordinate over whom they have direct or indirect authority. Most certainly the card should not include an audio of I Honestly Love You.
  6. Never ask anyone who their Valentine is or whether they have one, unless you want to be a defendant.
  7. Any food you might bring in can be shared without fanfare. Don’t need to say anything. The food will speak for itself.
  8. Remember, not everyone has a “Valentine” in the traditional sense. While not having an intimate partner is not a “protected group,” such individuals are human beings who matter. Be thoughtful on how such individuals may feel when we share what is a common bond to most but not all.

The business world is becoming painfully competitive. Sometimes businesses get lost in defining and crowing about their cultures without genuinely caring for people who compose it.

No, HR does not need to coddle employees, but we need to help bring back some of the warmth in our workplaces that has been replaced by an increase in harassing behaviors, bullying and political infighting.

That we need to be careful on Valentine’s Day not to send intended to unintended romantic messages does not mean that our workplaces would not benefit if our words and actions manifested the love we feel in our hearts.

If you share metaphorically a little love in your heart:
And the work world will be a better place
And the work world will be a better place
For you and me
You just wait and see

3 Ways Entrepreneurs Can Protect Employees From Trump’s Immigration Executive Order

I am pleased to share my latest post to Entrepreneur.

On Friday, President Trump issued an executive order that:

  1. Suspends entry of all refugees to the United States for 120 days;
  2. Bars Syrian refugees indefinitely; and
  3. Blocks entry into the United States for 90 days for citizens of seven predominantly Muslim countries. The countries are: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

 

Four federal judges have blocked implementation of at least parts of the Executive Order. Even so, it appears the Administration will continue to enforce the Executive Order.

This is not a political but a business blog, so I will not focus on the issue of refugees, but focus solely on what the Executive Order means for employers relative to employees who have green cards or other foreign nationals who are lawfully working for them.

On Sunday, the White House Chief of Staff Reince Priebus said the Executive Order is not intended to apply to green card holders. Even so, it is not clear that this is the President’s position. Nor does it appear consistent with ongoing enforcement actions. Even if the Executive Order does not apply to green card holders, there are other foreign nationals lawfully working in the United States on temporary visas. Among the issues for employers to consider are the following three:

1. You can’t be certain employees who travel will be allowed to return.

Employers should not require (or even permit) employees with green cards or other visas from the seven designated countries to engage in business travel outside of the United States. If an employer requires or permits work-related travel outside of the United States as part of their jobs, at least two bad things may happen.

First, on a strictly business level, these employees may not be allowed to return to provide service to their employers. On a more personal level, these employees may be separated from their families and other loved ones. Caring for employees must go beyond work.

2. Educate affected employees about the risk of personal travel.

Employers cannot prohibit personal travel and you wouldn’t want to anyway. Indeed, a foreign national from one of the seven nations may have the legal right under the Family and Medical Leave Act to return to Iran to care for a parent with a serious health condition.

However, employers should consider talking about the risk of traveling outside the United States for those who hail from the seven countries covered by the Executive Order. But employers need to be careful how this is done. Even if well intended, a “rounding up” of employees from these seven countries to discuss the issue can lead only to greater anxiety and more. Plus, employees not from the seven countries may care about the issue, too.

Consider a communication to all employees. Analogy: if there is a new child care benefit, you would not announce it only to those known to have children.

3. Do you take a position?

We often have heard it said there are two topics we should try to avoid: politics and religion. Well, they are now the elephants in the corporate living room, and I am not sure employers can or should entirely avoid them.

A number of large technology employers have condemned the Executive Order. What should you do? Regardless of your politics or presidential vote, this Executive Order may negatively affect you as an employer. It already has increased anxiety among foreign nationals from the seven-targeted majority-Muslim countries.

At a very minimum, leaders are well advised to make clear that they will do what they reasonably can to protect their employees. An example of this may be, not putting employees at risk by sending them out of the country until this issue is resolved. Do not expect a quick resolution.

Some employers may want to go further and express their personal views. In doing so, employers are best to focus on the Executive Order and not the President who signed. it. Said otherwise, focus on the business issue. Some may conclude silence on the “political” issue is best. Fair enough. But sometimes the sounds of silence echo the loudest.

 

 

What Trump’s Immigration Executive Order Means for Employers

I am pleased to share my  latest article posted to Philadelphia Business Journal.

Last Friday, President Trump issued an executive order that:

  1. Suspends entry of all refugees to the United States for 120 days;
  2. Bars Syrian refugees indefinitely; and
  3. Blocks entry into the United States for 90 days for citizens of seven predominantly Muslim countries. The countries are: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

 

Four federal judges have blocked implementation of at least parts of the executive order.

Even so, it appears the Trump Administration will continue to back the order, causing questions to arise for employers and what it means for their employees who have green cards or other foreign nationals who are lawfully working for them.

Does the executive order cover individuals with green cards or other foreign nationals with the right to work in the United States?

The answer to this question is unclear. Members of the new administration have said it does not apply to those who hold green cards. But these statements are not law. Plus, even if the executive order does not apply to those with green cards, what about those who hold other visas to work in the United States? Until there is greater certainty, employers should assume the executive order may apply to all employees who are citizens of those seven-designated countries.

Should employers make clear that foreign nationals from the 7-designated countries do not have to travel?

Yes – employers should not require employees who are citizens from those seven affected countries to engage in business travel for them outside of the United States. Why not? We don’t know if they will be able to get back in! Such employees should be assured the absence of such travel will not have adverse impact on their employment status.

What if an employee who is a citizen of one of the seven impacted countries wants to engage in international business travel notwithstanding the executive order?

In these cases, employers may be tempted to say no to protect their employees from the unknown. But the courts have generally rejected “paternalism” as a defense to discrimination and this could be deemed discrimination based on national origin.

In these cases, employers should explain the personal risks the employee is voluntarily undertaking and ask him or her to acknowledge same in writing.

Can employers prohibit personal travel to their homelands by foreign nationals from the 7-designated countries?

This probably is overreaching and could be discriminatory. Is relying on an executive order the scope of which is unclear a valid defense to a national origin discrimination claim? I don’t know the answer and would not want any client to be the test case.

However, employers can and should communicate the risks of personal travel for some. At the same time, we don’t want employees from these countries to feel targeted. The reality is that many already do. So make sure the communication goes to all employees; also, employees not directly affected by the executive order care about their colleagues, too.

What will happen next?

I have no idea. I do know the situation if fluid, and that employers need to communicate with their employees. The level of fear and anxiety that can be found on social media does not remain there. It is in your workplaces, too

This is not legal advice pertaining to specific factual situations.

Mary Tyler Moore and Single Women

I am pleased to share my post to the SHRM blog regarding the legacy of Mary Tyler Moore.

A lot has been written about the passing of Mary Tyler Moore. Perhaps we did not know at the time how ground breaking the Mary Tyler Moore show was. In retrospect, it is clear to us.

There are so many episodes that dealt with gender equality, including when Mary was paid less because she was a woman and denied opportunities because she was not a man. With a wonderful combination of strength and humor, she leaned in….and prevailed.

But there was something else about Mary Richards that is getting less attention: the fact that she was single. No, it was not because of a death or divorce but rather a choice.

I have spoken with many single women about workplace issues. A blog on this issue was slated for later this year but the timing unfortunately feels right now.

Single woman have shared with me:

1. They have been asked why they never married. Are married women (or men) asked why they choose to marry? The often unspoken assumption: it was a result, not a choice.

2. They sometimes feel excluded from discussion on managing work and life. While many single people have children, many others don’t. Our respect for life outside of work cannot be restricted to those of either gender who are married with children.

3. They at times feel marginalized when invitations to employer events include spouses, partners or significant others. I know some men who feel the same way. Why not just “adult guest?”

Yes, some state laws prohibit discrimination based on marital status. And, I don’t believe many women (or men) are denied jobs or opportunities because of their single status.

In fact, sometimes they may be given extra work, particularly if they don’t have children. The conscious thought process or implicit assumption: they don’t need to go home.

The dialogue about intimate relations has become refreshingly more inclusive. Yet, we sometimes fails to recognize those who are not in them.

Do single men face the same issues? I am not sure.

I think single men are often seen as having made that choice. Well, this is a choice more and more women are making, too.

So when we remember Mary Richards, we can remember her “spunk.” Lou Grant, I love spunk!

And, we should remember what a pioneer she was for women generally. But I suspect she holds a special place for single women everywhere.

In our workplaces, let’s continue to challenge ourselves to be more inclusive. It’s the least we owe Mary!

IT and HR Must Work Together to Improve Security

I am pleased to share my latest article for SHRM regarding the role of HR in cyber security.

Cyber security is a significant concern for businesses, and it is only going to get bigger.

In 2016, many companies of all sizes were affected by cyber attacks from outsiders.

But some cyber security breaches are inside jobs. Sometimes they are deliberate. Other times, the breach is due to human error. Either way, these attacks can have disastrous effects.

The National Cyber Security Alliance, a Washington, D.C.-based think tank, reports that a data breach can shutter a small business. And a survey by Russian cybersecurity company Kaspersky Lab, 2016 Corporate IT Security Risks, stated that the average amount of damage caused by one attack may cost small and medium businesses up to $99,000.

The practice of cybersecurity carries with it legal and reputational implications. So the question becomes: Who owns these responsibilities?

However, I bristle at the notion that a single function “owns” an issue because then employees in other functions may believe by negative implication that they do not need to do anything. In this case, while IT plays a central role, ownership of cybersecurity must go beyond IT and include HR, among other departments.

Let’s divide HR’s role into five categories.

HR as the Problem 

Sometimes in HR we feel like we are the policy or procedure police. Well, sometimes we are the culprit, too. As you well know, HR has access to highly sensitive information, including employees’ Social Security numbers and some medical information. HR needs to evaluate whether the background check procedure for those seeking positions in the HR department is robust enough. In some organizations, criminal record and credit checks are done for some employees in finance and IT but not for employees in HR. HR needs to consider this gap.

HR Policies

HR may want to consider including in the employee handbook or other policies a summary, developed with IT, of do’s and don’ts relative to cyber security. This is not in lieu of but in addition to mandatory employee training. 
Here is but one example: Employees must report immediately the loss of any device, including a mobile phone, that contains their employer’s confidential information. Immediate reporting and rapid wiping can mitigate the risk materially. 

HR and Employee Training

As noted, employee training is essential. IT can develop the training program, but HR plays a key role, too. For example, HR can listen to the proposed program and make sure it works for the intended audience. Simply telling employees not to fall for phishing schemes is meaningless unless you define phishing and give concrete examples.

HR and a Rapid Response Plan 

In the event there is evidence that someone is appropriating confidential information, HR needs to be prepared to work with IT in questioning the employee and taking corrective action as appropriate. These are not IT investigations alone. IT should not be expected to have the expertise necessary to handle employee rights issues in the context of these investigations.

HR and a Business Continuity Plan 

If there is a cyber attack or an internal breach, whether deliberate or as the result of carelessness, the company is going to need to move quickly in response. How will the organization work if its systems are shut down? When must employees be paid if they cannot work? Legally, what notification requirements exist if certain employee information (or that of patients or customers) has been exposed? As with any other crisis, whether it be a weather disaster, an incident of violence or a pandemic, the role of HR in the business continuity plan cannot be underestimated.

 

Swinging for Singles

I am pleased to share my latest post to the SHRM blog on setting realistic goals in the new year.

As we start the New Year, many of us have made resolutions for personal growth in the professional space. After a few days off and the excitement of the promise of a new beginning, many of us set bodacious goals for ourselves. When we do so, we set ourselves up for failure.

To be clear, I am not talking about business goals. We need to stretch ourselves and often are stretched by the business needs beyond our own stretching. I am talking about how we handle ourselves in reaching those goals. That’s the kind of personal growth about which I write.

Many opportunities for growth are our strengths taken to the extreme. For example, we are driven but sometimes lack the patience with others who don’t drive at the same speed. This may leave them feeling less than so they deliver less than we expect of them.

The bodacious goal is to become as copacetic as the colleague who is deeply driven but also has breathtaking patience. You may not be wired that way. I for sure am not.

The more realistic goal is to try to be more patient (not patient) and think of specific situations where it is attainable. Not sure of what they are? Ask a trusted colleague. Or, think of times when you did not get the response you had hoped for and ask: what was my role?

When I was a little guy, I loved playing baseball. I had a great eye but was not very strong. So, I swung for singles and did rather well. When I swung for the home run, I missed every time. Actually, the same is true for doubles.

In life, I try to swing for singles. And, that includes in personal growth. I think if we are realistic and gentle with ourselves, we are more lucky to be successful and gentle with others.

So happy New Year and may the year be full of singles. And, if you miss the ball, keep swinging. If you improve by “only” 30%, you are batting 300. Not bad, huh?

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

 

The Problem with Saying Women Are Better At…

I am pleased to share my recent post to Philadelphia Business Journal.

A recent study at Harvard T.H.Chan School of Public Health concluded that hospitalized patients treated by female physicians show lower mortality and readmission rates.

This study is getting a lot of media attention, and in many cases, the conclusions drawn go beyond the findings of the study.

Take, for example, the NPR headline: “Patients treated by Female Doctors Fare Better Than Those Treated By Men.” NPR is but one example. Here’s one more.

On a national TV program, the question was asked: who makes better doctors, women or men? Citing the report, the on-air talent said “women.”

But it is not just about doctors. The internet is replete with articles that report on studies that ask if or conclude that women are better leaders than men.

I understand why the Harvard study is vitally important. Women still face very real bias in medicine (actually, everywhere), and we need to increase our focus on the contributions of women that are often under-appreciated and profoundly unrecognized to combat that bias (including pay to which I will return).

But would we ever ask: who makes better doctors, white people or people of color? Hispanics or African Americans?

Of course not! But why is it okay with gender? Well, it’s not.

It’s no more okay than the surveys that ask would you rather work for a male or female boss? In some cases, the majority answer “men.”

Would we ever ask if you want to work for a person who is white or a person of color? The question indulges in bigotry and so does the question on gender. If someone want to choose the gender of their boss, let them start their own business and work for themselves.

We need to sell the benefits that go with diversity to increase support for smashing conscious bias and bringing to conscious awareness implicit bias. Stated otherwise, if we want to cream the crop, and who doesn’t, we need to harness the talent women bring to the table and not nearly enough is done to do just that.

But we need to be careful not to stereotype in our efforts to eradicate bias and increase inclusion. There is no such thing as “benign” stereotyping and here’s why.

First, the stereotyping creates higher expectations for its intended beneficiaries. It is not enough for women to be competent doctors, leaders, etc. No, they must reach our inflated expectations.

Let me give you an example. Let’s assume that the average male is a “5” on a scale of “1” to “9” in terms of core competencies. If we assume women are stronger, we may expect a “7.”

Now, we interview a woman who is a “6” and a man who is a “5.” She is the stronger candidate but he may appear better because he meets our expectations and she does not meet our inflated expectations.

Second, the stereotyping may result in discrimination against men of talent. This is both a talent and a legal issue. Under the law, gender bias knows no gender.

Finally, by focusing on gender, we don’t get at the root cause of what makes someone more effective. Our focus should be on competencies.

For example, in both leadership and medicine, strong communication skills are critical. That explains, in part, the results of the Harvard study.
So our focus should be on the communication and other skills that have resulted in women outperforming men. And, then we should make sure that, when we, hire, evaluate, promote and pay, we consider those key skills.

When we focus on competencies, as we should, it very well may mean that more women than men will thrive but we are recognizing a core skill and not unwittingly engaging in gender bias. In medicine, the failure to understand the difference literally can have life and death consequences.

Lost in the headlines beyond which many do not go is another key finding. The story within the story is that, while the women performed better than men in this study, they still made materially less money.

The gender pay gap is alive and well in medicine and virtually every aspect of corporate America. Of course, there are legal reasons to address it.

But the business imperative is just as great. Imagine if those gifted doctors who are women leave the profession out of frustration for being paid less, even where they not just meet but exceed the performance of their male peers? That, too, is a life and death issue, literally.

10 Ways to Celebrate the Holidays and Minimize Legal Risk

I am pleased to post my most recent blog on 10 ways to maximize inclusion and minimize the risk of the holidays: https://www.entrepreneur.com

The rapidly-approaching holiday season can be the most wonderful time of the year, but it also poses legal and employee relations challenges to entrepreneurs of all sizes. But most of these challenges can be mitigated with some thoughtful planning. So here’s a checklist of issues to minimize the risk that your December celebrations will result in January claims.

1. Don’t eliminate Christmas.
Don’t eliminate Christmas from the holiday season, says this Jewish guy. It’s a beautiful holiday that should be celebrated. And a Christmas tree is just fine, too. But what about those who don’t celebrate Christmas? Read on.

2. Include other holidays.
General rule for the holiday season: it’s about inclusion, not exclusion. Rather than excluding Christmas, recognize other holidays, such as Hanukkah and Kwanza. Consider a menorah and Kwanza basket along with the Christmas tree.

3. What holiday did you forget?
You don’t know what you don’t know. Profound. So, ask. Ask employees if there is a holiday that they would like to see included in the celebration (and that includes decorations).

4. What should you call your party?
“Holiday party” is the most inclusive term. Make your party more inclusive by having decorations and the music reflect diverse holidays.

Think also about your choice of decorations and songs. Those that are religious are more appropriate for religious celebrations (or for religious employers).

What if someone is offended by Bruce Springsteen’s “Santa Claus is Coming to Town”? May that be your biggest problem.

5. Should you serve alcohol?
Never serve it to minors. Make clear adults who get it for them will be fired. As for adults, take steps to minimize abuse, such as limiting drinks, providing lots of food or even making employees pay for alcohol and then donating the money to charity.

Even with restrictions, assume some people will abuse the alcohol you serve. Consider having cab vouchers ready for them without management knowing who the users are. This increases the likelihood that those who need vouchers will use them.

6. What about harassment?
December parties inevitably bring January claims about wandering hands, loose lips and… I’ll stop there. Remember, Jack Daniels is no defense.

This year, the EEOC has called out that alcohol is a risk factor when it comes to harassment, so focus proactively on this risk. Remind your employees that your harassment policy applies to the party. And make sure to name “designated watchers.”

Finally, if you are in management and you see or hear unacceptable comments or conduct, you must intervene. To see and ignore is to condone and increases your legal exposure.

7. What about the after-party?
To be blunt: no good comes from after-parties. Unless, you consider claims arising out of the after-party good. Make clear you are not sponsoring any after-party and do not allow employer money to be used for it. And never attend if you are in management. Attending is about as safe as walking on railroad tracks

8. How about gifts?
Here, too, anticipate the inappropriate. Remind employees that your harassment policy applies here, also. Stay away from the sexual or suggestive, such as gifts from Victoria’s Secret. Rule of thumb: if the gift is appropriate primarily for someone with whom you are intimate, don’t give it to an employee.

9. What about greetings?
It’s best to be general with your holiday greetings unless you know otherwise. The default should be “Happy Holidays.” But if you know someone is Christian, by all means wish that person a Merry Christmas. I know I do.

And I like when people wish me a “Happy Hanukkah” because they know I am Jewish. I am less thrilled if they are making assumptions. Make sure your employees don’t guess or assume anyone’s faith. Stereotypical assumptions here can cause myriad problems, including with customers.

10. Don’t forget the FLSA.
The Fair Labor Standards Act applies all year long, even during the holidays. So, don’t require or strongly suggest that employees attend parties outside of working hours. If you do, you may have to pay them to be miserable. Plus, if people don’t want to come, do you really want their misery there?

With all the difficulties that can accompany the holidays in the workplace, it’s a time to remember how lucky we are to be alive, and to love and to be loved. May peace be with you. Shalom.

Finale of Holiday Tale by Jewish Guy Who Wears a Chai

I am pleased to share my latest post to The SHRM Blog regarding HR and the holidays.

You are an exhausted HR professional charged with making the holidays lively without inviting lawsuits. On the day of your company’s holiday party, you walk into the lobby of your building and see the elegant Christmas pine that you had helped decorate. As you behold it in its twinkling glory, a co-worker says, “That tree is inappropriate in the workplace.”

The co-worker is wrong. It is beautiful; Christmas can and should be acknowledged—so says the Jewish guy who wears his grandmother’s chai. By the way, Chai is a Hebrew letter that means “life,” and I proudly wear my grandmother’s pendant (and my grandfather’s ring).

There’s no reason to remove symbols of Christmas from holiday decorations. But recognize other holidays, too. A Hanukkah menorah and a Kwanzaa harvest basket would be nice additions.

By the way, size does matter. Imagine the message of five life-sized reindeer next to a Kwanza basket the size of a soup bowl.
Your encounter in the lobby, however, is just the beginning of a day of seasonal challenges.

In the elevator, you hear employees complaining about the holiday party. “I don’t want to go, but I feel like I have to,” one says. You take out a lawfully-prescribed pill. You filled the prescription after the last holiday party.

Of course, you would love to say, “Please, if you don’t want to go, by all means, don’t. Your present to me would be the absence of your presence.” It’s OK to think it, but please don’t say it (unless you are retiring at the end of the year). If you are planning on retiring: go for it (and tell me about it!).

In fact, unless the holiday party is scheduled during working hours, be careful not to require, or even strongly encourage, employees to attend—or else you may ring in the New Year with a wage and hour claim. Yes, Virginia, there is a chance an employee may claim the party is work.

Another person in the elevator is upset that the gathering is not called a Christmas party, while still another says that, as an atheist, she objects that there is any party at all. Oy vey, you think. Okay, perhaps I am projecting my thoughts and words on to you. But you get the idea.

Usually, it’s best to call your shindig a holiday party or seasonal celebration to maximize inclusion, but it is more than OK to mention the various holidays celebrated, including Christmas. In fact, please do. Inclusion does not mean eliminating anything that is not universally shared. It is the opposite!

As the elevator door opens to your floor, you see a large menorah with lit candles. Your receptionist thought it would add meaning to the season.

First, address the fire hazard by blowing out the candles (but don’t make a wish). Second, make it clear that employees cannot put up whatever decorations they want, wherever they want.

Reasonable guardrails can be established. There is a big difference between an employee’s office or work station and a public area, for example.

Two people are waiting for you in your office. One is dismayed that a co-worker gave him a thong as a holiday gift. The other is unhappy that there are no decorations recognizing the Buddhist holiday of Bodhi Day.

To prevent the first headache, let workers know that gifts must be appropriate. Tell them that excludes anything sexual, or otherwise inconsistent, with your equal employment opportunity (EEO) policy.

Consider also how you will deal with gifts of alcohol. What if you prohibit its possession on your premises?

Now, here comes my keen legal prowess: Send an e-mail to employees that reads, “If you receive alcohol as a gift, do not open or consume it at work, and please take it home the day you get it.”

As for decorations, invite people to make suggestions before you put them up. You can maximize spiritual inclusion if you involve employees in the process.

Okay, it’s “party time.” You run so quickly to the bar that you don’t even realize that you have knocked over two colleagues in your zest to get there.

Be careful. Control the amount of alcohol you choose to provide, as well as how much you yourself imbibe.

We know from the EEOC that alcohol is a risk factor relative to harassment. We also know that it poses serious safety risks relative to driving.

Ensure that you serve plenty of nonalcoholic beverages and food, too. Egg rolls are a must (inside joke).

Provide vouchers for cab rides home. Flag aggressively, etc.

Another way to minimize legal risk and help those in need: Consider charging for drinks and donating all of the money to a charity (and matching the amount collected). You want the charity to appeal to all or nearly all.

Here’s my chance to raise my personal passion: give to your local animal welfare rescue. And, consider adopting a four-legged friend, in particular, an older cat or dog (unless you have too much unconditional love in your life).

Following a chat with your CEO at the party, you notice two employees dancing suggestively. There is also a love train of employees, in which everyone puts their hands in the pockets of the person in front of them. Well, they intend the pockets but I am not sure that is where there hands end up. I won’t go any further, at least not here.

Because of situations like these, every year around this time there is a bonanza for plaintiffs’ lawyers: “Were you groped at your holiday party? Witness employees grinding on the dance floor? Call 1-800-IRETIRE.”

To minimize the likelihood that workers will have cause to contact one of these lawyers, remind employees that your EEO policy applies to social events and respond quickly and firmly to inappropriate behavior. Reminder, if you are in HR, there is no such thing as being a passive bystander if you see or hear inappropriate conduct or comments. To ignore is to condone.

And pay attention to the music, too. If music will be played, focus on what it will be.

At the risk of showing my age, Rod Stewart’s “Do Ya Think I’m Sexy?” would not be my first choice. There is no good answer to Rod’s question!

Snoop Dogg’s “Sensual Seduction” isn’t much better. The problem with this title? Both words.

But somewhere between Snoop Dogg and Barry Manilow is an appropriate middle ground. May I suggest Adele?

And don’t worry about playing Springsteen’s “Santa Claus Is Coming to Town.” But that’s about as religious as you probably should get.
You hear discussions about an unofficial after-party. You know it is safer to swim in a lava pit than to attend an after-party. So you run to your office.

You read through the holiday cards on your desk. Many are blank because no one knows what to say. If you say “Happy Holidays,” are you declaring war on Christmas? If you say “Merry Christmas,” are you disrespecting your Muslim colleagues?

A generic “Season’s Greetings” works best. But if you know the faith of the recipient, it is more than OK to customize. I always wish my Christian friends “Merry Christmas.” And I like it when people wish me “Happy Hanukkah” if they know I am Jewish. I am less happy if they do so because they think I look Jewish.

Yes, there are risks everywhere you turn. But these risks can be managed with thoughtful planning.

So, HR, let’s do what we do best: think and then balance. And now, I shall try to do the same.

If you celebrate Christmas, Hanukkah or Kwanzaa, I wish you a peaceful and meaningful holiday that corresponds with your faith. If you observe another holiday now, I apologize for not referencing it by name, but I give you my good wishes just the same, as I do for those who recognize no holidays or who celebrate at another time of year.

May peace be with all!

And, please, be good to each other.

17 Tips for Anti-Harassment Training

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

The recent release of the Equal Employment Opportunity Commission (EEOC) report on sexual harassment shouldn’t be cause for a collective yawn. Rather, the report contains the seeds for great ideas to fight harassment of all stripes, including that based on race, gender, national origin and religion.

EEOC Chair Jenny Yang first announced the creation of a Select Task Force on the Study of Harassment in the Workplace early last year, and her message then was simple: We have made a lot of progress, but the problem persists.

Fast-forward to June, which was the 30th anniversary of the Supreme Court’s recognition that sexual harassment is a form of sex discrimination. After more than a year of study, including numerous public hearings, EEOC commissioners Chai Feldblum and Victoria Lipnic issued their report.

One key aspect of the study is the importance of training supervisors and management. Let’s focus on the following 17 tips for upgrading your training that are based not only on specific recommendations from EEOC commissioners but also on my own advice. (Note: While I served on the task force, I speak for neither the EEOC nor the task force.)

1. Ensure that the training is interactive and facilitated by a qualified trainer. If your employees are passive participants, the training will not achieve its full potential. Ideally, the training should be live. If that is not feasible for cost reasons or because employees are geographically dispersed, you can consider an online alternative, but it should have an interactive component.

2. Confirm that support comes from the highest levels. Without the endorsement of senior leaders, the training likely will be seen as a mere “check-the-box” exercise. Executives should attend the event and ideally provide opening or closing comments. Leaders must make it clear that everyone will be held accountable for complying with the requirements covered in the training.

3. Clarify that the training should be taken seriously. The purpose of this exercise is not simply to sensitize supervisors; it is to help them keep their jobs. Make it clear that the employer, like the courts, holds supervisors to a higher standard than other employees.

4. Emphasize the business risks of engaging in or tolerating harassing behaviors. Such risks include lost productivity, lower employee retention and the employer’s tarnished reputation. Simply put, harassment is bad for business.

5. Provide specific examples of unacceptable behaviors as opposed to making general statements. Examples must be customized so that they resonate in your workplace. Canned training is a waste of everyone’s time.

6. Focus on risk factors that increase the likelihood that harassment will be tolerated. These include a homogenous workforce and workers who are dependent on customers’ tips and may be afraid to speak up. Supervisor training must focus on how these risk factors may increase the potential for harassment so that managers can address problems before they occur.

7. Emphasize what is unacceptable vs. what is illegal. Employers don’t want to suggest that behavior is unlawful when it might not be. For example, in most cases, one comment is not actionable. You also don’t want to imply that unacceptable behavior is OK simply because it is not significant or pervasive enough to violate the law.

8. Describe both severe and subtle examples of harassment. If employers don’t include the less obvious examples, supervisors may define harassing behavior too narrowly. On the other hand, if blatant behaviors are excluded, managers may fail to address what they cannot imagine anyone doing even when it does indeed take place.

9. Address unlawful harassment in all its forms. Harassment can be based on a person’s race, ethnicity or religion. And don’t forget that gender-based harassment, even if it is not sexual in nature, is also against the law.

10. Provide supervisors with guidance on how to respond in the moment. If supervisors aren’t taught what to say from the very moment an employee reports harassment to them, they may say something unwise such as, “That doesn’t sound like Mark.” Make it simple: Supervisors should say, “Thank you for bringing your concerns to my attention. We take them very seriously.”

11. Emphasize that supervisors cannot promise absolute confidentiality. Managers should report all complaints to HR as a matter of course. However, if they aren’t informed of this step in advance, and they agree to an employee’s request to keep a complaint confidential, then they cannot tell anyone, despite the legal and business risks that go with having notice and doing nothing.

12. Train supervisors to respond proactively to unacceptable conduct. Managers who see, hear or otherwise become aware of harassing behavior should follow up, even in the absence of a complaint. To be silent is to condone. This is why the EEOC recommends that so-called bystander training be incorporated into supervisory education efforts. This type of training is based on the premise that witnesses or others who become aware of harassing behavior (bystanders) play a key role in stamping out harassment.

13. Emphasize nonretaliation. Fear of retaliation is the primary reason employees do not raise concerns when they should. Employers must define retaliation as broadly as the law in terms of who is protected (not just complainants) and what is prohibited (not just discipline and discharge). Examples of other prohibited retaliatory actions include changing the amount of work given to employees, shifting the nature of assigned tasks and excluding workers from key meetings. Emphasize that retaliation of any kind against a person who reports or witnesses harassment will be met with immediate and proportionate corrective action.

14. Provide civility training. Even though rude or uncivil behavior is not unlawful unless it relates to a protected group, incivility is the gateway to harassing behavior. Therefore, the EEOC recommends that employers conduct civility training. True, civility training can create problems with the National Labor Relations Board. But for supervisors who are not covered under the National Labor Relations Act (NLRA), such training can be infused not only into anti-harassment training but also performance management training without risk of violating the NLRA, if structured properly.

15. Use humor carefully. Appropriate humor can sometimes ease tension so that participants are more open to the training, but it is very important not to minimize the seriousness of the issue. In my experience, humor is best used to poke fun at those who defend inappropriate behavior: “He really thought that if he called her at home off the clock to share his lustful feelings for her, it was not harassment. Perhaps he should be fired for both harassment and stupidity.”

16. Evaluate and re-evaluate. Elicit specific feedback about what resonated with employees and what they want to know more about. Discuss which behaviors do not qualify as harassment, such as a nondiscriminatory but tough management style.

17. Convey that the solution is not to avoid those who are different from us. Trying to avoid harassment claims by avoiding certain groups of employees altogether may constitute unlawful discrimination. Provide specific examples on how supervisors can engage in mentoring and promote social inclusion within a diverse workforce.

Sheryl Sandberg, Lean In 2.0 and Corporate Gender Bias

I am pleased to share my latest article from Entrepreneur.

It is now more than three years since Sheryl Sandberg, COO of Facebook, wrote her ground-breaking book, Lean In: Women, Work and the Will to Lead. “Lean In,” I believe, is shorthand for “Go for it, if you want it.”

In her book, Sandberg acknowledges that there are many systemic obstacles to the advancement of women in corporate America. However, her focus is what women can do to maximize their chance of success in spite of these obstacles.

Well, more and more women are leaning in. That includes applying for leadership positions and/or negotiating for more equitable compensation.

There is some good news.

Women who lean in do better than women who don’t. However, women who lean in are also facing substantial resistance.

Late last month, Sheryl Sandberg wrote an article for the Wall Street Journal entitled: “Women Are Leaning In — But They Face Push Back.” In what could be called “Lean In 2.0,” Sandberg focuses primarily on the systemic obstacles and not on what women can do to overcome or navigate around them.

Sandberg’s article came out on the same day as a study conducted jointly by LeanIn.Org and McKinsey & Co. Among the findings: we are still more than 100 years away from there being gender equality in C-suite positions. Further, men are 30 percent more likely than women to be promoted into a management position.

This is bad news for women (and men). It is beyond dispute that businesses do not reach their full potential if there is not gender diversity among those holding leadership positions.

The ‘too aggressive’ penalty.

One of the reasons for the absence of acceptable progress in terms of gender equality is what Sandberg calls the “too aggressive penalty.” Citing the McKinsey/Lean In study, Sandberg states in the WSJ article, “women who negotiate are 67 percent more likely than women who don’t to receive feedback that their personal style is ‘intimidating,’ ‘too aggressive,’ or ‘bossy,’ and they are more likely to receive that kind of feedback than men who negotiate.”

Don’t negotiate and don’t advance. Negotiate and wear the Scarlett B coded in other terms. This is the classic double standard, and it is indefensible.

So what do we do to shatter the double standard that provides a coat of cement for the glass ceiling? Six suggestions (for starters):

1. Acknowledge the problem.

We cannot solve the problem unless those who have power to correct it acknowledge that it exists. And, too many still deny the problem. I have never experienced labor pains. But I would be a fool to deny their existence.

So share data with your leaders, for example, the McKinsey/Lean In Study. Consider sharing other academic studies framed in business terms that identify the scope of the problem. The Harvard Business Review and Catalyst.org are great resources, to name but two.

2. Don’t attack or admit bias.

Don’t attack your leaders. That will do nothing more than make them shut down, if not worse. Plus, it may be used later as an admission of organizational bias. Instead, try something like, “we know this problem exists in the business world, and we would be a bit naïve, if not arrogant, to assume we are immune from the problem.”

3. Focus training on unconscious bias.

As Sandberg and others acknowledge, some of the bias is undeniably unconscious. Focusing on the unconscious in training gives leaders a “safe” way to change. “I was not aware.” Well, now you are. Message to leaders: with conscious awareness, unconscious bias can and must be avoided.

4. Eradicating gender bias cannot be over-emphasized.

When emphasizing the need for change, talk about the business imperative: bias is bad business. Do not call the training sensitivity training. Most leaders view that as soft fluff. This is business training to maximize profitability. The message would be the same if there were no men in leadership; make that clear!

5. Show leaders how to address unconscious bias.

Leaders may not realize that their feelings are due to unconscious bias but they should be consciously aware of their emotional reactions (or they shouldn’t be leaders). When they find themselves feeling someone is too aggressive, pushy, bossy or strident (I could go on), encourage them (in their heads) to move from labels to specifics behaviors and then ask themselves the million-dollar question: do I laud this precise behavior when engaged in by a white man?

6. Hold leaders accountable.

Training leaders is just a start. We need to hold them accountable. If there is conscious bias or unconscious bias (usually evidenced by a pattern), leaders must pay a price. However, this should be done in a way where you correct the wrong but don’t create an admission of bias. This is easy to say but deceptively complex to implement. But it can be done with reasonable legal risk and substantial business upside if thoughtfully implemented.

Let me end by quoting Sandberg from Lean In: “‘She is very ambitious’ is not a compliment in our culture.” It’s on all of us to change that for our collective benefit.

 

Sheryl Sandberg and the Need for More Male Allies

I am pleased to share with you my latest post to The SHRM Blog.

Last month, a study on gender and leadership conducted jointly by LeanIn.Org and McKinsey & Co. was published. Accordingly to the study, women account for only 19 percent of the C-suite executives (based on responses from 132 companies).

The numbers are even more distressing if one focuses narrowly on Fortune 500 companies. The percentage of female CEOs dropped in 2016 to only four percent. Yes, four percent.

Needless to say, women are grossly underrepresented at the top. And, that hurts women more directly but men too, because companies indisputably do better when there is gender (and other) diversity at the top.

On the same day as the study was released, the Wall Street Journal published an article written by Facebook COO Sheryl Sandberg “Women Are Leaning In—but They Face Pushback.” As almost everyone knows, Sandberg wrote (3 years ago) the ground-breaking book, Lean In: Women, Work and the Will to Lead.

When Sandberg wrote Lean In, she acknowledged the obstacles women who want to lead face. She chose to focus more heavily on how women can navigate these obstacles.

In her Wall Street Journal article, Sandberg focuses on the wall women hit when they lean in (a meme for “go for it if you want it.”) Citing the McKinsey/LeanIn study, Sandberg states: “women who negotiate are 67 percent more likely than women who don’t [negotiate] to receive feedback that their personal style is “intimidating,” “too aggressive,” or “bossy,” and they are more likely to receive that kind of feedback than men who negotiate.”

This is consistent with what Sandberg wrote in Lean In:

– “She is very ambitious is not a compliment in our culture.”

– “Men are continually applauded for being ambitious and powerful and successful, but women who display these same traits often pay a social penalty.”

– “When a man is successful, he is liked by both men and women. When a woman is successful, people of both genders like her less.”

– “But since women are expected to be concerned with others, when they advocate for themselves or point to their own value, both men and women react unfavorably.”

Sandberg’s article is a clarion call for companies to do more. In this blog, I want to narrow the focus: men must do more.

Too often the burden of eradicating gender bias is left to women. This is wrong in so many ways.

Women and men alike are hurt by gender bias. Why should women alone tackle the problem?

Mentoring and sponsoring is essential, yet in many organizations the responsibility as it relates to women is placed almost solely on women. This investment in others diverts women in or near leadership from their own goals. Why should women bear this responsibility alone?

Men have a perspective that is needed to tackle the problem. Gender diversity is a “plus” and that includes in tackling gender bias.

We need more male allies. Of course, that means at looking at systemic issues.

But there is a lot men with influence can do “in the moment” on a day to day basis. Here are just a few examples:

– Continue to call out successes by men who work for and/or with you. But make sure you do the same for women and with the same enthusiasm. If you are aware that unconsciously this may not be your proclivity, you can consciously overcome the bias.

– If you begin to think that a woman is too assertive, pushy, bossy (get the picture?), focus on what she is doing and then ask yourself: how would I react if Jim rather than Jane were engaging in this behavior? Again, with conscious awareness of the potential unconscious double standard, you can overcome it.

– Use your voice to speak loud and often about the business benefits of gender diversity. Yes, it is a moral issue, but money talks so talk money.

– Speak up when you hear assertive women called “bitch” or worse. To ignore is to condone. There is no such thing as a passive bystander if you are a leader.

– Engage in cross-gender sponsorship and mentorship. Where men hold disproportionate power, this is necessary for women with potential to have access to power. Plus, you will learn as much as you impart.

Don’t wait for a formal program. Time is of the essence.

Sheryl Sandberg has asked women: what would you do if you were not afraid?

I ask men: how much will you do if you are secure?

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

Columbia University Decision: More Pro-Labor Activism By The National Labor Relations Board

The Board’s decision in Columbia University (364 NLRB No. 90 (August 23, 2016)) demonstrates just how unplugged from reality the current National Labor Relations Board is. Reversing a position first taken by the Board in 1972 and held since, (except for a brief four year period), this Board held in Columbia University that a conglomerate of various kinds of graduate student instructors, fellows, proctors, graders, research assistants (including those on grants funded by outside sources) and course assistants (“graduate assistants”) are statutory employees entitled to the protection s of the National Labor Relations Act, including the right to be represented by a union and engage in collective bargaining.

 
The decision, said the Board, was a necessary interpretation of the language of the statute in light of its policy of encouraging collective bargaining. In doing so, the Board cloaked its agenda to increase membership in unions in the cloth of “statutory policy”. By dismissing the uniqueness of the relationship of graduate assistants to their universities as “not dispositive,” the Board injected concepts intended and developed for factories into the academic arena where the primary purpose for the “work” is to advance the graduate assistant’s personal education and achieve an academic degree as the gateway to becoming “employed.”

 
In the final analysis, the Board’s decision in Columbia University is political and philosophical. It is not driven by the law. It does not even flow naturally from the law, except that this Board, unlike prior Boards, says it does. For the sake of its agenda, this Board has again reversed the nuanced reasoning of nearly fifty years of precedent endorsed by the courts, including the Supreme Court.

 
Nowhere is this more obvious than in that portion of the decision that approves of the bargaining unit sought by the union as “appropriate.” While no university will be advantaged by the balkanization of its graduate assistants, there is very little in common between a research assistant being paid by a grant from an outside source and a course assistant. Yet, universities may be required to bargain a single contract that is relevant to and covers both. But that is not the most unrealistic and destructive part of the unit decision by the Board. That part is capsuled in the question of whether the individuals in one of the disparate classifications of “graduate assistants” will be represented by a union may be decided by the votes of those in another, more populous, classification who have vastly different motivations, issues and working conditions. Research assistants working on and controlled by a grant funded by an outside source may not want to or can be controlled by a union contract negotiated by those whose primary allegiance is to a majority with other interests.

 
The Columbia University decision was wrongly decided and now it is up to the appellate courts. Hopefully, they will re-tether our law to reality and conclude that the agenda of zealots must not be permitted to overturn established and contrary precedent applying the same law to the same facts.

How to Prevent Presidential Debates From Becoming Disruptive Workplace Debates

I am pleased to share my latest article posted to Entrepreneur.com.

We just saw the first Presidential debate. No matter what your view, I think we all can agree it was contentious. The feelings of the campaign in general, and the debates in particular, will undeniably leak into workplaces. What do you do? Or better yet, what don’t you do?

To help guide you, here are eight questions and answers to help handle political workplace discussions.

1. Don’t employees have a First Amendment right to say what they want politically?
No. The First Amendment applies only to restrictions imposed by the government. Private sector employees have no First Amendment rights in the workplace. If you are an entrepreneur, you can prohibit employees from talking politics without worrying about the First Amendment.

There is one exception — keep in mind some state constitutions, such as California, apply (or may apply) to private sector employees. So a ban in California, for example, is asking for trouble.

2. Do employees have any rights to express their political views in the workplace, independent of any constitutional right?
Yes, employees covered by the National Labor Relations Act (NLRA) probably would have the right to share their views, including wearing buttons, if the political statement relates to the terms and conditions of employment.

Let me give you two examples — Vote for Clinton so there is more generous paid parental leave or vote for Trump so that religious rights in the workplace are respected. Keep in mind that supervisors and managers, as defined by the NLRA, are not protected by the NLRA.

3. Can employers discriminate based on message? That is, favor one political view over another?
This may come as a surprise to many but, unlike race, sex or religion, one’s political affiliation is not a protected group under federal law and almost all state laws. There are exceptions, such as in the District of Columbia and under a few other local ordinances.

But just because something may be lawful does not make it right. It would be foolish, even if not illegal, to discriminate based on political view point. Do you really want to alienate a large percentage of your employees and customers?

4. What if what is said in the workplace is discriminatory?
What if someone makes a statement hostile to Mexicans or disparages Evangelical Christians? Employers have more than a right to respond to discriminatory messages in the workplace. They have a legal obligation to do so. Employers can brook bias of no kind — that includes during this election season.

5. Aren’t we better off just banning all political speech, to the extent we can, to avoid disruptions?
No. It’s simply not practical. And, it will get even less so as we approach the election. It also is not desirable. Ban political talk and political opponents will agree on one thing — you, as the employer, have gone too far.

6. Aren’t there reasonable restrictions that you can and/or should impose to minimize disruption and/or risk antagonizing customers?
Yes, you probably could have a rule that anyone who interacts with the public not wear a political button or otherwise convey a political message of any kind. I say “probably” and not “absolutely” because the National Labor Relations Board (NLRB) that interprets the NLRA continues to limit what employer can do. But entrepreneurs need to balance the potential legal risk against the business risk of doing nothing.

7. But what if there are disruptions in the workplace?
Some disruptions are inevitable. You absolutely can respond to the disruptions. You are not paying employees to be as dysfunctional as Congress. But focus on the disruption as opposed to the content of the disruption — unless what is said is discriminatory. There should be both the reality and the appearance of being even handed.

8. Can you as a leader express your own views?
Yes, there is no question that you can share your views. The question is, how and when? Remember, your power is based on your influence, and your influence may be tarnished if you do not temper your political views.

Better to support a candidate than bash the other side. And, at all costs, avoid the “I don’t know how anyone could vote for [fill in the blank].” You are effectively calling those who disagree with you idiots. Not exactly the key to engagement.

Political HR Tale in Wacky World of Election 2016

I am pleased to share my latest post to The SHRM Blog regarding the upcoming election and the workplace.

In less than two months, the Presidential election will take place. You are thinking about that when you see your receptionist wearing a button for her political candidate.

You ask her to remove it because you have customers of diverse political views. She says “NO,” promising to file a case with the Supreme Court because you are violating her First Amendment rights. Note to SCOTUS: we hope you enjoy her as much as we do.

Well, First Amendment restrictions do not apply to private employers. The First Amendment restricts only government action. So you nicely tell your employee either the button goes or she goes. She walks off the job. Note to file: discuss reserve for litigation.

You continue down the hallway and you see two employees wearing buttons for opposing candidates:

-A Clinton supporter’s button talks about need for paid parental leave.

-A Trump supporter’s button talks about religious liberty and Obamacare.

Thinking of the First Amendment, you tell both employees: off with the buttons. And the NLRB responds: off with your heads.

If political buttons relate to terms and conditions of employment, they may be protected under the NLRB. I won’t say anything negative about the NLRB, even though the NLRB seems fond of disparagement as they attack non-disparagement clauses!

You go to your office and you hear two employees fighting over the election. Neither can believe their colleague would consider voting for the other candidate. Time to play referee.

Just focus on the disruptions without regard to the content. The NLRB probably would allow employers to focus on the disruption, if substantial, even if the issues discussed were work-related. I say probably because, as you well know, this NLRB has defined employee rights very broadly and management rights narrowly…

You go back to your office and you close the door. The phone rings: a manager asks if he allows an employee to solicit for one candidate during his working time, does he have to grant equal access to another employee soliciting for the other candidate during her working time?

You reach into your pocket and take a pill. Yes, it was lawfully prescribed after the last holiday party.

Neither federal nor most state or local laws consider political affiliation a protected group. But forget the law: you don’t want to alienate a sizable portion of your workers, customers or business partners.

But allowing solicitation uniformly is not the answer to this question. Your uniform exception to your no-solicitation rule during the employee’s working time now allows employees to solicit uniformly for unions during their working time. Oh what a web the law weaves.

After you talk with the manager, she asks you, as a friend: whom do you favor? You think of changing the topic to something less controversial—your sex life—but the thought is just that.

Temperatures are hot and they will get only hotter. When the election is over, you need to work together. People often feel attacks on candidates as attacks on them.

So, respond only if you have a strong relationship with the person that is beyond merely professional and you are confident you both can survive knowing you may vote differently. Don’t be too confident.

You breathe deeply and begin to relax until you hear an employee making comments about Muslims or Mexicans. This is not a political, but a factual statement. Do you need to pick a side?

Yes, the law. Brook no bias by either side. You must respond proactively to disparaging comments about Muslims, Mexicans, Evangelical Christians, white men or any “protected group.” To ignore is to condone if you are in a position of power.

You call a friend and share what so many of us feel–you cannot wait for the election to be over. Your friend assures that you have the holidays to look forward to—a time for peace and tranquility.

Your friend clearly either is not an HR professional or just plain crazy if she thinks the holidays are the most wonderful time of year at work. Every holiday decoration designed to increase inclusion is deemed a micro-aggression by someone. Stay tuned for more on holiday headaches in December!).

But until then we must survive. And, we will—with a little help from Gloria Gaynor.

Fair Pay and Safe Workplaces Final Rule and Final Guidance to be Published

Yesterday, the FAR Council and the Department of Labor issued final regulations and final guidance implementing Executive Order 13673 – Fair Pay and Safe Workplaces.  The interlocking final regulations and final guidance, with an effective date of October 25, 2016, impose new requirements on federal contractors and subcontractors, including:

◾Contractors, when bidding on new federal contracts valued at more than $500,000, will be required to disclose a three year look-back of all “labor law violations” (involving defined administrative merits determinations, civil judgments, and arbitral awards) arising under 14 different federal statutes and comparable state laws to the contracting officer. The contracting officer, with the assistance of a newly created Agency Labor Compliance Advisors, will review the labor law violations, determine whether the violations are serious, repeated, willful, or pervasive, and based on those determinations, decide whether the contractor is “responsible” enough to be awarded a federal contract.

◾Subcontractors, with subcontracts worth more than $500,000, will be required to make similar three year look-back disclosures of labor law violations to the U.S. Department of Labor for that federal agency to make a determination as to whether the subcontractor’s history of labor law violations are serious, repeated, willful, or pervasive. The prime contractor is then required to making its own decision as to whether its subcontractors are “responsible” based on the Department of Labor’s determinations.

◾Contractors and subcontractors with serious, repeated, willful, or pervasive labor law violations may be required to enter into labor compliance agreements – either before or after contract award – with designated federal agencies to mitigate or remediate histories of non-compliance as a condition to being deemed “responsible” to receive a federal contract or subcontract.

There are also new requirements concerning (1) Paycheck Transparency (what information must be listed on an employee’s or independent contractor’s paycheck); and (2) prohibitions on the use of arbitration to resolve employee claims unless the employee and contractor agree to use arbitration after the employee has a claim (effectively negating many pre-employment or company-wide arbitration agreements and plans).

The regulatory requirements outlined above have varied phase in periods, beginning October 25, 2016 through October 25, 2017. The final regulations and guidance will be published in today’s Federal Register.

To learn more about the regulatory requirements, join us on Oct. 13th, 2016 for our Duane Morris Institute webinar entitled, “Employment Law for Federal Contractors: Game Changers—New Regulations and Executive Orders.”

6 Ways to Lawfully Embrace Social Recruiting

I am pleased to share my latest post to Entrepreneur.

I hear too many lawyers strongly discourage employers from ever looking at an applicant’s social media accounts. Yes, there are legal risks, but those risks can be mitigated.

As important, there can be legal and business risks in not looking at social media during the hiring process. So we’re actually talking about risk management, not risk avoidance.

What are the legal risks if you look at an applicant’s social media profiles, such as on Facebook, Instagram or LinkedIn? By the applicant’s pictures or words, you may learn things about the applicant’s membership in a protect group, such as his or her likely race, religion, disability, age, etc.

Even if you don’t consider doing it, an applicant may unlawfully argue that you did. It’s not easy to prove the negative.

On the other hand, you may find valuable information that lawfully may be considered. In one case, an employer found racist posts by a managerial applicant.

I was glad the company learned of this, or they would have hired the miscreant. Think of the legal and business risks that could have occurred if they had hired him.

Most people are perfect, at most, twice in their life: at birth and in an interview. Reviewing social media accounts can help you determine who the person truly is who you’re considering hiring. Here are six recommendations to minimize the legal risks, and maximize the business rewards of reviewing social media profiles as part of the hiring process.

1. Do not look at social media profiles to screen applicants.
Using social media to screen applicants is using it too early in the process. Generally, it’s unnecessary and risky. It’s unnecessary because you should be focusing on the position’s objective criteria at this point. And it’s risky because an unqualified applicant may claim that she was rejected because you saw she was an older Asian woman, for example.

2. Consider looking at social media at the end of the hiring process.
Review social media only at the end or near the end of the hiring process. Some employers include this step as part of their background check.

The risk is much lower because, after interviewing the applicant, you will already know that the applicant is, as in the prior example, an older Asian woman. Additionally, fewer applicants will have their social media profiles reviewed so it has fewer risks.

But there still is some risk. An individual may post information you otherwise would not learn about in the interview, such as he that he’s gay or on medication for depression.

The risk must be balanced against the value of what you may learn. Another case could be an applicant posting pictures of themselves wearing virtually nothing.

3. Human resources should review social media.
Someone on your HR team – not the hiring manager — should review candidates’ social media account. HR professionals are better equipped to focus on what can and cannot be considered.

You should tell hiring managers that they can’t check social media accounts. If you don’t tell them they can’t, they will assume they can and may do so at the wrong time, or consider factors they shouldn’t.

4. Only review public information.
Never ask an applicant for his or her social media password. It is like asking an applicant for the keys to his or her home.

Approximately 20 state laws prohibit employers from asking for social media passwords. In all states, it can be criminal under federal law.

5. Keep your process consistent.
You don’t need to look at social media profiles for every position in the company. But it’s also dangerous to do so only when you feel like something may be off.

Selective social media reviews can be seen as based on discriminatory factors. Indeed, the gut feeling may be based on implicit bias if the person is different from you – whoever you may be.

So decide before you begin recruiting for a position whether a social media screening will be part of the process and document it. Just don’t do it because of who the person is.

6. Print out any social media posts that you intend to consider.
We all know that individuals may delete or hide posts from the public; therefore, print out anything you find as soon as you see it. Note what disturbs you about it. This preserves the argument, by negative implication what you did not consider, namely, an applicant’s membership in a protected group.

Servant Mentorship

I am pleased to share my latest post to The SHRM Blog.

Almost everyone recognizes how important mentoring is. I don’t know anyone who is successful who did not have at least one good mentor. I know I am grateful for mine.

Similarly, I don’t know any good leaders who don’t mentor to some degree. It is more than a mark of a good leader; the mentoring makes the leader stronger by what he or she learns from the mentee.

Of course, people define mentoring differently. It should be more than showing someone the ropes or sharing inside baseball.

A good mentor should have a vested interest in helping his or her mentee succeed. Yes, I recognize that this definition begins to bleed into sponsorship as many define it.

However, I believe the line between mentorship and sponsorship can be somewhat artificial. In my views, the best mentorships include a sponsorship component. The term I use is “servant mentorship.”

One way that mentors can sponsor mentees is by opening doors for them. “I can’t do this but I think this would be a great opportunity for you.”

In these cases, the mentor feels good about the opportunity that he or she has provided. While this may benefit the mentee too, the mentor is benefiting by having someone safe do what he or she cannot.

Don’t get me wrong. That’s not a bad thing. But it’s not as wonderful as it may make the mentor feel.

For me, the best test as to whether someone is a servant mentor is whether they lean back so their mentee can lean in. That means giving up an opportunity for the mentee so that he or she can grow.

“I can do this, but I think you would be great. If you want it, it’s yours.”

Mentees know the difference. And, I believe, they respond in kind.

Opening a door for someone when you cannot walk in is not “servant mentorship.” Not walking in the door when you can but sending your mentee instead is.

Next month I will be giving my monthly slot to a mentee. Thank you to SHRM for joining me in service mentorship.

The Judge Shapiro I Knew

As I mourn the loss of Judge Shapiro, I remain unsettled by the Inquirer’s obituary. http://www.philly.com/inquirer/obituaries/20160723_U_S__District_Senior_Judge_Norma_Shapiro__87.html. Because the obituary did not do justice to the Judge who fought so hard for justice, I wrote my own blog about her.

The Inquirer article focused heavily on the ‘famous’ prison overcrowding case. The complexities of the case go beyond a short blog. However, one critical point does need to be made.

Judge Shapiro never set a cap on the number of prisoners as the article suggests. Rather, she simply enforced a settlement agreement that had been reached between the City and the plaintiff class.

While active, the case was highly politicized. Inconvenient facts were ignored by those who focused on the political and not the legal.

Sadly, that happened even on the day of the Judge’s death, when former District Attorney Lynne Abraham said disparaging and untrue comments about the Judge and the case. To be blunt: Ms. Abraham’s comments said nothing about the Judge and everything about her.

I am not a mere bystander. I knew Judge Shapiro well because I had the honor to clerk for her in 1985-1986.

The Judge had a brilliant mind and steely work ethic. As important, her dedication to the rule of law was unwavering, even when mercilessly and unjustly attacked.

A trailblazer, Judge Shapiro had to confront gender bias and much of it was not subtle. But she never complained about it and talked about it only in terms of finding solutions.

The Judge did not let gender bias stop her or define her. She simply crushed it.

As most know, the Judge was the first woman to be appointed as a judge in the Third Circuit. She was a first second to none.

So many women understandably speak of the Judge as a role model. I want to say, as a man, she was a role model for me, too. How lucky I was, as a man, for my first mentor to be such a remarkable woman.

Her brilliance and strength were matched only by her kindness and warmth. To her clerks, she remained a lifelong source of wisdom, encouragement and friendship. We were part of her “judicial family.”

But nothing was more important to the Judge than her real family. She was a beloved grandmother, mother, mother-in-law, sister, wife and daughter.

At the Shiva for the Judge, I had the opportunity to hear her family, particularly her grandchildren, talk about the Judge with such love. She played an integral part in each of their lives. She adored them and they her.

Yes, she was an extraordinary judge. But she also was an extraordinary person devoted to her family and friends.

She asked for very little. She gave so generously of herself.

In Hebrew, there is an expression, Eshet Chayil. It mean a “woman of valor.” The Judge was a woman of valor in every aspect of her life.

May her memory be a blessing to those whose lives she touched. It will be for me.

For those who are interested in learning more about the Judge’s extraordinary accomplishment and her perspective on judging and life, I call your attention to an incredible interview with the Judge by one of Philadelphia’s most accomplished and respected attorneys, Roberta Liebenberg: http://www.americanbar.org/content/dam/aba/directories/women_trailblazers/shapiro_interview_1.authcheckdam.pdf

Carlson v. Ailes: #Harassment and #HR

I am pleased to share my latest post to the SHRM blog regarding the sexual harassment lawsuit filed by former Fox Channel Host Gretchen Carlson.

By now, I assume you all have read or at least heard about the sexual harassment lawsuit filed by former Fox Channel Host Gretchen Carlson against Fox CEO Roger Ailes. Since then, at least a half dozen other women have said that they, too, were harassed by Ailes.

When you heard about the allegations, which of the following responses comes closest to your immediate (visceral) reaction:

1. This is but another example of a powerful man abusing his position to engage in vile sexual harassment. We have another serial harasser.

2. Carlson never complained about harassment until her contract was not renewed. This is but another example of someone complaining about harassment after they don’t get what they want.

3. I have no idea. I need to investigate the facts.

If you look at social media or listen to conversations about the case, you will hear a lot of people who “know” it happened or are “certain” it did not. I have not seen or heard too many say, “I have no idea; it needs to be investigated.”

Now, I return to you. If you are like most people, your visceral response was probably 1 or 2. What does that mean?

We hear a lot of talk about implicit bias. Effectively, we are talking about bias of which we may not be aware.

Here, we are talking about a different kind of bias. That is, our initial responses may reflect explicit bias based on our own experiences as employees or as professionals who investigate harassment complaints.

I acknowledge that my emotional response initially was not “3.” Initially, I was suspicious of the allegations based on timing—that would put me in camp #2.

Then, when I heard that there were at least a half dozen other women claiming harassment, my visceral response changed. Carlson spoke out only when she had nothing left to lose and others then spoke out, too. So, that put me in camp #1.

I am grateful that I am aware of my emotional reactions based on my experiences in evaluating harassment cases. If I am aware of my assumptions based on experience (bias), I can consciously avoid them and investigate the facts impartially without such assumptions. That puts me where I belong: camp #3.

Now, I turn to you and ask that you think about your reaction. It very well may reflect your own personal experience in the workplace, as an employee or as an HR professional in receiving and then investigating harassment claims.

It is quite human to learn from and develop assumptions (biases) based on experience. In fact, if our experiences do not inform our instincts, then we have a developmental problem.

But, we need to be careful not to jump to conclusions based on our experiences generally without carefully evaluating the facts of a specific case. Remember, each case is not about the broader societal issue but rather what happened in that particular case.

Think of your visceral reaction (instinct) to this case. That may reflect your bias. Now that you know it, be careful of it when you investigate complaints in your workplace.

Remember, every complainant is someone’s child, parent, partner, sibling or friend.

The same is true of every accused.

Both deserve a prompt, impartial and thorough investigation before conclusions are reached.

 This blog should not be construed as legal advice (or a political opinion).

I Wish

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”.

EEOC Commissioners Feldblum’s and Lipnic’s Clarion Call to Prevent and Stop Harassment

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.

HR: Rise Above the Politics—Focus on the People #Orlando

Below is my latest post for the SHRM blog regarding focusing on people during times of tragedy.

We all are well aware of the tragic massacre in Orlando less than a week ago.

In social media, the print media and public discussions, we hear a lot about:

  • Terrorism
  • Gun control
  • Bias against LGBT community
  • Islamophobia
  • What elected officials did or did not do
  • What political figures said and did not say

 

As a society, we will need, over time, to address these issues, hopefully, in a civil way.

Some politicians, on both sides of the political aisle, are focusing on political issues associated with the massacre, for example:

– This proves why we need more gun control.

– This proves why we must protect the right to bear arms so people can protect themselves.

In HR, we must focus on the people and not the politics.

We must understand the particular pain in the LGBT community but not assume that others do not ache, too. They do.

We must allow dialogue, but cut it off if it becomes incendiary or discriminatory.

We must let our employees know we care by simply listening to them when they share.

We must help our workplaces heal. Now is not a bad time to remind employees of your EAP

The Orlando massacre was about people whose lives were brutally and mercilessly cut short.

HR now must focus on the people who have been touched by this tragedy….all of us.

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

Why is Steve Browne So Geeked?

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

Why is Steve Browne so geeked?

I had the pleasure of interviewing my friend, Steve Browne. Actually, we just talked. All quotes are Steve’s.

I wanted to learn more about the man who will be speaking on Tuesday, June 21, 2016 at 2:15 p.m. His topic: “MEGA SESSION HR on Purpose! Five Ways to Own, Lead and Integrate HR Throughout Your Organization.”

I started by asking Steve, when he was a child, what he wanted to be when he grew up. His answer: President of the United States.

If ever there were a year he should have run! Missed opportunity, my friend. Okay, I’ll stop there!

We then jumped ahead and talked about his interests in college. He told me that he had started with chemical engineering.

Because he did not excel in chemical engineering as he had hoped he would, he switched to interpersonal communications. And, the rest, as they say, is history.

Today, Steve is the Executive Director of Human Resources for LaRosa’s, Inc., a regional pizzeria restaurant chain in the Greater Cincinnati and Dayton, Ohio area. It has 16 locations and Steve has over 1,200 team members.

With unbelievable grass roots support, Steve joined the SHRM Board of Directors in January 2016. I think it is fair to say that he is probably the only SHRM Board member who is associated with tie dye.

What about the tie dye? Its roots go back to his “laid back days” at Ohio University where it was “everywhere.”

But it also speaks to who Steve is today. “It’s colorful. That’s how I see life.”

“I hope it makes me accessible. I am not a conformist. I worry about companies that say be yourself, so long as it falls within the company norm.”

Steve also discussed the creativity that goes into tie die. Without a segue, he then said: “If I don’t have creativity around me, I will die.”

That helps explain his favorite movie: Monty Python and the Holy Grail. “It was wildly creative…a bit irreverent…also poignant.” And, he then said again, “wildly creative.”

The person Steve admires most? His mom.

He talked about Lincoln and Ghandi. And then said, “that’s the kind of person my mother is.”

“Fame is fleeting. I’d rather know someone who is authentic their entire lives.”

Steve’s comments made me think: how many authentic people do I really know? And, then, a little deeper: when I am not fully authentic?

We eventually go the $64,000 question: why is Steve so geeked?

Steve laughed in a light-hearted way. But then responded more seriously.

“I find joy in everything around me. I am fascinated by people….authentic people.”

“I just felt that “geeked” was the word.” “No other word came to me.”

If you know Steve, you can feel his positive vibes. They resonate on social media so follow him at: @sbrownehr.

I mentioned to Steve how I believe many in HR find it hard to stay positive when there are so many workplace battles. His answer demonstrates the wisdom in geekdom.

“You have to remember that people will disappoint you. When people disappoint me, I work with them. When I disappoint them, I hope they give me the grace to work with me.

Steve continued about the importance of HR treating “people as people.” “We can’t have huge programs on engagement but not say hello.”

“People want to be recognized, seen, visible, thanked.”

Steve nailed a critical issue. In my observation, at times, we focus so much on engagement at a lofty perspective, that we lose site of the employees’ existential need for us simply to acknowledge, in a genuine way, that they exist.

“HR is a lot more simple than we make it. People are passionate and they need to unlock.”

“We, in HR, have to unlock ourselves first so that others can too…..be their authentic selves.”

And, how does this tie into what Steve wants his legacy to be as a SHRM Board member? From our conversation, I discerned three (3) themes.

First, he wants to encourage HR to stop “separating itself.” Rather, he hopes HR will see itself, as it is, “as part of the business.”

Second, he emphasized that HR needs to look at what is good not only for the employer but also for the employees. “We need to be there for the employees, too.” Yes, we do.

Finally, Steve said that he does not want people to join SHRM solely because they think it is the “right thing to do.” He hopes people will join SHRM because of all that it offers, which he described as “incredible.”

Yes, Steve wants to see SHRM flourish. My take on his words: because it captures our hearts and our minds.

Steve did mine.

You can follow me, too, at @Jonathan__HR__Law.

Stop Embracing Failure

I am pleased to share my latest post to Entrepreneur.

If I read one more article by an entrepreneur about embracing failure, I will scream. Actually, my scream is this article. Yes, almost every entrepreneur fails at some point in his or her career. That includes such greats as Steve Jobs.

And, we should be careful not to create a culture where people fear failure. Sometimes the greatest risk of all is to take no risk at all. So that means we must encourage prudent risk taking with the realization that not every new idea will have a positive return on investment.

But accepting failure and embracing it are very different. I agree with the former; I struggle mightily with the latter. I read one article that waxed so poetically about embracing failure that I ran out to look for “congratulations on your failure” greeting cards. I could not find any.

Confession: I am an entrepreneurial lawyer. No, that is not an oxymoron.

I sometimes hear lawyers talking about avoiding risk I respond there is no such thing as risk avoidance, only choosing and balancing risks. I sometimes hear entrepreneurs talking about necessary failures as a form of success. I am less vocal but I disagree that failure is success, even where necessary.

Rather than embracing failure, accept it, learn from it and then try again. In hospitals and other settings, when something goes wrong with a patient’s treatment, there is often an RCA — root cause analysis. Why did the potentially avoidable happen?

Entrepreneurs, do your own root cause analysis. Figure out why and where you failed so next time you are more likely to succeed.

To borrow from Wikipedia: The primary aim of root cause analysis is to identify the factors that resulted in the nature, the magnitude, the location, and the timing of the harmful outcomes (consequences) of one or more past events; to determine what behaviors, actions, inactions, or conditions need to be changed; to prevent recurrence of similar harmful outcomes; and to identify lessons that may promote the achievement of better consequences. “Success” is defined as the near-certain prevention of recurrence.

1. Goals.
Was my goal clear? You may be surprised how many failures exist because the goal was not defined.

2. Time line.
Did I have a clear time line to get there? Set a realistic time frame and build in time to make sure you can gather the support you need and overcome the obstacles that are foreseeable.

3. Team.
Did I have the right team supporting me? No one can do it alone. Pick those who see possibilities with realistic assessments of limitations as opposed to those who can see only what can go wrong or those who think nothing can go wrong.

4. Obstacles.
Did I anticipate obstacles in advance and minimize them? If you don’t see them, you will fail. Know what we are trying to mitigate, not eliminate, them. You cannot control everything….I think.

5. Influence.
Did I try to increase my chance of success by using influence as opposed to blatant directives? Influence is power so you are more likely to be successful if people share your vision as opposed to doing what they are told to do.

6. Feedback.
Ask for feedback from others on how to do better next time. You gain not only their ideas but also their engagement. Plus, if you are the driver on the mission unaccomplished, it is hard to have sufficient distance to see critically what needs to change.

7. Personal responsibility.
We need to take personal responsibility for failures, but not take them personally (to borrow from Sheryl Sandberg, the COO of Facebook). The difference between the two is the difference between day and night and the ability to have the resilience to bounce back.

 

9 Tips for Closing the Gender Pay Gap

I am pleased to share my latest article to the SHRM HR Magazine regarding the gender pay gap.

Everyone knows there is a gender gap in how employees are paid, though estimates vary as to how large it is. But compensation inequity of any size does more than expose an organization to litigation; it can cause disengagement and lower productivity, which can translate into lower profits.

It can also push talented employees out the door in search of greener pastures (and higher paychecks). In fact, often the smartest and most marketable employees are the first to leave. Bottom line: The gender gap is everyone’s problem.

So let’s begin with the assumption that your organization is smart and wants to eliminate this business inhibitor and legal wrong. What do you do?

1. Lawyer Up on Data Collection
Sometimes HR professionals will collect data to demonstrate that a problem exists. I understand why, but this can be dangerous.

The information likely will be discoverable, and your good-faith efforts could be used against you. If you need data to break through denial at your company, you may want to work with your employment lawyer to collect it under attorney-client privilege. Then have it delivered in the form of legal advice.

Even then, the underlying data may not be privileged if, for example, it is gathered from existing nonprivileged documents and information. However, data compilation and analysis done by-or at the direction of-counsel might still be protected from disclosure by the attorney-client privilege and/or the work product doctrine.

The bottom line is that the scope of the attorney-client privilege is deceptively complex, so give careful and thoughtful consideration to how you work with your employer’s lawyer to maximize the likelihood that the privilege will apply.

One thing is clear: Simply copying your employer’s attorney on an e-mail does not make the information within the e-mail privileged; it simply makes the attorney a witness to it.

2. Analyze Positions Qualitatively
Once you’ve documented pay gaps, don’t automatically assume they are all attributable to gender.

There may be totally legitimate business reasons for wage differences. For example, someone who took four years off to have and raise a child might earn less than someone who did not spend time away from work and who has received regular raises over that time span.

So, while quantitative data provides a starting point, a qualitative assessment of the relevant factors at play—one that ideally is also done under attorney-client privilege—is needed to determine if changes are in order.

3. Allow Negotiation …
Ellen Pao, former CEO of Reddit, tried to ban salary negotiations at her company based on the theory that allowing such bargaining inherently benefited men. Let me count the reasons I disagree with this tactic. Actually, I’ll stop at three:

First, it reinforces the stereotype that women aren’t capable negotiators.

Second, it takes away a woman’s (or a man’s) power to play a role in determining her (or his) own pay.

Third, whether and how someone negotiates may be relevant to whether you hire them. It is better than a behavioral question-it is a behavioral simulation.

4 …. But Reconsider Asking About Salary History
When we ask about prior salary, we may be unwittingly perpetuating the gender gap created by prior employers. If someone was paid too little at her previous employer, the low part of your range may result in a material increase in compensation but still be less than the candidate deserves.

Consider eliminating the salary history question from your applications. After all, what does prior compensation really have to do with what someone should earn for a new opportunity? Ask only if it is truly relevant to the job and document why you believe it is.

5. Create Pay Ranges But Recognize Exceptions
Establish pay ranges for positions to maximize consistency, and develop criteria for how you will place a new hire or promotion in the range.

But also realize that there will be times when exceptions are necessary.

Develop a procedure to determine when and why you should depart from the norm, and conduct periodic audits to make sure that exceptions are not made only for men.

6. Consider Access Issues
Pay is often linked to performance. At certain levels, I think that works (at least to some degree). But I firmly believe that you cannot perform as well as your peers if you don’t have access to the same opportunities that they do. In my view, this is where many employers miss the mark, big time.

I hate unnecessary bureaucracy as much as anyone, but if there is no structure as to how work is distributed, the plum assignments too often may go to someone “just like” the manager. While slights like this are not intentional, they are often very real. Are the highly desired assignments typically meted out among the guys while playing golf or drinking at the neighborhood watering hole? If so, the boys’ club may be rearing its ugly head in a way that perpetuates the access gap and, with that, the gender gap.

Access to key assignments, customers, clients and information is essential to successful performance and the resulting link to higher pay. Of course, managers must have some discretion, but there should also be guardrails in place so that access issues don’t translate into unequal opportunity.

7. Appraise Performance Appraisals
Gender bias is often evident in performance appraisals, which are linked to pay. Two examples:

• A man is refreshingly assertive, while a woman engaging in the same behavior is labeled with the scarlet “B.”
• Or, a new twist on the double standard: A woman and a man are both involved in equally unacceptable behavior, but he is described as having engaged in “abrasive conduct,” while she is simply labeled “abrasive.” It’s a subtle but important difference—between a behavior that can be changed and a fixed character trait.

Train your leaders on these and other potential biases.

8. Be Aware of Persistent Biases and Their Effects
Yes, some of what an employee is paid is a result of his or her ability to negotiate. So workers have a major role to play, too: An employee should not complain with impunity about making less than others if he or she did not ask for more or apologizes for having done so.

Unfortunately, ambition is not always viewed as laudably in a woman as it is in a man. Sheryl Sandberg makes that point in Lean In: Women, Work, and the Will to Lead (Knopf, 2013) multiple times. Here is the sad but persistent reality: A woman may have to decide between conforming to the societally accepted stereotype of being nice (and making less money) or being liked less because she asks for what she has earned.

9. Train Your Leaders
Of course, a woman who leans in should not have to choose between being well-liked or well-paid, so educate your leaders about the unconscious biases that can come into play in cases where women negotiate no differently from men. Once people are made aware of their own prejudice, they are less likely to unconsciously engage in it.

Inevitably, some folks on the leadership team will deny that the bias exists at all because they have not personally experienced it. Let me conclude by saying this: I have never experienced labor pains. But I would be foolish to deny their existence based just on my life experience. You can take the analogy from there.

11 Words or Expressions That May Result In Flogging at #SHRM16

I am pleased to share my latest blog post to the SHRM blog regarding the SHRM Annual Conference & Exposition.

Here are my top 11 words or expressions that none of us should dare say at the Annual Convention under penalty of listening to Barry Manilow for 24 hours straight while reading the FMLA intermittent regulations:

11. Buy in

10. Drivers

9. Synergistic alignment

8. Sea Change

7. Paradigm Shift

6 Knowledge share

5. Change agent

4. Value Proposition

3. Leverage best practices

2. Seat at the table

1. Think Outside the Box

I came up with #1 after vetting all 11 with key SHRM stakeholders and the completion of a robust gap analysis.

I would like to add emphasize that, if you think outside the box, you are still restrained by the box! Enough with the boxes already.

Listen for these words and avoid them at all cost. After all, you don’t want to be accused of “drinking the Kool Aid”

I must pivot now to another meeting. I will revert to this list after the meeting. But I hope you are actively engaged in the HR space as you ready for the Annual Conference.

And, remember, I write the blogs that make the whole world sing. This one is for you, Fanilows.

We can’t smile without you unless you are at #SHRM16. So we hope to see you there! Annual.shrm.org.

Mad Men: Where Are Our Friends One Year Later?

I am pleased to share my latest SHRM blog post regarding what “Mad Men” can teach us about life and career.

With all of the focus on the new overtime rules, a major event could be forgotten. One year ago last night we said good bye to Mad Men. For some, it was just a television show. Allow them their blissful naivety. A lot has happened to our friends in the last year with career and life lessons for all of us. So let’s leave the real world for just a moment:

Joan. Because Joan would not sleep with a knuckle dragger named Ferg, Joan was forced out of McCann Erickson. That was far from the first time she was sexually harassed. Joan had enough of the boys’ clubs of the corporate world. So she started her own business. I am delighted to report that Joan made 17% more over the last year than she ever made at McCann Erickson or Sterling Cooper. That gender pay gap? No issue when you are your own boss. Bravo Joan!

Roger. Although a lothario, Roger was loved by most of us. I think of Roger when I think of someone I like but “should not” or don’t like someone I “should.” Unfortunately, senior executives have begun to ask Roger in various ways whether he has given thought to when he will retire. Under the law, employees generally cannot be forced to retire. So picking up on the not so subtle hints, Roger called Joan, who had threatened to contact the EEOC when she was forced out of McCann Erickson. The predator is now prey but has taken control by making clear to the powers that be that he does not want to hear about age again, only about his performance. And, it remains stellar. On a personal note, Roger married Marie Calvet, the mother of Don’s ex-wife, Megan Draper, He is very happy with Marie—spending long holidays in Paris.

Pete. For so many years, it was hard to find anything nice to say about Pete. He was, after all, the character we loved to hate but not quite all the way. I confess that I feared his jaw dropping job in Wichita, Kansas City with a private jet to boot would bring out the worst of him. In reality, he initially struggled at his new job. So, he sought out a coach and listened to the advice he received. He has become more humble as hard as that may be to believe. And, now more of a team player, too, he is getting more support from his co-workers. And, part of success is people wanting you to be successful. Pete is on right track, back in the groove. On the personal side, Pete and Trudy are genuinely happy. Sometimes reconciliations work.

Betty. As we all knew was inevitable, we lost Berdie (Don’s term of endearment for Betty). Thankfully, she did not suffer too much. It happened too quickly for too much pain. But before she died, she and Don spent a weekend together (concluding one of Don’s 3 calls from the final episode). Betty’s death caused Don to think more about his own mortality and what he wanted to achieve and who he wanted to be. Back to my pal Don shortly.

Peggy. Let’s return to the Boys’ Club at McCann Erickson. It would be next to impossible for any woman to survive, let alone thrive. But thriving is what Peggy is doing. In her own voice, she has succeeded beyond expectations. She did not ask for a seat at the table; she took it. She is now a full-fledged copywriter with a waiting list of clients. She started a mentoring program for girls in junior high school. One of her mentees is a young girl named Sheryl Sandberg. As is often the case, the mentee teaches the mentor. Whenever Peggy is told that she is bossy, she hears Sheryl’s words and responds that she is simply leading. I am also delighted to report that Peggy and Stan got married. On a personal note, it was an honor to dance with the bride at the wedding.

Don. And, that leaves us with my friend Don. The last season was beyond painful as we watched Don’s life fall apart. Many of us wondered whether he would survive—we feared the opening of the show was a metaphor for his ending. Instead, he found himself at an Ashram in California where he thought of the genius marketing campaign for Coke and then returned to McCann Erickson to implement it. But his drinking continued unabated. Eventually, he hit bottom and went into treatment. At times, we all need help. No stigma. Get the help you need. I am pleased to report that Don has not had a drink for 7 months, one day at a time. No longer an active alcoholic, Don has focused on repairing his personal life. He and Megan had a short reconciliation but Megan is now on prime time so the bi-costal relationship ended. More importantly, the mad man is now a good man. Don is a good dad without a role model for the parenting skills he now employs.

Conclusion: Okay, I am a sucker for happy endings. So, I wanted to see all the seeds of professional and personal happiness planted by Matt Weiner in the last episode grow to their full potential. Yes, the Mad Men world is singing in perfect harmony, except for the tragic death of Betty. But, after watching the last season 3 times (to which I will admit), Matt left me no room to save her, as much as I tried. And, if nothing else, as you can plainly see, I am a realist, says the mad man who remains mad about the mad men and women of Mad Men.

Neither this blog nor SHRM, Duane Morris or Jonathan A Segal is affiliated, sponsored, endorsed, licensed or in any way associated with AMC. AMC neither endorses nor approves of the content of this piece of fiction or the services provided by SHRM, Duane Morris or Jonathan A Segal.

 

The New Overtime Rule: What’s It Mean For Your Business

I am pleased to share my latest post to Philadelphia Business Journal.

The U.S. Department of Labor on Wednesday finalized a new rule that doubles the annual salary threshold for receiving overtime pay to $47,476. The White House estimates that will provide overtime pay to an additional 4.2 million workers, leaving business owners wondering how they will foot the bill for the change or keep employees from racking up extra hours.

The new overtime regulations are rather uncomplicated as a matter of law but there are major business and employee relations considerations when it comes to implementation.

Let’s begin with the law. Generally:

▪The minimum salary will be $913 per week. As noted, that is double what the number was under the 2004 regulations, $455 per week.
▪While the increase is substantial, for the first time, an employer may include some compensation other than salary to meet the minimum salary. More specifically, employers can include non-discretionary bonuses, incentive payments and commissions to satisfy up to 10 percent of the minimum weekly salary.
▪The minimum salary will be adjusted every three years. The DOL had proposed every year.
▪There will be no changes to the primary duty test. The DOL had, by the questions it asked in its proposed rule, suggest it might move to a percentage test, as is the case in California. Instead, the test remains the same: primary means main, principal or most important.
▪The regulations go into effect on December 1, 2016. So employers have about six months to prepare.

The big question that employer will need to decide with exempt employees making below the minimum salary is whether to raise their salaries or to convert them to non-exempt. Among a much longer list, here are eight questions that every employer should ask itself in making that business decision.

  1. How will I get the work done? Exempt employees can work anywhere and anytime. And, most do. If you need that kind of flexibility, that may argue in favor of increasing salary rather than converting to non-exempt.
  2. How do I allow an employee I convert from exempt to non-exempt to work remotely without ending up with an off the clock case? Even if you don’t need an employee to perform substantial work remotely or you cannot afford the minimum salary increase, the now non-exempt employee still likely will need to perform some work remotely. We need to deal with it by developing guard rails to limit, capture and pay for all such work. The on-off switch with regard to remote work may need to become a dimmer.
  3. How are similarly situated employees being treated? Converting employees from exempt to non-exempt will produce different reactions. Some may be thrilled—the potential for overtime. Others may be less happy—they see it as a demotion. Make sure you have business reasons for whom you convert to non-exempt and document same to defend potential discrimination claims by those who are upset, one way or the other.
  4. How are you going to communicate with employees whom you are converting from exempt to non-exempt? This is critical. As just noted, some will see this as a demotion. You need to explain that the change is driven by legal considerations and nothing changes the value you place on what the employee does for you.
  5. How are you going to ensure that exempt employees don’t get killed as you move work from the newly converted non-exempt to them to avoid paying overtime? Many exempt employees making well above the minimum salary work day and night. There is a breaking point. Provide them with even more work and, at a minimum, this may produce resentment. If they become sufficiently unengaged on enraged, they may leave. Yes, Virginia, millennial employees are not the only ones who want a life, too.
  6. What do you do with employees who are above the minimum salary when you raise the salaries of others below it so they remain non-exempt? Raising the salaries of higher paid employees may be costly. But not raising their salaries may have a heavy employee relations cost. “So he gets a $4,000 raise and makes only $1.000 less than I do even though I have been here for 5 more years with great reviews.” A lot of tough calls will have to be made. And, remember, it is not “all or nothing.” Be creative.
  7. How do you train your managers on how to deal with those converted from exempt to non-exempt? The question provides the answer. Don’t forget the training. If you ask the now non-exempt employee to do something as she is walking out the door, tell her to log back in and pay her for the extra time. It is a little more complicated legally but you get the drift, I hope.
  8. How do I budget? Plan for more overtime as a result of conversions, unless you want to have unhappy or lose customers or clients. Educate your financial team of the new normal so that they can be partners and not impediments.

 

And, that’s just for starters. Having fun, yet?

Here’s How the New Overtime Rules Will Affect Entrepreneurs

I am pleased to share my latest blog for Entrepreneur.

The federal Department of Labor today published its final overtime rules but, before you say or write anything about the final regulations, please take a deep breathe.

The first thing to know is that for an employee ordinarily must meet three requirements to be exempt from receiving overtime under one of the white collar exemptions (executive, administrative, professional, etc.).

1. Minimum salary. 

The current minimum salary is $455/week. The DOL had proposed increasing the minimum salary to what would have been over $50,000 per year. The DOL pulled back slightly in its final rules; the new minimum salary will be $46,475 per year or $913.00 per week. Yes, that is more than double what it was in 2004.

In addition, the minimum salary will increase every three years. Initially, the DOL had proposed annual increases.

2. Salary basis. 

The employee must be paid on a salary, not hourly, basis. This means:

  • limited deductions are permitted for absences.
  • no deductions may be made based on quantity or quality of work.

One important change to the salary basis test: employers (for the first time) may use non-discretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the substantially-higher minimum salary.

3. Duties test. 

The employee’s primary duty must be exempt. Under current regulations, this is quantitative. Primary means the principal, major or most important. The DOL did not propose any specific changes to primary duty test. But it did ask a lot questions, suggesting that it would consider adopting a (harder-to-meet) percentage test.

Ultimately, the DOL did not change the primary duty test. With this background here are some do’s and don’ts for adjusting to the new regulations:

Do keep legal challenges in mind when analyzing positions.

When you evaluate or re-evaluate some positions in terms of their duties, some will fall into the legal gray. Be careful of self-analysis that may be discoverable and hurt you in the event of a legal challenge.

I get it. Labor costs may soar as a result of the new regulations but do not create “smoking guns” that will hurt you in court. Be careful of what you say or write. You don’t want to explain in court what you meant when you emailed “These regulations will kill us! We can’t increase salaries or pay overtime!”

Those emails will kill you in court, so think before you click “send.”

The scope of the attorney-client privilege is deceptively complex. Without getting into the legal weeds, talk with your lawyer about how to structure the collection and analysis of data to minimize its discoverability. By the way, sending a “cc” to your lawyer does not make the communication privileged from discovery. It simply makes your lawyer a potential witness. Delightful.

Lastly, this is a federal regulation but don’t forget state law. Employees get the benefit of whichever is more favorable.

Don’t immediately increase salaries above the ceiling.

You may be able to meet the minimum salary now. But will you be able to keep up as number goes up? Employee relations considerations come into play if you later convert the employee’s status to non-exempt. Plus, the cost of overtime may go up, discussed in more detail below.

Do carefully evaluate cost of retaining employees “as exempt.”

As noted earlier, the minimum salary will go up every three years. What if you can’t keep up? If you convert an employee later to non-exempt because of the minimum salary increases or the position is found to be non-exempt based on a legal challenge, your overtime costs will be based on a higher base rate. Here is an example to demonstrate the point:

Assume an exempt employee currently makes $800 per week — $20 per hour times 40 hours. If her rate is not increased and she is converted to non-exempt now, her overtime rate will be $30 per hour. Assume you raise that employee’s salary to the current minimum of $913 per week to keep her exempt from overtime, but further estimate that in six years the minimum salary is $1,200 per week. Money is tight so you convert the employee to non-exempt. Her hourly rate is $30.00, so that the overtime rate now is $45.00 per hour.

The cost of overtime soars.

Keep employee relations top-of-mind.

Hourly employees do not have the same flexibility as exempt employees. Most exempt employees have discretion over when and where they work, so long as they get the job done. Convert them to non-exempt and that flexibility goes away. Employers must consider this, and other employee relations considerations, before converting an employee from exempt to non-exempt.

Do proceed cautiously.

The new rules do not go into effect until Dec 1. You have time to plan thoughtfully, so do just that. Do not rush!

Start thinking….now.

This blog is not legal advice.

The Often Unacknowledged Bias Against Asian Americans

I am pleased to share my latest post for the SHRM blog.

May is celebrated as the Asian American and Pacific Islanders (AAPI) Heritage Month: http://asianpacificheritage.gov/about/. At times, this celebration seems to get much less attention than months dedicated to other groups of the diverse fabric of workplaces.

Perhaps, this is because, as a group, Asian Americans have been largely successful. For example, while less than 30% of the general population has a bachelor’s degree, approximately 50% of Asian Americans do.

However, because a group, broadly defined, has been successful does not mean that we should ignore bias that may exist against individuals in that group. Indeed, focusing on the success of the “group” may result in ignoring bias against the individuals.

So, while this month we celebrate the achievements of Asian Americans, we need to focus on the bias against them, too. If we don’t eradicate the bias, then individuals will not be as successful as they can be. Here are my top 7:

  1. Not all bias is unconscious. Sometimes the bias is quite conscious. It is sometimes framed as “lack of trust.”
  2. Sometimes the bias is based on stereotypes. The stereotype is that Asians are strong in math and science. This may result in their being discriminated against when it comes to jobs that involve strong interpersonal skills, such as human resources.
  3. At times, the bias is unconscious. While we should not generalize in the name of sensitizing, respect is shown in many Asian cultures different from North American norms. Lack of eye contact, which may be intended as respect, may be seen as dissembling. Saying “no” indirectly may be seen as lacking certitude as opposed to promoting face saving.
  4. Because there may be cultural differences, some employees may be less comfortable with employees of Asian heritage. The “not-like-me bias” may result in exclusion of Asian Americans from social and other opportunities to access decision makers that may affect advancement and other opportunities.
  5. Because Asian Americans are often referred to as the “model minority,” more may be expected of them. When they may fall short of our inflated expectations, they may be seen as failing, even when they actually are meeting “standard” expectations. There is no such thing as a positive stereotype.
  6. Or, because of the “model minority myth,” Asian Americans may not get the help they need. If a group is “so successful,” then why do we need to spend time addressing the real bias that keeps individuals within that group from being successful or even more successful?
  7. And, harassment still exists, such as jokes about the shape of Asian employees’ eyes or mimicking the accent of an employee of Asian ancestry. Just plain ugly.

These are but 7 examples of issues to which we need to keep our eyes and ears open and respond appropriately if we see, learn or become aware of them. As leaders, to see and ignore is to condone. There is no such thing as a passive bystander when it comes to discrimination or harassment if you are a leader.

Now, let us celebrate the many achievements of Asian Americans: http://adrian.edu/uploads/files/AsianContributions.pdf. Check out the many websites referenced. The contribution is real.

But may we never forget the abject horror of the Internment of Japanese Americans during World War II: http://www.history.com/topics/world-war-ii/japanese-american-relocation Never again!

Why Holocaust Remembrance Still Matters

Below is my latest blog for SHRM on the importance of Holocaust Remembrance.

The United States Congress created the Days of Remembrance as our nation’s annual commemoration of the Holocaust. This year, Holocaust Remembrance Day (Yom HaShoah) is today, Wednesday May 4, 2016. http://www.ushmm.org/remember/days-of-remembrance

During the Holocaust, more than 11 million human beings were systemically murdered. That includes 6 million Jews, 2/3 of the European Jewish community at that time. That percentage still boggles my mind. In my family, the percentage was much higher.

But the numbers would have been even worse were it not for the countless “righteous gentiles.” The term “righteous gentiles” is used to refer to those who are not Jewish and who risked their lives to save Jews during the Holocaust. They are specifically honored in Israel and throughout the world.

Today, I share with you links to some of their stories: https://www.yadvashem.org/yv/en/righteous/stories/. Please read about these heroes. Their stores are beyond inspiring.

On a personal note, I thank the Polish Church that hid my great aunt at their peril. Today, her daughter is one of my closest friends.

And, of course, there were the millions of American and other service men and women who lost their lives in fighting Hitler’s machine. They, too, cannot be forgotten.

I share this link to one story of their bravery. You can find so many more by using Google.

So what does this have to do with Human Resources? Of course, one connection to Holocaust Remembrance Day is the “human” in human resources. But it is more than just that.

This is not a day or week in which we celebrate the achievement or contribution of any group or people. In remembering the Shoah in our workplaces, we are reminded of how important it is that we brook no hate. It is also a time to recognize those employees whose lives were affected and shaped by this horrific period in history.

One way to do so is simply to post on your Intranet a remembrance statement. You can find words and images all over the Internet.

This is also a great topic for a diversity and inclusion program. The diversity in experience but the universal message that includes all: we cannot tolerate intolerance against any faith, race, ethnicity, etc.

And, of course, every day, we must do our best to make sure that hate has no place in our workplaces. A strong policy is not enough. When it comes to hate-based harassment, if you are in human resources or a manager, there is no such thing as a “passive by-stander.” To ignore is to condone.

As Jews, we often say “Never Again.” And, when we say that, we mean to anyone–at any time–anywhere.

Shalom (Peace) to all.

The Boys’ Club Perception Test

I am pleased to post the latest blog that I have written on gender bias and boys’ clubs. This one was published, gratefully, by Entrepreneur.

We read a lot about “Boys’ Clubs”. They are power circles of men, mostly white, who control, formally or informally, organizations or silos within them.

The gender demographics of the senior leadership team may be relevant but are in no way dispositive as to whether a boys’ club exists. I have seen organizations with senior leadership teams lacking in gender diversity that are not, in my opinion, run by a boys’ clubs. Conversely, I have seen organizations where the numbers at the top look good in terms of gender diversity but a core “boys’ clubs” calls the shots.

So, how do you know if you have a boys’ club? Of course, there is no test. So, I have a created one.

Warning from this lawyer — write your answers on a piece of paper and then throw away. Don’t want your self-evaluation to be used against you in litigation by a plaintiffs’ lawyer.

Emotions of this management lawyer — I want to scream about my prior warning. There should be strong privilege against discovery for critical self-assessment with eye toward increasing equality, maximizing compliance, etc.

Now, as for each of the five questions:

  1. If you generally agree, answer A
  2. If you are not sure, answer B
  3. If you generally disagree, answer C

 

The five questions:

  1. We don’t have a boys’ club.
  2. We don’t need a formal system to ensure equal access to meaningful opportunities; merit will prevail.
  3. More than a few of our sales and sales strategies informally take place in bars
  4. I think the gender pay gap is attributable not only to employer practices but also to employee choices.
  5. Women mentoring women is essential to shutting down the boys’ club.

 

1. We don’t have a boys’ club.
Almost everyone knows that boys’ clubs exist. But many believe that they exist only at the employer next store. Certitude is a good thing. But, on this issue, a little doubt is a good thing. So give yourself:

  • Two points for A
  • Zero points for B and C

 

2. We don’t need a formal system to ensure equal access.
Often the gender gap at the top is because women don’t have the opportunities they need to get there. Absence of meaningful opportunities also contributes to the gender pay gap. There is no one system always works. But “no system” never works.

No system often leads to what the EEOC calls “like me” bias. Those in charge of opportunities give them to those just like them — often other men. So some vehicle to measure equal access to opportunity is essential. Merit will prevail but only if there is equal access to opportunity. Time to score it:

  • Two points for A
  • One points for B
  • Zero points for C

 

3. Sales and strategy meetings informally take place in bars.
Social inclusion is a form of business inclusion. Information is shared, strategies are developed and relationships formed and/or cemented. Of course, many men don’t relish business in bars. And, there are women who do. But the local watering hole is often the club house for the boys’ club. The same is true of the golf course. Okay, let’s score it:

  • Two points for A
  • Zero points for B and C

 

4. Pay gap due to employer practices and employee choices.
There is no doubt that there is a gender pay gap. Those who doubt it sound as credible as men who deny the existence of labor pains because they never have experienced them. But, the gender gap is not due solely to employer practices. If you step out of the game to be the primary caregiver, when you step back in, you will make less. And women are still more likely than men to be primary caregivers.

As for points, the pattern you may have predicted no longer holds.

  • Subtract 1 point if you picked A (you have thought about the issue)
  • No points for B or C but, if you picked C, you may see bias in certain cases where it does not exist.

 

5. Women mentoring women will shut down the boys club.
No. And here’s why:

  • There are fewer women at the top so women mentoring women will deprive women disproportionately of access to the top
  • The burden of gender equality cannot be put entirely on women (particularly since men and women alike benefit from it)
  • The benefits to cross-gender matching are significant in terms of what each gender can impart and learn

 

Let’s score this one:

  • Two points for A
  • Zero points for B
  • Subtract one point if you picked C (again, very thoughtful)

 

Now, add up all of your points, subtracting points where you have earned them.

If you have five points or more, you may have a boys’ club, but don’t see it. If you have fewer than five points, you still may have a boys’ club, but you are primed to help dismantle it; please do.

That Difficult Conversation

I am pleased to share my latest article written for SHRM’s HR Magazine.

Every HR professional and manager has had to have a tough talk with an employee about his or her performance. Sometimes it is in the context of an annual appraisal. Other times, it may be a final warning prior to termination. But regardless of when the discussion happens, careful planning is necessary. Otherwise, the wrong things may be said or done, and difficult conversations can quickly evolve into difficult lawsuits. Here are 11 tips to help take some of the pain—and risk—out of those closed-door meetings.

1. Don’t Delay

Understandably, many of us defer uncomfortable confrontations. But while we’re procrastinating, the employee may be well-aware that a performance discussion is in the offing—and may use that to his or her advantage. For example, the individual may consult with a lawyer and allege a legal wrong, engage in protected activity, or take protected leave.

When situations like these occur, they put you in a tough spot. That’s because when you finally have the difficult conversation you’ve put off for so long, it may appear retaliatory.

Delaying only gives the employee power to make a pre-emptive strike. If you must defer the discussion, document what the conversation will be about, when it will occur and why you have to wait to talk at that particular time.

2. Avoid Chitchat

People often try to break the ice at the beginning of a difficult conversation with casual chatter. It is understandable but problematic. No good can come from starting with “How is your daughter recovering from her surgery?” Well-intentioned though it may be, this question could result in a discrimination claim under the Americans with Disabilities Act (ADA).

Treat the person respectfully, but don’t engage in small talk to put off the issue. Acknowledge immediately that this is going to be a difficult conversation about serious performance issues.

3. Document in Writing

Ideally, you should prepare two documents before meeting with the employee. The first lists talking points for yourself; the second is a document for the employee.

Consider giving the memo (or appraisal) to the worker at the beginning of the meeting and allowing him or her a short period of time to review it. After all, you have (hopefully) spent considerable time writing it, so give the employee some time to digest it before you begin discussing the situation.

4. Provide Examples

Of course, you should broadly identify where an employee’s performance has fallen short, such as in the area of customer service. However, without more information, such generalities provide little guidance. They also don’t offer the employer much support in the event of a claim.

Provide a number of specific behavioral examples of times when the employee did not meet objectives. If you are recounting only a small sampling of many such incidents, make that clear.

5. Avoid Focusing on Intent

When an employee fails relative to performance expectations, the employer may be disappointed or even angry. You may want to say, “You don’t care” or “You’re not trying.” This is ill-advised, for multiple reasons.

First, intent is largely irrelevant. The issue is results.

Second, you can’t prove intent. An employee has the upper hand in being able to demonstrate how hard he or she has tried.

Finally, by impugning intent, you are, albeit unconsciously, attacking the employee. When attacked, employees fight back.

6. Stay Away from ‘Why?’

It is critical that managers do not inquire or speculate as to whether a physical or emotional condition or a work/life management issue may be giving rise to the performance deficiency. For example, if you ask an employee whether he or she is depressed, the worker may answer, “Not anymore. Now I have a perceived disability claim under the ADA.”

That does not mean that you should not try to help. Just don’t speculate as to the reason for the performance deficiency.

There are plenty of supportive things you can say, such as, “We want you to succeed. Is there anything we can do to help?”

If the employee mentions a disability, condition or religious belief, you must begin an interactive dialogue.

7. Make No Excuses

No employer is perfect, and sometimes an employee’s failings are due to those of the organization. If that is the case, the worker should not be held accountable.

However, too often managers say things like, “It’s probably just as much our fault as it is yours,” simply to soften the blow.

That can come back to haunt you. In fact, in a case I handled many years ago, an employee used a similar statement from his employer as evidence that the organization was at fault rather than the worker and that the reason given for terminating the employee was a pretext.

Don’t take responsibility unless you are responsible.

8. Watch for Code Words

Of course, before having a difficult conversation, you need to make sure that there is no bias. However, even when the employer has a legitimate cause for complaint, sometimes individuals use words that may hint at discrimination.

For example, what might be the problem with labeling one employee as “too emotional” and another as “too rigid”? If you guessed possible gender and age discrimination, respectively, you are correct.

In the first instance, an employee yelled and then failed to meet her deadlines. In the second, the individual refused to do what was being required of him.

The behaviors were unacceptable, but the labels suggested bias.

9. Avoid Absolutes

I remember in law school hearing “always avoid always and never say never.” That’s because absolutes are absolutely assailable.

It takes only one example to the contrary, and the statement you have made is no longer accurate and may be evidence of pretext. The argument: You are exaggerating in an attempt to “get” the employee because he or she is [fill in the protected category].

In difficult discussions, it’s better to say “almost always” or “almost never.”

10. Listen

Give employees an opportunity to talk. Sometimes the worker has a valid point—or may provide clues as to why he or she is underperforming. With that may come a road map for improvement.

As important as what the employee says is what he or she doesn’t say. If an individual says nothing and later claims he or she was denied a needed accommodation, the prior silence may help the employer defend itself from the employee’s subsequent lawsuit.

11. Clarify Expectations

Yes, you need to clarify what the problems are. But you must also articulate what your expectations are going forward.

Set specific objectives and talk about when you will meet to discuss them—then do it.

Remember, the primary objective of the difficult discussion is not to create a record that can withstand scrutiny. That is the secondary purpose.

Rather, your first goal is to enable the employee to make the needed improvements so that both he or she and the organization can succeed.

 

#NLRB Says “I’m Sorry”

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

In a stunning legal development, the NLRB issued on this morning, April 1, 2016, a public apology for gutting employer rules designed to increase civility and respect. Before reading the apology, please listen to Brenda Lee sing “I’m Sorry.” It will help get you in the mood.

The statement of the General Counsel to the NLRB stated, in pertinent part:

We recognize that rules that promote civility and respect are important to create healthy workplaces. Indeed, while incivility and disrespect are not unlawful, they create an atmosphere in which bullying and unlawful harassment may thrive.

The General Counsel continued:

Further, rules that promote civility and respect do not discourage employees from engaging in protected concerted activity. To the contrary, they encourage thoughtful dialogue on many things, including the terms and conditions of employment.

In a personal note, the General Counsel apologized:

I’m deeply sorry for indirectly promoting incivility and disrespect by filing complaints against employers trying to maximize civility and respect. So there is no confusion, the following rule is lawful and will not be challenged by the NLRB: We expect all employees to treat each other, including their supervisors, with civility and respect.

The General Counsel concluded by saying:

Yes, respect for supervisors, too. The demonization of management stops today. Indeed, we thank managers for all they do to help employers thrive so that jobs survive.

Author’s Note: I hope you enjoyed this APRIL FOOLS’ BLOG.

Politics and Work: 7 Guardrails for Leaders

I am pleased to share my latest blog for Entrepreneur on politics in the workplace.

For years, we have witnessed a stark partisan divide. Some families have rules — no politics at dinner.

For employers, it is neither practical nor desirable to prohibit all conversations in the workplace. Indeed, to do so is legally dangerous.

Political conversations that relate to terms and conditions of employment may be protected. One can easily see how many political issues have workplace implications, like the gender pay gap, LGBT rights, religious liberty, Obamacare, paid leave, unions, immigration, etc. I think you get the point.

Still, the political divide can create workplace divides that are unhealthy. So here are some guardrails for leaders to minimize the risk that the inevitable will turn into the incendiary:

1. Remember your role as a leader.

If you are a leader, you don’t forfeit your rights to have political views. But be thoughtful about how you express them. You don’t want to suggest those who disagree with you are idiots. Yes, politics is a diversity issue, and we cannot exclude from the talent pool those with divergent political views.

2. Know your audience.

Some people take differing political views very personally. Unfortunately, in my view, many in both political parties demonize the opposition — so they serve as bad role models for the rest of us.

Make sure, before you talk politics, that there is a good working relationship. I enjoy good political discourse and that includes respectful disagreement — but only with those with whom I have a strong underlying relationship.

3. Focus on the positive.

Yes, you read it right. Safer to talk about whom you support than to talk about whom you loathe.Stated otherwise, it is one thing to say support A. It is another to bash B.

4. Think public versus private.

With a close colleague, a one-on-one dialogue (not diatribe) may be fine. I would stay away from the hard-core political in group meetings or leadership communications.

5. Listen.

I don’t mean to sound condescending (that means talk down), but listen to those with different views. You may learn a lot about them in a way that helps you work better with them.

At the risk of delving into political waters, someone who is a strong libertarian may not like “big employer” any more than they like “big brother.” That does not mean you should abdicate your management rights. But it may inform how you exercise your influence with the employee.

6. Careful of discriminatory language.

The candidates differ in terms of their age, ethnicity, gender, race and religion (in alpha order), among other factors. Comments that focus on what are “protected factors” under the employment laws are deeply problematic.

“Too old.” “Too religious.” You got the point. Don’t go there.

7. Respond proactively if you become aware of potential problems.

I confess that I enjoy watching debates. And, I can appreciate knockout punches regardless of whether I like the person throwing one.

In a workplace, there is no room for knockout punches. If you see temperatures are rising, intervene. Consider: “While we may have very different political views, we have at least one thing in common — we want X. [X is your mission, a specific project, etc.] So let’s focus on that.”

If comments reasonably could be seen as biased, you all but must respond. When you are a leader, there is no such thing as a passive bystander when bias is concerned. So, if inherent in the criticisms of a candidate is the person’s age, ethnicity, etc., make clear it’s not okay. It’s not.

Enough. Everyone back to work.

10 Keys to HR Grassroots Advocacy

I am pleased to share my latest post for the SHRM blog.

We all know the importance of grassroots advocacy.  How we go about it may make the difference in whether our message is, in fact, heard.  Here are ten (10) keys to consider to maximize the value of your efforts:

1.                  Follow draft legislation

Of course, you should track bills in your jurisdiction.  Look to see where they are in the legislative process and the purported level of support.

But you also should be mindful of developments in other jurisdictions too, particularly neighboring jurisdictions.  While all politics is local, there are trends that we ignore at our peril.

2.                Evaluate bills – think critically

When evaluating a bill, consider not only the short‑term but also the long‑term impact.  While some bills may have laudable intent, there may be adverse consequences.

For example, mandated sick pay may sound appealing, at least at first blush. But it limits an employer’s ability to design a workplace-flexibility program that reflects the needs of its workforce and meets the needs of employers. One size does not fit all.

3.                  Know your representatives

Whether at the federal or state level, you need to know your representatives.  Visit them.  And, invite them to meet with you and others.

Of course, there will be times it will be hard for you to have direct contact with them.  Develop relationships with their staffers, too.  Relationships with them can be the key to success and, in most instances, staff are more accessible than your representative.

4.                  Build positive relationships

You don’t want to be seen as someone simply making an “ask.”  Make public policy a two‑way street.

Offer yourself, and your company, as a valuable resource for HR knowledge. Share with your representative’s staff research from SHRM (among other sources) as well as non-confidential information on your own organization to help inform their decisions.

This can be particularly helpful in the early stages with proposed legislation. At this point, the representative may have not staked out a view.

5.                  Get others involved

HR should not go it alone. Consider involving others in your organization, such as your CEO.  Also, look at external organizations, such as trade or professional associations, with which you can partner. Look both nationally and locally as well.

6.                  Legal considerations

Do not forget that whatever you say may be discoverable.  So, breathe deeply before responding to a bill that you think could threaten your survival.

Imagine a letter in which someone threatens to close down if a bill is enacted and then the bill is enacted and the employer shuts down. The letter could be the fodder for a legal claim.

One way to counter this is to make sure we discuss issues in a factual, measured terms. Some organizations often use the most bellicose terms to describe what will happen if a bill becomes law.

Stay above that fray and speak in direct, clear, and accurate terms. It gives your advocacy pitch more credibility.

7.                  Don’t forget yourself

Yes, there are personal considerations, too.  Check with your employer before taking any public position.

It is possible that your employer may not want you to support or oppose a bill for reasons related to an important client, customer, your organization’s brand or other relationship.

You won’t know if you don’t ask. If you don’t ask, you might not keep your job.

8.                  HR considerations

Assume your workforce will find out what you say.  Accordingly, make sure what you have said is defensible in terms of content and tone.

For example, I would avoid loss of profits when it comes to proposed minimum wage increases that are too high. I would talk about what the potential consequences on employees may be: there is only so much money for wages so a large increase in the minimum wage may result a contraction in the wage range, hurting our long-term employees.

9.                  Be practical

Pick your battles carefully. You may not want to oppose a bill that has almost unanimous bi-partisan support.

You also don’t want to give life to an issue that is dead. So be careful of over-reacting by giving a bill that is going nowhere publicity so that goes it somewhere.

10.              Meet with your representatives

Under this category, six (6) recommendations:

  • Treat your meeting or interaction with an elected official’s office like any other business meeting. Come prepared, bring your business cards and discuss the issues in a professional, business-like way. Make sure you follow-up from the meeting with the staffer.
  • Do not make any assumptions with regard to the representative’s position or even knowledge of the bill.  In fact, even if the representative’s name is on the bill, it does not necessarily follow that he or she supports it or even has read it.
  • Do not attack the motives of the representative.  That only invites defensiveness, at the very least.
  • Explain the bill, in succinct terms, so that the representative knows what you are talking about. Discuss how the bill will affect your organization, one of his/her constituents. Even if he or she has read it, it is not likely to be top‑of‑mind.
  • Explain your position.  In this regard, do not simply explain the pros or cons of the bill. State what you ultimately hope the legislator will do.
  • Don’t ask for the impossible. In some cases, it may not be politically possible for the representative to oppose (or support) a bill. However, it may be possible for him or her to remain silent.

 

Hope these suggestions are of some help. Okay, now let’s do it!

 

 

Why Being the Model Minority Hurts Asian Americans

I am pleased to share my latest post for the SHRM blog.

When Asian Americans are described, we often hear words such as “so smart” or “so successful.” Indeed, Asian Americans are often referred to as the “model minority.”

The reality is that, as a group, broadly defined, Asian Americans largely have been successful. For example, while less than 30% of the general population has a bachelor’s degree, approximately 50% of Asian Americans do.

But calling a group the “model minority” hurts members of the group and can result in discrimination against individuals outside the group. Here’s why:

1. If you are a model minority, and “so smart,” you are not likely to get the help that you very well may need. When we assume individuals are “the model,” they are less likely to get equitable mentoring, support, etc.

2. If you are a model minority, then there is an implication that you may be stronger than others. This can result in bias against individuals who are white or members of other minority groups who in fact are stronger when it comes to a particular job opportunity.

3. With the model minority myth may come higher expectations. Being good is not good enough. We expect more: why isn’t this person as successful “as they should be?” This may result in bias against Asian Americans because of the inflated expectations.

4. Make no mistake about it: there still is material bias against Asian Americans. In some cases, it is unconscious. In other cases, it is blatantly overt. If a group is “so successful,” then why do we need to spend time addressing the real bias that keeps individuals within that group from being successful or even more successful?

5. When individuals talk about Asians as the model minority, there can be a tendency to focus on math and science. This may hurt Asian Americans when they apply for jobs that require strong interpersonal skills. One Asian American shared with me an experience of applying for an HR position and being given an application for an engineering position.

6. The model minority myth also ignores the reality that Asian Americans are a diverse group. This diversity within the Asian American community is often ignored.

7. Finally, the model minority myth may result in isolation. Asian Americans are not part of the white power structure but their concerns sometimes are only modestly addressed in efforts to increase diversity and inclusion. Indeed, at times, Asian Americans may experience outright hostility because of their collective success.

***

Asian Americans are a critical part of the fabric of our workplaces. If we want them to be “so successful,” then we need to stop saying that they are and deal with the bias that sometimes exists, even within the diversity space.

Why the Oscars’ Diversity Issue Matters to All Employers

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.

Smile. You’re on my Camera

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.

Care For, But Don’t Coddle, Millennials

I am pleased to share my latest blog for TalentCulture on the importance of caring for, but not coddling millennials. http://www.talentculture.com/care-for-but-dont-coddle-millennials/

Spend about half an hour Googling for articles on millennials and the workplace, and you will find more written in the last year alone than you will be able to read in a week. How do we attract millennials? What do millennials want? How do we make millennials happy? How do we make millennials feel valued? How do we make millennials feel comfortable?

Then, there are the less public discussions about millennials. In these private conversations, Generation X, baby boomers and traditionalists (and sometimes even older millennials) grouse about what they perceive as an entitlement mentality among some young millennials. Some go as far as to forget the “some.”

From what I have witnessed, there is a jarring juxtaposition between the public and private discourse. This disconnect is disturbing, at best.

Millennials are now the largest part of our workforce. Make no mistake about it; they are an important part not only of the future but also of today. So, we should be thinking about them. A lot.

The problem is that we seem to focus on them to the exclusion of other groups. This boomer worries not enough time is spent on Generation X, for example, the Sheryl Sandbergs and Michael Dells of the world.

Do a Google search focusing on what we need to do attract and retain Generation X. Are you done reading?

From a legal perspective, millennial myopia in the workplace may be evidence of age bias. There is one expression for almost all non-millennials: older workers protected by federal law.

The first year of Generation X turned 50 last year. Soon, all members of Generation X will fall in the federally-protected age group (40 and over).

I also worry that we talk about millennials as though they have monolithic needs and wants. We ignore the substantial diversity among millennials, engaging in the kind of stereotyping we would never do about any race or religion (or, at least, I pray not).

Finally, I worry that the almost obsessive focus on millennials is creating in some millennials that about which some complaint. If leadership mavens worry about your every want and need, it should be no surprise that “I want to be successful” may trail “I want to be comfortable.”

Regarding comfort, no one should have to endure harassment, abusive conduct or even subtle bias or true micro-aggressions. But not every moment of discomfort gives rise to a feeling we needs to articulate, let alone address.

And, for this, I blame those millennials who exhibit such behaviors less than those who have created the expectations giving rise to the actions. No sacred cows, here.

I start with helicopter parents of my generation that have involved themselves too often in their children’s education. And now, some are doing the same in the workplace. “Why did my son not get an A” has become “why did he not get the promotion.”

But it does not stop there. Some of our colleges and universities have gone so far to protect anything that could make anyone feel uncomfortable that that they have not only oppressed dialogue, but they also have infantilized these young adults. As one College President said in exasperation, “This is not a daycare. It’s a University.”

When these young people go from the safe places created for them in the educational space to the real world called the workplace, they sometimes struggle with this reality. When someone does not meet their needs or makes them the slightest bit uncomfortable, they feel microagressed or bullied.

The message is not that we should care less about millennials. The message is that we should apply a more calibrated and balanced approach.

We need to listen to millennials concerns. But we also need to make clear to them what we expect from them.

We need to appreciate the greater focus on life outside of work. But we need to make clear that without happy customers and clients there is no work.

We need to ensure that they do not endure unacceptable conduct. But we need to be clear that feeling uncomfortable does not always mean that someone has done anything wrong.

We need to understand this generation probably has it harder than any preceding it and, with that, a different perspective. But we need to focus on millennials as individuals and not merely the embodiments of generational stereotypes.

Perhaps, and most importantly, we need to care about millennials so that they genuinely feel valued and are productive and entrepreneurial as a result. But we need to be careful not to allow caring to slip into coddling.

When we coddle, we unconsciously satisfy our needs, but we rob millennials of the opportunity to grow. And, in doing so, we limit the growth potential of our organizations.

Adele’s ‘Hello’ & How It Encourages Stalking

I am pleased to post a blog I wrote for Philadelphia Business Journal on the dangers of turning serious issues into parodies: http://www.bizjournals.com/philadelphia/morning_roundup/2016/02/adele-25-hello-encourages-stalking-duane-morris.html 

I love the Adele song Hello. I have listened to it over and over and over again. I was disappointed not to hear her sing it last night at the Grammy awards.

But now I am relieved since I know the painful truth. Adele is “normalizing stalking.”

At least that’s what a group of students have claimed at the University of Oklahoma with support from at least one spokesperson from the University. How can this be?

In retrospect, it should have been obvious to me. The song includes the phrase: “I must have called a thousand times.”

Put aside the fact that Adele makes clear the person was never home. And, she never suggests that she even left a message. Sometimes facts get in the way when you look to make an issue when there is none.

But Adele is not alone. In Olivia Newton-John’s I Honestly Love You, she plaintively sings: “Maybe I hang around here a little more than I should.” Clearly, she, too, is normalizing stalking.

Stalking is an incredibly serious issue. It inflicts physical, emotional and financial harm.

Stalking is also often accompanied by verbal and physical harassment. It is hideous.

When we focus on Hello, we turn a deadly serious topic into what sounds like a Saturday Night Live skit. By going to the extreme, we turn tragedy into parody.

Sadly, this phenomenon is not limited to Hello. There are more than a few examples of groups on college and university campuses morphing sensitivity into satire.

We need to take serious issues seriously. And, that means speaking out against those who make a mockery of them.

Not Your Standard Valentine’s Day Blog

I am pleased to share my latest blog post for SHRM regarding Valentine’s Day in the workplace.

Every year, I write a blog on Valentine’s Day on the risk of infusing Valentine’s Day into the workplace. This is not the same blog, and it is not what you may expect.
We all know that the initial purpose of Valentine’s Day was for individuals to express their love to those whom they love in a non-platonic way. I was tempted to say romantic, but I once had a manager deny there was any romantic relationship because “it was only sex.”
Over time, however, the meaning of Valentine’s Day has changed. Just look at cards to parents, grandparents, kids, etc. I refuse to accept the premise that the greeting card industry is encouraging societal incest.
Many employees acknowledge the day too by simply saying “have a nice Valentine’s Day.” I don’t think they mean: “I want you here and now.”
And, some managers will bring in Valentine’s candy or other treats. I don’t think they have any sexual motive (I say, hopefully).
So, I am not sure it is reasonable to say Valentine’s Day has no place in the workplace  But here are 7 guard rails to consider as we approach Valentine’s Day:

1.  Okay to say Happy Valentine’s Day. I would avoid happy V.D.

2.  Better to say Happy Valentine’s Day to a group than an individual.  Don’t want anyone to feel singled out.

3.  Managers should be more careful if, when and how.  Perhaps respond only but don’t initiate.

4.  Managers should never said a card to a subordinate over whom they have direct or indirect authority.  Most certainly the card should not include an audio of  Olivia Newton-John—I Honestly Love You (1974).

5.  Never ask anyone who their Valentine is or whether they have one, unless you want to be a defendant.

6.  Any food you might bring in can be shared without fanfare.  Don’t need to say anything. The food will speak for itself.

7.  Remember, not everyone has a “Valentine” in the traditional sense.  While not having an intimate partner is not a “protected group,” such individuals are human beings who matter.  So let’s not avoid anything that may make anyone uncomfortable, but let’s consider how people feel in how we share what may be a common bond to most.

With no sexual, romantic or other prurient intent or thoughts, Happy Valentine’s Day to all!

 

Facing Potential Terrorism, Entrepreneurs Need to Think About the Unthinkable

It with a heavy heart that I post a recent blog that I wrote for Entrepreneur about the unthinkable we need to think about: terrorism. Click here to read article. 

Lean Out?

I am pleased to share my latest blog post for SHRM.

Sometimes clients ask me relative to gender:

1.  Would it be gender discrimination if we do X?

2.  Does the law require that we do Y?

Of course, we need to start with the legal imperative.  But, as HR professionals, we know we must transcend the legal imperative and focus on the business necessity (and moral obligation) to ensure gender equality.

For example, some subtle harassment may not be severe or pervasive enough to rise to the level of actionable harassment.  But it very well may create a place where women don’t want to work so they take their talent and contacts to a competitor.

Another example:  the law generally does not mandate that employers provide flexibility to help employees with work-life management.  But rigid employers will lose talented women (and men) to employers who get that flexibility and accountability are not inconsistent if managed correctly.

To paraphrase Sheryl Sandberg’s message in Lean In, organizations cannot survive, let alone thrive, if they exclude half of the pool of talent.  So, HR professionals lean in hard on the business case for gender equality or you may find successful women and women of promise “leaning out” rather than “leaning in.”

USCIS Regulatory Proposals Aim to Improve Immigration Process for High-Skilled Foreign Workers

I am pleased to share my latest blog post for Duane Morris Immigration Law. 

The White House is continuing to slowly roll out many of the 2014 promised changes to improve the U.S. immigration system.  New regulations,  published in the Federal Registeron December 31, 2015 seek to modernize and improve certain employment-based immigrant and nonimmigrant visa programs for high-skilled foreign workers. Benefits to participants in those programs would include improved processes for U.S. employers seeking to sponsor and retain immigrant and non-immigrant workers; greater stability and job flexibility for such workers; and more transparency and consistency in the application of DHS policy.

Many of these changes are aimed at improving the ability of U.S. employers to hire and retain high-skilled foreign nationals who are already the beneficiaries of approvedemployment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs), while also increasing employment flexibility for such workers. The proposed regulations would increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities in the U.S. job market.

Some of the highlights of the proposed rule include:

Improved Job Portability with an Approved I-140:
The proposed rule would limit the grounds for automatic revocation of approved I-140 Petition for Immigrant Worker. Once an I-140 has been approved for 180 days or more, it will still be valid for purposes of retaining one’s priority date and extending one’s H-1B status, even if the employer subsequently withdraws the petition or the employer’s business shuts down. The exception to this rule would be cases of fraud, misrepresentation, and a few other limited situations.

One-Time Grace Periods
The proposed rule would authorize a one-time grace period for certain nonimmigrant workers of up to sixty (60) days after employment ends, or until the existing validity period ends, whichever is shorter. This grace period would apply to those in H-1B, E, L-1, and TN status. Similar flexibility already applies to F-1 nonimmigrant students and j-1 nonimmigrant exchange visitors.

Eligibility for Employment Authorization in Compelling Circumstances
The proposed rule would allow certain high-skilled individuals in the United States in H-1B, H-1B1, L-1, O-1, or E-3 nonimmigrant status who are the beneficiaries of an approved I-140 petition to apply for one year of restricted employment authorization if they:

  1. are unable to adjust status due to visa backlogs; and
  2. can demonstrate “compelling circumstances” which justify issuing an employment authorization document.

 

At this time, DHS has not defined the term “compelling circumstances,” however the proposed rule offers possible examples such as serious illnesses/disabilities or cases of employer retaliation. Accordingly, this benefit will likely only apply in very limited circumstances.

Automatic Extensions of EAD Work Authorization in Certain Circumstances 
The proposed rule would amend the way USCIS processes applications for employment authorization to help prevent gaps in work authorization that are problematic for foreign nationals and their U.S. employers. Specifically, DHS is proposing to repeal the current regulations that require the issuance of interim EADs if the I-765 application for work authorization (“EAD”) has been pending more than 90 days. Under the new rule, USCIS will automatically extend the EAD for up to 180 days upon the timely filing of a renewal application for applicants who meet certain requirements. To be eligible for this benefit, the renewal application must be based on the same employment authorization category as the expiring EAD, among other requirements.

The proposed rule also clarifies various policies and procedures related to the adjudication of H-1B petitions, including extensions of status, determining cap exemptions, and counting workers under the H-1B visa cap.

USCIS is seeking public comment on the proposed rule through February 29, 2016. The proposed changes would take effect on the date indicated in the final rule once it is published in the Federal Register.

Special thanks to Christina Haines, Esq. for her assistance with this blog post.

New Restrictions on the Visa Waiver Program Enacted in the 2016 Omnibus Spending Bill

I am pleased to share my Duane Morris Immigration Law blog regarding new restrictions on the Visa Waiver Program.

On December 18, 2015, President Obama signed into law the 2016 Consolidated Appropriations Act (H.R. 2029), which will fund government agencies for at least another year. This omnibus spending bill also includes significant changes to the Visa Waiver Program (VWP) which appear under the Title of “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.’’

For more than 25 years, the Visa Waiver Program (VWP) has permitted citizens of participating countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. There are currently 38 countries participating in the Visa Waiver Program, each of which must provide reciprocal travel privileges to U.S. citizens. Since its inception in 1986, the Visa Waiver Program has facilitated tourism and business in the U.S., providing substantial economic benefits. According to the Department of Homeland Security (DHS), VWP travelers injected nearly $231 million a day into local economies across the country in FY 2014.

Last month, the White House announced enhanced security measures to the Visa Waiver Program (VWP), which included modifications to the Electronic System for Travel Authorization (ESTA) applications to capture information from VWP travelers regarding any past travel to countries constituting a terrorist safe haven.

To read more, please click here. 

Bye, Bye, Bad Precedent

I am please to share below my latest blog post for SHRM:

As we all know, in EEO termination claims, how we treat the “comparators” is critical. Two (2) key questions:

1. Did you let anyone else go for a same or similar reason?

2. Did you not let someone else go even though they had engaged in same or similar conduct?

What do you do if you have an inconsistent practice historically?

If you take a hard line, you may get an EEO claim. You are treated more harshly than X because of my [insert protected group or protected activity].

If you play it safe and a avoid hard line, you run the business risk by making bad precedent a consistent policy.

The beginning of a New Year is a great time to minimize the risk of bad precedent.

Prepare a document now stating that, regardless of what may have been the practice in the past, effective January 1, 2016, you will do X consistently.  You may even want to communicate something to that effect to the workforce (but without directly stating that there may have been prior inconsistencies).

What is the benefit?  You can show you have decided how you will handle the situation prior to and independent of knowing who next engages in the conduct at issue. If an employee is fired and brings a discrimination claim and uses pre-2016 comparators, you can defend on ground that the difference is not age, sex, race, etc., but rather the year in which the infraction occurred.

This does not eliminate the legal risk.  But it should minimize it materially. And the legal risk that remains must be balanced against the business risk of tolerating substandard conduct to avoid any legal risk.

Almost all predict that 2016 is going to be a difficult year. To meet your business needs, you will need agility without being bogged down by bad precedent.

Of course, it is more complicated with unions. You may need to negotiate with the  union. At a minimum, you always should provide the union with notice.

Bad precedent is, well, bad. Now is an ideal time to start making good precedent. Happy New Year.

 THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP

How Philadelphia’s New ‘Ban the Box’ Law May Hurt Employers and Employees

I am pleased to share my blog post for Philadelphia Business Journal.

“Ban the Box” initiatives are hot and likely to get even hotter. Indeed, for employers in Philadelphia, the law just did.

By way of background, “Ban the Box” initiatives are state laws or local ordinances that restrict when employers can ask about criminal convictions. The box that is banned is the answer to the question: have you been convicted of a crime…..”

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“Confidential” vs. “Trade Secret” – A Non-Binary Dilemma

Virtually all life sciences companies use routine protocols which they believe will protect their intellectual property and other confidential or “trade secret” information. Among these routine proactive protocols are having a standard confidentiality/nondisclosure agreement (sometimes referred to below as “NDA”), limiting access to confidential and trade secret information, periodic internal audits of safeguarding methods, and more. But are “trade secrets” the same as “confidential information?”

Most confidentiality/nondisclosure agreements will include references to “intellectual property,” “trade secrets,” and “other confidential information.” The agreements usually contain a boilerplate laundry list of the types of information the company deems to be protected under the agreement – formulae, protocols, cell lines, and so on. Many agreements define “trade secrets and other confidential information” far too broadly — for example, a clause defining as confidential “all other information about the company or its business.” There is an inherent tension between defining a company’s confidential/trade secret information too narrowly (the risk being that something important is not defined as confidential or trade secret) or defining such information too broadly (the risk being that a court will conclude that the definition is overly broad and will refuse to enforce the agreement). A discussion on striking the right balance in a company’s definition of its confidential or trade secret information is a topic for another blogging day. Stay tuned.

Today’s blog will focus on two alternate paths a company might take in seeking to protect its confidential or trade secret information. We will work under the assumption that an individual formerly employed by biotech Company A has now left and is working for biotech Company B in the same capacity, a high level research position. We will further assume that the worker had access to highly confidential trade secret information belonging to Company A, and that he or she did execute a confidentiality/nondisclosure agreement while employed by Company B. Company B heralds the employee’s arrival with press releases, and soon thereafter, Company A learns that Company B is now doing research that sounds remarkably similar to that which the employee spearheaded while at Company A. What are Company A’s options?

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A Holiday Tale (From a Jewish Guy Who Wears a Chai)

I am pleased to share my blog post “A Holiday Tale: Guidance from a Jewish Guy Who Wears a Chai” written for SHRM.

You are a beleaguered HR professional charged with making the holidays lively without inviting lawsuits. On the day of your company’s holiday party, you walk into the lobby of your building and see the elegant Christmas pine that you helped decorate. As you behold it in its twinkling glory, a co-worker says, “That tree is inappropriate in the workplace.”

Wrong. It is beautiful; Christmas can and should be acknowledged—so says the Jewish guy who wears a chai pendant given to him by his grandmother. (Chai is a Hebrew letter that means “life.”) There’s no reason to remove symbols of Christmas from holiday decorations. But recognize other holidays, too. A Hanukkah menorah and a Kwanzaa harvest basket would be nice additions.

Your encounter in the lobby, however, is just the beginning of a day of seasonal challenges.

Grumble, Grumble

In the elevator, you hear employees complaining about the holiday party. “I don’t want to go, but I feel like I have to,” one says. You think you can feel the early signs of a migraine coming on. You would love to say, “Please, if you don’t want to go, by all means, don’t. Your present to me would be your absence.” It’s OK to think it, but please don’t say it (unless you are retiring at the end of the year).

In fact, unless the holiday party is scheduled during working hours, be careful not to require or even strongly encourage employees to attend—or else you may ring in the New Year with a wage and hour claim. Yes, Virginia, there is a chance an employee may claim the party is work.

Another person in the elevator is upset that the gathering is not called a Christmas party, while still another says that, as an atheist, she objects that there is any party at all. Oy vey, you think.

Usually, it’s best to call your shindig a holiday party or seasonal celebration to maximize inclusion, but it is more than OK to mention the various holidays celebrated, including Christmas. In fact, please do. Inclusion does not mean eliminating anything that is not universally shared. It is the opposite!

To continue reading, please click here.

 

Third Circuit Rules That “Predominant Benefit” Test Determines FLSA Meal Period Compensability

On November 24, 2015, the Court of Appeals for the Third Circuit ruled in Babcock v. Butler County, that a meal period is not compensable under the Fair Labor Standards Act (“FLSA”) when the “predominant benefit” of the mealtime belongs to the employee.  The decision announces the standard for determining whether a union or non-union employee of a private or public employer in the Third Circuit (which includes Pennsylvania, New Jersey, Delaware, and the Virgin Islands) is entitled to compensation during a meal period.

Legal Background And Facts

Under the FLSA regulations (which are not legally binding but highly-persuasive guidance), rest periods of five minutes to about twenty minutes “must be counted as hours worked.”  On the other hand, “bona fide meal periods” of thirty minutes or more are ordinarily “not worktime” although shorter periods may qualify as unpaid meal periods under special circumstances.  See 29 C.F.R. § 785.18; id. § 785.19.* Against this backdrop, a group of correctional officers (“officers”) sued their employer alleging that they were not properly compensated under the FLSA.  The officers’ collective bargaining agreement (“CBA”) specified a shift length of eight and one-quarter hours, including a one hour meal period.  In practice, the one hour meal period was broken into a paid forty-five minute period and an unpaid fifteen minute period.  The CBA was silent on the compensability of the fifteen minute period, and the officers contended that the fifteen minute period should be compensated because during it they were bound by certain restrictions.  In particular, during the meal period the officers were:

  1.  not permitted to leave the employer’s premises without permission
  2.  required to remain in uniform
  3.  obliged to stay in close proximity to emergency response equipment, and
  4.  on call to respond to emergencies.

 

The Third Circuit Adopts The “Predominant Benefit” Test

The Third Circuit first decided which of two tests determines meal period compensability.  The Court quickly rejected the “relieved from all duties during the mealtime” test.  It should be noted that this is the test in the DOL regulation on this issue.  The regulation provides, in pertinent part, that during a “bona fide meal period,” the “employee must be completely relieved from duty for the purposes of eating regular meals. . . . The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.”  29 C.F.R. § 785.19(a). Instead,  the Court adopted the “predominant benefit” test.  The Court noted that its conclusion was consistent with the majority of the courts of appeals to have addressed the issue.  The parties notably did not dispute that the predominant benefit test applied. The Court then explained the predominant benefit test, describing it as a fact-intensive, totality-of-the-circumstances inquiry that requires analysis of  “whether the [employee] is primarily engaged in work-related duties during meal periods.”  Slip. Op. at 6.  The Court canvassed factors that other courts have looked to when applying the test, including whether employees are:

  1.  permitted to leave the premises during a meal period
  2.  disrupted frequently during a meal period
  3.  allowed to take a meal period without first seeking permission
  4.  limited in what they may read during the meal period
  5.  bound by any meal period provision in a CBA that evidences an “agreed-upon characterization” of the meal period, id. at 10.

 

The Panel Splits On How The Test Applies To The Officers’ Allegations

The majority, in an opinion by Judge Sloviter, concluded that, on balance, the officers’ alleged meal period restrictions did not predominantly benefit the employer and thus the fifteen minute meal period was not compensable.  For this reason, the majority affirmed the district court’s grant of the employer’s motion to dismiss.  The majority’s conclusion was grounded on two major premises.  First, the officers’ alleged restrictions were insufficient as a matter of law to thwart their ability to pass the mealtime without being primarily engaged in official responsibilities, especially when compared to the “cadre of case law addressing mealtime compensability in the law enforcement context[.]”  Id. at 9.  The majority placed great stock in the officers’ ability to both request authorization to leave for lunch and eat away from their desks.  Second, the majority found that the CBA provided officers “with the benefit of a partially-compensated mealtime and mandatory overtime pay if the mealtime is interrupted by work.”  Id.  The majority concluded that the FLSA required no more.  Id. Judge Greenaway, in dissent, would have reversed the district court’s dismissal of the Complaint.  The dissent’s balancing of the restrictions on the officers’ use of the fifteen minute portion of the meal period led it to the conclusion that the meal period was compensable.  Judge Greenaway reasoned that because the officers were required to be prepared to serve at a moment’s notice for the entirety of the meal period, they were required to maintain a physical and mental readiness for the employer’s benefit regardless of the CBA.   Judge Greenaway also was troubled by the majority’s resolution of this fact-specific inquiry before the officers’ had an opportunity to conduct discovery.

What Babcock Means For Employers

Babcock makes clear that, although the predominant benefit test applies in the Third Circuit, it is not a bright-line rule.  The test turns on the balancing of multiple factors that could lead reasonable minds to reach divergent conclusions about whether the employer or the employee is the predominant beneficiary of a meal period.  Indeed, the majority and dissenting Babcock opinions reached opposite conclusions on the same facts. The decision should nevertheless give employers some comfort that modest restrictions on their employees’ use of an uncompensated meal period will not convert it into a compensated meal period under the FLSA.  Although the frequency and nature of mealtime interruptions was not an issue squarely before the Third Circuit in Babcock, the majority opinion suggests that de minimis interruptions to a meal period may be insufficient to transmute a non-compensable meal period into a compensable one.  As noted earlier, the Babcock decision is inconsistent with the DOL regulation on this issue.  It is reasonable, therefore, to assume that the DOL will apply the Babcock factors in a way that favors compensability of meal periods.  If an employee experiences more than a de minimis interruption during a meal period, an employer wanting to avoid legal risk should pay for the break. It is also important to remember that applicable state wage and hour laws may have rules and requirements that are more stringent than the FLSA’s requirements.  By way of example, under   Pennsylvania and California wage and hour laws, when an employee is required by the employer to remain at the employer’s premises, that time is compensable.  Under New York law, in contrast, there is no rule that requires an employee to be permitted to leave the work premises during an uncompensated meal period.  Remember: employees get the benefit of federal or state law, whichever is more favorable. Babcock also has an impact on employers with a unionized workforce.  Although a CBA’s characterization of a meal period is not dispositive of FLSA liability (or a defense to it), Babcock allows the characterization to be used as one factor in the predominant benefit analysis.  Employers who find themselves negotiating CBAs must similarly view the proposed compensation and meal period restrictions in total to determine whether there is any risk of FLSA meal period liability. In summary, the predominant benefit test may be a powerful employer defense that will enable an employer to maintain uncompensated meal periods and still impose some restrictions on their usage (at least under federal law).  Nevertheless, an employer taking cover behind the predominant benefit test still may incur large litigation costs to prevail on this defense in any individual or collective or class action litigation.  Employers, therefore, should remain vigilant with regard to their policies and practices when it comes to compensating for meal and other breaks.

* Employers should also be aware that attorneys in Duane Morris’ Employment, Labor, Benefits and Immigration practice group have represented employers in Department of Labor (“DOL”) audits where the DOL’s position has been that any break that is fewer than thirty minutes must be paid.  Further, this is the law and/or enforcement position in some states, such as New Jersey.  For this reason, generally, we advise employers ordinarily to compensate employees for all meal periods that are fewer than thirty minutes or that are thirty minutes or more but interrupted.

The 13 ‘Must-dos’ to Include on Your Holiday Checklist

I am pleased to share with you the latest blog I wrote for Entrepreneur.

The upcoming holiday season can be the most wonderful time of the year, but it all poses challenges to entrepreneurs of all sizes. Yes, there are risks. What good does not come with some risk? But most of the legal and employee relations risks can be mitigated with some thoughtful planning. So here’s a checklist of issues to minimize the risk that your December celebrations will result in January claims.

1. Don’t eliminate Christmas.

Don’t eliminate Christmas from the holiday season, says this Jewish guy. It’s a beautiful holiday that should be celebrated. And a Christmas tree is just fine, too! But what about those who don’t celebrate Christmas? Read on.

2. Include other holidays.

It’s about inclusion, not exclusion. Rather than excluding Christmas, recognize other holidays, such as Hanukkah and Kwanza. Consider a menorah and Kwanza basket along with the Christmas tree! No lit candles, please.

3. What holiday did you forget?

You don’t know what you don’t know. Profound. So, ask. Ask employees if there is a holiday that they would like to see included in the celebration (and that includes decorations). By asking, I learned that the Buddhist holiday of Bodhi Day falls on December 8.

4. What about those who don’t celebrate?

Some employees celebrate holidays at different times of year. Some don’t celebrate holidays at all.

This does not mean we should nix the season celebration. It does mean we should reference in our communications those who may not feel part of the seasonal celebrations. I will try to do just that at the end of this checklist.

5. What should you call your party?

“Holiday party” is the most inclusive term. Make your party more inclusive by having decorations and music reflect diverse holidays. Think about your choice of decorations and songs. Those that are religious are more appropriate for religious celebrations (or for religious employers).

What if someone is offended by Jingle Bells? May that be his or her biggest problem in life!

To continue reading, please click here.

 

The Browning-Ferris Effect: I-9 Enforcement Actions

I am pleased to share my Law360 article regarding I-9 enforcement actions.

Since the Aug. 27, 2015 decision of the National Labor Relations Board in Browning-Ferris Industries of California Inc., 362 NLRB No. 186, in which the NLRB swept away 30 years of precedent to rewrite the definition of who is a joint employer, employers and their advocates have been considering how this decision will impact employer liability in other contexts.

The issue at stake in Browning-Ferris was whether the International Brotherhood of Teamsters could include a group of laborers employed by a subcontractor of Browning-Ferris in a collective bargaining action. The Teamsters argued that the subcontractor was a joint employer because it provided temporary labor at a recycling plant of Browning-Ferris. The NLRB agreed with the Teamsters and set out a new test. To determine the “exercise of a control” in the workplace, the board will consider the ways in which employers may “share control” or “co-determine” the terms and conditions of employment. The NLRB held that “the right to control in the common law sense is as probative of joint employer status as is the actual exercise of control, whether direct or indirect.”

To continue reading, please click here.

Don’t Stop with “Thank You for Your Service”

I am pleased to share my Veterans Day blog post from SHRM, Don’t Stop with “Thank You for Your Service”.

While we have a tragic divide in the political world, we seem united on at least one issue: we thankfully express support for our Veterans.  On this day, we make a point to thank Veterans for their service.

That’s a great start. But it is by no means enough.

I had the opportunity to sit down with Andrew Morton, Director of Social Engagement for SHRM.  Retiring as a Lieutenant Coronel after 21 years of service in the army, including a tour of duty in Iraq that resulted in his becoming disabled, Andrew shared with me his thoughts as to how we as employers sometimes, without bad intent, fall short where our veterans are concerned. All quotes are comments made by Andrew in the course of our open discussion.

Andrew made clear at the outset that “he did not want anyone feeling sorry for him.” He mentioned what he has faced in the past only in terms of how it has given him “the strength and experience to face challenges now.”

This led us to a discussion of how often employers talk about giving back to veterans.  Yes, there is, I believe, a moral imperative.

To continue reading, please click here. 

Fix, Don’t Nix, Your Performance Reviews

I am pleased to share my blog post for Entrepreneur on the importance of performance reviews.

Once again, performance reviews are under attack. Some management gurus have even called for their elimination. And a few big-name companies, such as Accenture, have already complied. But the idea of gutting reviews is nothing new. As long ago as 2000, a number of management mavens recommended “86-ing” them.

Why the renewed assault? Here are the four reasons I hear most commonly:

  • Time — For most supervisors, time is their most valuable commodity. Reviews take time and often are complicated. So, those appraisals don’t get done, resulting in a requirement not met, which may be exploited in litigation. But, can’t we make the evaluation less complicated and compel its completion?

 

  • Stale — With the rapidity of change, today’s goal may be outdated tomorrow. By the end of the year, the goals set at the beginning may not reflect the reality of what has transpired in between. But, can’t reviews be adjusted mid-year?

 

To continue reading, please click here.

 

Gender, Influence and the Use of Qualifiers

I am pleased to share with you my blog post for TalentCulture on the use of qualifiers in the workplace.

Your organization has a major operational problem. A strategic team has been called together to come up with a solution. You have winnowed the options down to three (3) after four (4) long meetings.

The leader of the group asks each individual to state his or her choice. Your choice is Option A.

Let’s consider some options:

You say: “My best guess is Option A.”

What may be heard: “If after all of this discussion you only have a guess, I’m not sure why we included you in these discussions.”

To continue reading, please click here.

 

Do I Really Need to Update That Job Description? Failing To Do So May Complicate ADA Litigation

I am often asked by HR professionals whether it is necessary to update job descriptions or, more simply, even have them in the first place. While there is no legal requirement to have a job description, there are a few practical reasons to do so.

A job description (or job posting) provides applicants with a general sense as to the nature of the position for which they are applying. For employees, a job description sets expectations and can be a useful benchmark against which a manager evaluates employee performance.

In the context of the Americans with Disabilities Act (ADA), a job description can be a key tool to support an employer’s position with respect to the essential functions of a position and the extent to which a requested accommodation may reasonably be provided. Unfortunately, a job description can also be a glaring statement of inconsistency.

In a recent lawsuit filed against a university, a horticultural specialist with lifting restrictions claimed that her employer failed to reasonably accommodate her lifting restrictions, instead keeping her on a leave of absence for two years. Her employer presented an undated job description purporting to show that approximately 90% of her position involved certain physical tasks and, therefore, the employee’s lifting restrictions could not be reasonably accommodated. However, the employee presented a copy of the job posting which did not emphasize physical requirements, but instead focused on job responsibilities such as planning, design and oversight that were “not physical in nature.” In light of the inconsistency, the court denied the employer’s motion for summary judgment and the employee’s failure to accommodate claim is now proceeding to a jury.

This case serves as a sound reminder to employers that job descriptions should be updated to reflect current tasks. The job description should also include a catch-all statement that it is further subject to those additional tasks established by the manager. Other documents such as performance evaluation tools, department protocols or requirements may also be cross-referenced in the job description to improve an employer’s ability to argue that the job encompasses those tasks. Inconsistencies with documents such as former job postings can be remedied by informing applicants and employees that those documents are general postings, subject to the more specific requirements of the department and/or manager.

Bottom line – take these extra steps to enable the job description to enhance your reasonable accommodation interactive process, not hinder it.

To learn more about the ADA interactive process, accommodation obligations and the importance of job descriptions, join us on Oct. 28th, 2015 for our Duane Morris Institute seminar entitle “Intermittent FMLA Leaves” and “Pregnancy, ADA and Religious Accommodations.”

 

What Jennifer Lawrence’s and Bradley Cooper’s Salaries Mean for Every Entrepreneur

I am pleased to share with you a blog I wrote for Entrepreneur on the gender pay gap.

Recently, Jennifer Lawrence wrote an article on the gender pay disparity she saw in her pay negotiations for the movie American Hustle. In her piece, she blamed herself for not negotiating harder. Now, I don’t know if gender accounted for that particular case of pay disparity, but I do know that this Oscar Award-winning actress was spot-on in understanding that assertiveness in a woman is not always viewed the same as it is in a man.

What is considered as laudably assertive in a man is too often viewed as unacceptably pushy, self-centered or aggressive in a woman (a scenario explained in more detail by Facebook COO Sheryl Sandberg’s in her groundbreaking book, Lean In: Women, Work and the Will To Lead).

To continue reading, please click here.

How Gender Bias Hurts Men

I am pleased to share with you a blog I wrote for SHRM’s HR Magazine.

Title VII of the Civil Rights Act of 1964 bars discrimination based on sex, which effectively means gender. Those who assume that this prohibition protects only women are sorely mistaken: It applies to men as well.

That’s not to say that women don’t bear the brunt of gender discrimination. Fifty years after the enactment of Title VII, they are still unacceptably underrepresented in corporate senior leadership positions and on boards, and it is beyond argument that there are clear business benefits to attaining gender diversity at all levels. But discriminating against men is not the way to get there.

Favoring Women

Assume an employer has seven members on its senior leadership team—all men. When one retires, you see a great opportunity to increase gender diversity by hiring a woman. Is that an acceptable strategy?

No, it’s not. While that impulse might come from a good place, you cannot reserve a position; doing so would be per se gender discrimination.

What about favoring a woman in the hiring decision? That is giving her a “plus.” Generally speaking, the federal courts have said “no” except under extremely narrow circumstances.

To read on, please click here.

 

Generation X: Have We Forgotten You?

I am pleased to share with you the blog I wrote for SHRM.

It is hard to go on line and not read an article, blog, post or tweet on Millennials. There is, if you will, Millennial mania.

It is true that Millennial employees are now about 1/3 of the workforce and that percentage is rapidly growing. But even I can figure out the math on this one: 2/3 of the workforce is composed of non-Millennials. There is another way to describe them: older employees.

We absolutely must look at the wants and needs of Millennials because they are a key part of our future. We also need to be careful not to generalize about this generational group in a way that we would not about a racial, ethnic or religious group; there is substantial diversity among them.

But we cannot focus on Millennial employees at the exclusion of older employees. We run the risk of not only disengaging them but also of age-related litigation as a result of the disengagement.

To continue reading, please click here.

Not All Millennials Are The Same

I have spent a huge amount of time lately speaking at different Human Resources Conferences throughout the country.  I love this part of my job because it provides me with the chance to speak about topics like workplace diversity, LGBTQ issues  and other subjects about which I feel a great deal of passion.  Fortunately, it also allows me with the wonderful opportunity to sit and listen to other attorneys, HR professionals and C-Level folks, speaking about varying topics.

One subject that seems to continue to come up is how to manage millennials in the workplace.

Last week, I had a very interesting conversation with a millennial, who, candidly, was irate about the way her generation is continually “put in a box.”  She shared with me that, at every HR Conference she has attended, at least one or two speakers have “droned on” (her words) about how all millennials need constant feedback and hand holding, how millennials are scattered and how millennials have limited attention spans.  She shared with me that she keeps sitting in other sessions about the importance of diversity and starting to eliminate unconscious bias and anachronistic roles associated with certain people, but for some reason, it seems acceptable to group all millennials together.

She has a good point.

We all, appropriately and earnestly, speak about the importance of diversity and open-mindedness, about the dangers of stereotyping and about treating people based on who they are rather than on who we think they should be.  Let’s make sure we remember these messages as they apply to millennials.  We cannot paint with such broad strokes.  We need, at all times, to be mindful that one size almost never (read: NEVER) fits all.

Let’s make a pact.  Regardless of the group, whether it is, for example, gender-based, race-based, national-origin-based, or age-based, we look past the common refrain and see the person, as an individual.

What’s Next? More Bad News For Employers

In August, the Labor Board reversed thirty years of precedent in its Browning-Ferris decision. It is poised to do it again. This time the precedent dates back to 1973.

In Browning-Ferris, the Board expanded the joint employer test from whether the host employer exercises direct control over agency employees to include whether the host employer exercises indirect control (e.g., host employer supervisors tell agency supervisors what their employees should do) and/or have possible control (e.g., the contract with the agency retains direct or indirect control over agency employee wage/hour costs). Browning-Ferris so vastly broadened the joint employer determination that now it is almost impossible for a host employer to have even any realistic control over the work done by and cost of the agency employees without being a joint employer. The result is that if the agency employees choose to be represented by a union, the host employer will have to be at the bargaining table and negotiate with the union about the terms and conditions of their employment, at least while working at the host employer’s facility.

What’s up next for the Board is to close the circle and will, no doubt, use the pending case of Miller & Anderson to do it: permit bargaining units comprised of both host and agency employees, even when one or both employers object.

Assuming that the Board does use Miller & Anderson to reverse a principle that dates back to 1973 (Greenhoot, Inc.) and permits mixed units, employers that use agency employees and who are determined to be joint employers under Browning-Ferris may be forced to negotiate a single labor contract covering both its and agency employees. The two decisions will make the following scenario possible:
• An employer of thirty-five regular employees hires an agency to supply it with fifteen workers during the host’s busy season.
• A union gets authorization cards from all fifteen agency workers with the promise that the union will get them full-time, “permanent” jobs with benefits with the host employer. Since the union has more than 30% of the total number of employees signing cards, the union files a petition for an election covering a unit of both the staffing agency employees and the host’s employees.
• Because the host employer is a “joint employer” under Browning-Ferris, the Board approves of the unit and schedules an election.
• If the union wins the election, the host employer and the agency will have to bargain a labor contract that will cover both the host employer’s regular employees and the agency’s employees.

Of course, there are many unstated facts in the above scenario, but the scenario is neither unreasonable nor unlikely.

Employers that use agency employees must anticipate that they not only may be joint employers of the agency employees but also that they may have to deal with a bargaining unit that includes both its employees and the agency employees.

What if an agency employee working at the host’s facility and covered by the labor contract with the host is transferred to another employer? The other employer could not refuse to accept the employee because he/she is represented by a union at the host’s facility because the refusal would violate Section 8(a)(3) of the NLRA. The questions and complications seem endless.

If employers who use agency employees are not taking actions now to avoid the perfect storm that will be caused by the conjoining of the Board’s Browning-Ferris and the anticipated Miller & Associates decisions, the circle closed by the Board will be a noose.

Next up – reversal of the Board’s 1988 decision in DuPont Co that denied Weingarten rights to non-union employees. It’ll happen and non-union employers will be required to permit a union salt to be present during any investigative interview with an employee who requests it. All that has to happen is the right case to come before the Board as a vehicle.

By the way, there is no party who will be affected by the Miller & Associates decision. Miller & Associates employees are no longer used by the host employer. The Board’s decision would be purely advisory…something that is not permitted because it is beyond the authority of the Board, if anyone bothers to look at judicial history. So, maybe the case that will be used to reverse DuPont Co. will not have to be four-square either. Any excuse will do for this Board of activists..

Feeding Parasites

Just in case you have not noticed, the Labor Board has created a popular, new protected class – workplace complainers. Complainers may be a cancer in your workforce, but for the very reason they are a cancer, they are protected by the National Labor Relations Act. All that is necessary is that their complaint concerns some term or condition of their employment ( including how they are treated by their supervisor) and a “like” by another employee.

Whether it’s being discharged allegedly in retaliation for complaining or for violating a newly-found unlawful rule, such as “you must deal respectfully with all employees,” parasitic plaintiff’s lawyers are forsaking the civil rights agencies and finding a new way to extort undeserved severance pay from employers, the Labor Board. The ppls (predatory/parasitic plaintiff’s lawyers) don’t have to prove anything, just allege retaliation or unlawfulness of a rule in a way that is based on credibility and the Labor Board will accommodate by filing a complaint, taking over the prosecution and scheduling a trial within three months. Bingo!

Labor Board trials before an Administrative Law Judge are real trials with rules of evidence, witnesses, cross examination, transcripts, briefs and all of the other trappings. Most of all, they are expensive. A single employee Labor Board trial can easily cost an employer $50,000, let alone the cost of an appeal to an unsympathetic and biased Board.   It is no wonder why a ppl will file to get a quick hit – it’s too expensive for most employers to fight. It’s prudent business to settle.

If for no other reason, supervisors must be trained how to deal with the complainers and create a document trail that will successfully combat “credibility” cases.. HR professionals must take seriously the Board’s decisions that traditional codes of conduct and many new electronic communication and social media policies are unlawful. Paying attention matters. Not paying attention is expensive.

The Pope Is Coming to Philly

I am pleased to share with you a blog my colleague, Linda B. Hollinshead @lhollinshead1, and I collaborated on concerning the Pope’s visit to Philadelphia and the wage and hour issues it may cause.

We have been asked a lot of questions about the Pope’s visit to Philadelphia in terms of wage and hour and other laws. Here are the some of the questions and the general answers:

1. If we shut down for a day or two, do we have to pay exempt employees? The general answer is “yes.” However, you generally can require that the exempt employee use PTO to cover a day on which you shut down.

2. If we shut down for a day or two, do we have to pay non-exempt employees? The general answer is “no,” unless: (1) you have a policy that says you will pay; (2) there is collective bargaining agreement that obligates you to pay; or (3) the employee is paid on fluctuating work week basis. Reminder: the fluctuating work week is not recognized in Pennsylvania but it is in other states. Even if there no duty to pay, please think of employee relations since you must pay exempt employees.

3. Can you require an employee to work at home? Generally, yes. However, you don’t want to create “precedent” under the ADA to suggest that working at home is a viable option as a general rule. Document that this is “unique” situation and that allowing an employee to work at home does not mean the employee generally can perform the essential functions of his or her job at home. Additional considerations include confirming whether your workers compensation coverage covers work from home arrangements mandated by the employer and that you have sufficient IT support to handle system demand and the protection of your organization’s confidential information. The benefit of a few hours working from home may be outweighed by the risk of a security breach if employees send files to their home computers in order to have access Lots of nuances that go beyond this brief summary.

4. Can we make employees sleep on our premises or in the City knowing that they may not be able to get in and out of Philadelphia each day? The answer is generally “yes.” There may be legal exceptions, such as reasonable accommodations for medical reason. There also may be human reasons independent of the law, such as a single parent with no one else to take care of child.

5. Do you have to pay the non-exempt employee if you require that he or she stays on your premises? Under federal law, the answer is “yes.” However, there are limited exceptions under federal law for sleeping and certain other time. Please note there are not comparable exceptions under Pennsylvania law. General rule in Pennsylvania: you must pay for the entire time you require an employee to be on your premises. So be thoughtful on how much time you require a non-exempt to be on your premises and make clear freedom to do what and where they want outside of designated sleeping hours.

6. Do I have to pay non-exempt employees if I offer them the option to stay at a hotel in or near town at company’s pay but it is not a requirement? The answer should be “no” if you are clear that this is being offered solely for the convenience of the employee and there are no restrictions on when or where the employee must be at any time.

7. Do I have to pay non-exempt employees if I mandate that they stay at a hotel in or near town? The answer here is less clear. Although not absolute, a strong argument can be made that you have to pay only “extra” commute time (that is, checking in and out of hotel on first and last day). No matter what: make clear the employee is free to come and go and do what he or she wants, except for a limited number of sleeping hours.

8. What about union employees? Can we change the rules under the collective bargaining agreement (“CBA’) during the Pope’s visit? Where possible, try to work with the union as a business partner. If not, you will need to assess whether you can make changes to the CBA without the union’s agreement. Of course, every change differs but the answer is generally that, if CBA is on point, you cannot act inconsistently with it without union’s agreement.

9. What if an employee objects for religious reasons to working on any event you may plan for the celebration? Now, you have a different version of, the “Kentucky clerk.” You may need to consider allowing the employee to opt out due to sincerely held religious beliefs. But what if the employee’s job is special events? In other words, can an employee opt out of an aspect of the employee’s essential function? Answer: not entirely clear. It may depend on frequency. Compare the one-time nature of this event with relatively-more frequency of same-sex marriages in Kentucky.

While we hope this is of some help, we want to make clear that this is not legal advice pertaining to specific factual situations.

Follow @Jonathan_HR_Law on Twitter for more important employment law updates.

 

The Kentucky Clerk in Your Workplace

The Kentucky Clerk who has refused to issue marriage licenses to same-sex couples is going to jail.  She has tried to justify her refusal to perform her job on the ground that to do so would violate her religious beliefs as protected by the Constitution.

Good thing employers do not have to deal with this kind of issue.  Or do we?

By way of background, in Obergefell, the Supreme Court struck down Section 2 of The Defense of Marriage Act (“DOMA”).  More specifically, the Supreme Court held, in a 5 to 4 decision, that the constitutional right of marriage covers same-sex couples so that no state can deny them the right.

While the decision on its face applies only to states in terms of recognizing same-sex marriage, as a practical matter, for complicated legal reasons, employers generally will have to offer same-sex spouses the same coverage as opposite-sex spouses.  While employers with self-insurance plans may have a little more flexibility, there are substantial discrimination risks in treating same-sex spouses differently.  In this regard, the EEOC has taken the position that Title VII’s prohibition on sex discrimination covers sexual orientation.

With this background, we return to who may be your “Kentucky Clerk.”  It may be a human resources employee who handles employee benefits.

To continue reading, please click here.

9 Questions Employers Need to Answer Before Firing an Ashley Madison Customer

AshleyMaidson.com (“AM”) has been referred to as the premier website for married individuals seeking partners for extra-marital affairs. For the record, I know that only after reading about the recent hacking of it, discussed below!

I recommend you do not check that website at your home or work. There could be personal or professional consequences.

By way of background, in July, a group of hackers stole sensitive customer information from the infidelity website. This week, the hackers made good on their threat to post customer names on line.

What if you find out that one of your employees is an AM customer? Can you fire him or her? Do you want to fire him or her?

Okay, here comes the annoying lawyer-ism: The answer to both questions is “it depends.”

To read on, please click here.

12 Ways To Increase Gender Equality

I am pleased to share with you a blog I wrote for Talent Culture.

I confess I am tired of hearing about how we need to increase gender equality. No duh. How do you get there? I don’t know of any magic bullet but here are my 12 suggestions. Each of these could be a separate book, let alone a separate blog.

  1. Increase The Gender Representation On Your Board of Directors

Where the board of a company has at least one woman on its board, it is likely to crush the competition. Unlike in the employment context, you can specifically target women for positions on the Board. No discrimination issues.

To continue reading, please click here.

The “I Dislike You” Defense

A manager has an open position. He will need to work closely with the new hire.

Alan applies for the job.  The manager truly loathes him.  I could say it softer but that is the reality.

Alan has all the requisite skill, education and experience.  But the sound of Alan’s voice makes the manager’s skin crawl.

Based on his intense dislike for Alan, the manager does not want to interview him, let alone promote him. What do you do?

To continue reading, please click here.

Stop Talking About the Gender Confidence Gap

Stop talking about the gender confidence gap!

I keep hearing a lot about the “confidence gap”.  Premise: women are less confident than men.  I believe those raising the issue are well intended, but I worry about the constant drum beat on this issue for three reasons:

To continue reading this blog, originally posted on SHRM Blog, please click here.

Labor Costs May Soar for Entrepreneurs

Entrepreneurs should be paying close attention to proposed federal changes to the “white collar” exemptions of the federal minimum wage and overtime law, otherwise known as the Fair Labor Standards Act (or FLSA).

Changes that the Department of Labor (DOL) proposed earlier this month, if enacted, could cost entrepreneurs big.

To understand the proposals first requires understanding those five FLSA white collar exemptions. They are: executive (supervisory), learned/creative professional, administrative, outside sales and computer professional. Any employee who falls under one of these exemptions is ineligible for overtime. (An employee gets the benefit of federal, state or local law — whichever is best for him or her. This article focuses on federal law only.)

To continue reading, please click here.

What Will the Department of Labor Do Next?

I am pleased to share with you an article I wrote for the Corporate Counsel section of ALM.

On July 6 in the Federal Register, the U.S. Department of Labor published proposed changes to the Fair Labor Standard Act’s white-collar exemptions. Under federal law, these include the following categories: executive, administrative, professional, outside sales and computer professional. The last is not recognized under some state laws, but remember that employees always get whichever is the more protective between federal and state laws.

To continue reading, please click here.

Accommodating an Employee’s Religion Just Got Even More Complicated

I am pleased to share with you a blog I wrote for Entrepreneur

I have read, for the fourth time, the Supreme Court’s decision in EEOC v Abercrombie & Fitch and remain baffled. What is an employer to do?

Very briefly, in the case, the employee wore headscarves that are often worn by Muslim women. These scarves did not meet the ‘”look” A&F wanted. Managers there talked about their belief she might be Muslim, but never discussed the “look” issue with her.

Without getting caught in the legal weeds, the Supreme Court said A&F could be liable for religious discrimination by way of failure to accommodate, even though it only suspected the applicant’s religion and even though the applicant never requested an accommodation.

To continue reading, please click here.

10 Words or Expressions That Will Result in Sanctions at SHRM 2015 Annual Conference

shrmlasvegas

Here are my top 10 words or expressions that none of us should dare say at the Annual Convention under penalty of listening to Barry Manilow for 24 hours straight while reading the FLMA Intermittent regulations:

To read more, please click here.

Attack Bullying Without Being Attacked

This article was originally written for SHRM’s HR Magazine.

Vol. 60 No. 5
How to take down bullies without opening up your company to legal risk.
By Jonathan Segal 6/1/2015

Nobody likes a bully—but people often struggle to define exactly what bullying is. Like the former Supreme Court Justice Potter Stewart once famously said of obscenity, most people know it when they see it even if they can’t define it. The closest any state has come to addressing bullying is California, which has mandated training on “abusive conduct.” Yet even that law requires only training. It does not change California’s nondiscrimination laws to ban bullying per se. In California, bullying is still lawful unless it is based on prohibited factors such as race, gender, religion, national origin, age, sexual orientation or disability. The same is true under federal law and every state law.

In other words, it’s not unlawful to bully an individual merely because he or she is a competitor, for example, or to be an equal-opportunity bad manager who bullies everyone.

But while bullying isn’t unlawful, your workplace doesn’t need to stand for it. Unfortunately, it’s harder than you would think to create an anti-bullying policy because of the rights employees have under the National Labor Relations Act (NLRA), potential contractual rights, and the risk of conscious or subconscious bias.

So don’t get out your boxing gloves quite yet. Fighting bullying takes planning and fancy footwork.

State Legislation

Since 2005, legislation to make “abusive conduct” unlawful unrelated to any protected status has been introduced in approximately 27 states and two territories (Puerto Rico and the Virgin Islands). Virginia and Florida became the most recent states to entertain such a bill (both in 2015). So far, the legislation has failed across the board, even in states that are very protective of employee rights, such as California, Connecticut and Maryland.

In 2014, New Hampshire and Puerto Rico passed laws that would have prohibited abusive conduct without regard to protected status, but both bills were vetoed. That was the same year California mandated that supervisors receive training about abusive conduct without regard to protected status, although it didn’t make such behavior unlawful.

Having said that, I think we can anticipate that one of California’s plaintiffs’ lawyers will argue that the law reflects public policy and that any adverse action relating to bullying is unlawful. Watch for a wrongful constructive discharge claim—that is, “I was forced to quit because of the severe or pervasive bullying to which I was subjected in violation of California’s public policy.”

So, California employers should take the new training requirement very seriously. In fact, everyone should take bullying very seriously.

Difficult to Define

Bullying that is unrelated to protected group status is unlawful in many countries, including Canada. In some countries, such as Poland, the prohibited conduct is called “mobbing.” Knowing international law is important because many businesses have facilities outside the United States.

It’s hard to imagine anyone arguing in favor of bullying, so why has prohibiting it failed in the United States?

The primary reason is the language in many of the proposed bills is quite vague. For example, consider the definition of abusive conduct under a bill introduced in New York in January 2015: “ ‘Abusive conduct’ means acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature and frequency of the conduct, including, but not limited to: repeated verbal abuse such as the use of derogatory remarks, insults and epithets; verbal, nonverbal or physical conduct of a threatening, intimidating or humiliating nature; or the sabotage or undermining of an employee’s work performance. It shall be considered an aggravating factor if the conduct exploited an employee’s known psychological or physical illness or disability. A single act normally shall not constitute abusive conduct, but an especially severe and egregious act may meet this standard.”

The definition leaves much to interpretation. Is it a derogatory remark to say that someone is a weak performer? Is it intimidating to tell employees in a direct and cold way that their jobs are on the line if they don’t make necessary improvements?

As well-intended as these laws may be, the definitions they use could result in poor performers coercing managers into not managing them. Just as harassment claims are sometimes made when there is no harassment, we should anticipate the same with bullying.

In fact, anti-bullying legislation likely would lead to a cottage industry of litigation. What one person may view as slightly raising his voice to make a point may be perceived by another as yelling.

Real Impact

Still, we cannot ignore that a large percentage of employees claim to have been bullied. While I have seen different numbers, CareerBuilder.com pegged it at 35 percent in 2012.

The impact of bullying can be substantial on the victim, both emotionally and physically. It can also have an adverse impact on witnesses who fear they will receive the same treatment.

And, of course, bullying hurts companies. While it may increase productivity in the short run, it will hurt it over the long haul due to the resulting lack of engagement and increased turnover. Who wants to work where they are demeaned?

Managing Legal Risks

In drafting policies that prohibit bullying, employers need to consider the following material legal risks:

NLRA risks. An anti-bullying policy that is too general may be deemed as chilling protected concerted activity under the NLRA. As we all know, the National Labor Relations Board has attacked many policies that are designed to increase civility in the workplace as being unlawful. (Please, employers: enough with this desire for civility!)

To address this problem, provide specific examples of what may and may not constitute bullying behavior so that a reasonable employee would not deem it to cover protected concerted activity.

The inclusion of some examples of what may constitute bullying will give you a strong contextual defense that a reasonable employee would not perceive the policy as prohibiting protected concerted activity.

Contractual risks. An anti-bullying policy may create quasicontractual obligations on the part of the employer. If the employer says it will not tolerate bullying, a court may say it must live up to its “commitment.”

Of course, any policy should be part of an employee handbook that clearly states that the handbook is not a contract. The strength of the necessary disclaimer varies from state to state. But even that may not be enough.

Make clear in the policy that the definition of prohibited bullying is determined by the company in its sole discretion. By stating that bullying is what the company says it is, you reduce your risk of not adhering to your own policy.

Bullying Behaviors

A policy prohibiting bullying should outline examples of behavior that might constitute bullying, such as:

  • Mean-spirited “joking” designed to exploit an employee’s perceived weaknesses.
  • Discussing an employee’s performance problems with the employee’s peers or subordinates.
  • Yelling at an employee, whether alone or in front of others.
  • Encouraging others to avoid an employee.
  • Physical intimidation when speaking with an employee.
  • Sabotaging an employee’s work.
  • Insulting an employee’s family or friends.

Also, do not state definitively that any examples you include constitute bullying. Instead, say they “may be” bullying depending on context, severity, pervasiveness and other factors as determined by the employer in its sole discretion.

Bias.

Finally, an anti-bullying policy must be implemented in light of the potential for conscious or unconscious bias.

We know that a woman who is assertive—but no more assertive than a man—is often branded with a scarlet “B.” She may now be a double “B.”

There could be bias toward men, too. For example, if a man uses positional rather than interpersonal influence, he may be called a bully.

Train, Train, Train

While a policy is a good start in addressing workplace bullying, it is not enough. Supervisors need to be trained on what may constitute bullying, either in a separate training session or as part of training on performance management and harassment—or both.

Regardless, the policy needs to make clear that supervisors must do more than discourage bullying. They must respond proactively to what may be bullying engaged in by subordinates or even customers and other third parties.

Sound familiar? It should. The same admonition should be provided in training on unlawful harassment.

Another aspect of harassment training also applies to bullying: Avoid the label and focus on the inappropriateness of certain behaviors.

The label “bully” carries with it an appropriate stigma, so an employee who is labeled a bully may get defensive. The employee is more likely to make behavioral changes if he or she is told that specific behaviors are inappropriate and must cease. Someone can argue with whether yelling at a person constitutes bullying, but it is much harder to contend that such behavior is acceptable when no label is attached to it.

Of course, if we want to make sure that we have bully-free workplaces, we must evaluate employees, particularly leaders, on how they treat others. Employees who engage in bullying or other disrespectful behavior should pay a price on their evaluations and perhaps in their compensation.

Indeed, sometimes bullying should be cause for termination. Firing a bully, even if that employee is valued for what she contributes to the bottom line, may send a more powerful message than any training could provide.

 

Nobody likes a bully—but people often struggle to define exactly what bullying is. Like the former Supreme Court Justice Potter Stewart once famously said of obscenity, most people know it when they see it even if they can’t define it. The closest any state has come to addressing bullying is California, which has mandated training on “abusive conduct.” Yet even that law requires only training. It does not change California’s nondiscrimination laws to ban bullying per se. In California, bullying is still lawful unless it is based on prohibited factors such as race, gender, religion, national origin, age, sexual orientation or disability. The same is true under federal law and every state law.

In other words, it’s not unlawful to bully an individual merely because he or she is a competitor, for example, or to be an equal-opportunity bad manager who bullies everyone.

But while bullying isn’t unlawful, your workplace doesn’t need to stand for it. Unfortunately, it’s harder than you would think to create an anti-bullying policy because of the rights employees have under the National Labor Relations Act (NLRA), potential contractual rights, and the risk of conscious or subconscious bias.

So don’t get out your boxing gloves quite yet. Fighting bullying takes planning and fancy footwork.

State Legislation

Since 2005, legislation to make “abusive conduct” unlawful unrelated to any protected status has been introduced in approximately 27 states and two territories (Puerto Rico and the Virgin Islands). Virginia and Florida became the most recent states to entertain such a bill (both in 2015). So far, the legislation has failed across the board, even in states that are very protective of employee rights, such as California, Connecticut and Maryland.

In 2014, New Hampshire and Puerto Rico passed laws that would have prohibited abusive conduct without regard to protected status, but both bills were vetoed. That was the same year California mandated that supervisors receive training about abusive conduct without regard to protected status, although it didn’t make such behavior unlawful.

Having said that, I think we can anticipate that one of California’s plaintiffs’ lawyers will argue that the law reflects public policy and that any adverse action relating to bullying is unlawful. Watch for a wrongful constructive discharge claim—that is, “I was forced to quit because of the severe or pervasive bullying to which I was subjected in violation of California’s public policy.”

So, California employers should take the new training requirement very seriously. In fact, everyone should take bullying very seriously.

Difficult to Define

Bullying that is unrelated to protected group status is unlawful in many countries, including Canada. In some countries, such as Poland, the prohibited conduct is called “mobbing.” Knowing international law is important because many businesses have facilities outside the United States.

It’s hard to imagine anyone arguing in favor of bullying, so why has prohibiting it failed in the United States?

The primary reason is the language in many of the proposed bills is quite vague. For example, consider the definition of abusive conduct under a bill introduced in New York in January 2015: “ ‘Abusive conduct’ means acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature and frequency of the conduct, including, but not limited to: repeated verbal abuse such as the use of derogatory remarks, insults and epithets; verbal, nonverbal or physical conduct of a threatening, intimidating or humiliating nature; or the sabotage or undermining of an employee’s work performance. It shall be considered an aggravating factor if the conduct exploited an employee’s known psychological or physical illness or disability. A single act normally shall not constitute abusive conduct, but an especially severe and egregious act may meet this standard.”

The definition leaves much to interpretation. Is it a derogatory remark to say that someone is a weak performer? Is it intimidating to tell employees in a direct and cold way that their jobs are on the line if they don’t make necessary improvements?

As well-intended as these laws may be, the definitions they use could result in poor performers coercing managers into not managing them. Just as harassment claims are sometimes made when there is no harassment, we should anticipate the same with bullying.

In fact, anti-bullying legislation likely would lead to a cottage industry of litigation. What one person may view as slightly raising his voice to make a point may be perceived by another as yelling.

Real Impact

Still, we cannot ignore that a large percentage of employees claim to have been bullied. While I have seen different numbers, CareerBuilder.com pegged it at 35 percent in 2012.

The impact of bullying can be substantial on the victim, both emotionally and physically. It can also have an adverse impact on witnesses who fear they will receive the same treatment.

And, of course, bullying hurts companies. While it may increase productivity in the short run, it will hurt it over the long haul due to the resulting lack of engagement and increased turnover. Who wants to work where they are demeaned?

Managing Legal Risks

In drafting policies that prohibit bullying, employers need to consider the following material legal risks:

NLRA risks. An anti-bullying policy that is too general may be deemed as chilling protected concerted activity under the NLRA. As we all know, the National Labor Relations Board has attacked many policies that are designed to increase civility in the workplace as being unlawful. (Please, employers: enough with this desire for civility!)

To address this problem, provide specific examples of what may and may not constitute bullying behavior so that a reasonable employee would not deem it to cover protected concerted activity.

The inclusion of some examples of what may constitute bullying will give you a strong contextual defense that a reasonable employee would not perceive the policy as prohibiting protected concerted activity.

Contractual risks. An anti-bullying policy may create quasicontractual obligations on the part of the employer. If the employer says it will not tolerate bullying, a court may say it must live up to its “commitment.”

Of course, any policy should be part of an employee handbook that clearly states that the handbook is not a contract. The strength of the necessary disclaimer varies from state to state. But even that may not be enough.

Make clear in the policy that the definition of prohibited bullying is determined by the company in its sole discretion. By stating that bullying is what the company says it is, you reduce your risk of not adhering to your own policy.

Preparing for Imminent DOL Rules

This blog was originally published for SHRM’s SHRM Blog.

We have heard it before. The proposed regulatory changes to the white collar exemption are “imminent.” And, then they were delayed.

Well, the regulations were sent by the DOL to the OMB. The conventional wisdom is that they will be published on June 18, 2015 (I suspect so the DOL can say “Spring”).

We know the purpose and effect of the proposed regulations will be to increase the number of individuals who are non-exempt. At a minimum, exempt status will carry a heavier price tag.

The federal minimum weekly salary is going up—the only question is how high. My prediction: $1,000 per week. My last prediction: 2009 would be good year for stocks.

To continue reading, please click here.

 

Why Banning Salary Negotiations Won’t Close the Gender Pay Gap

I am pleased to share with you a blog I wrote for Entrepreneur.

The Washington Post recently posted an article by Laura J. Kray, professor of leadership at the University of California, Berkley, Haas School of Business, entitled: “The best way to eliminate the gender pay gap? Ban salary negotiations.”

The sub-title: “At the bargaining table, women are in a non-win situation.”

In her article, Kray discussed the announcement last month by Ellen Pao, interim chief executive of Reddit, to ban salary negotiations at the social media company. Her stated goal: to eliminate the persistent disadvantage that women have at the bargaining table.

As a lawyer who has worked for more than 20 years helping companies fight gender inequality, I respectfully and strongly disagree. Here’s why:

To continue reading, please click here.

Don Draper teaching the world to sing in perfect harmony

I am pleased to share with you this op-ed piece originally published by the Philadelphia Business Journal.

It is hard to believe that Mad Men is over. It was more than just a television show. It was a cultural phenomenon.

For many of us, it was not enough to watch the show just once. We needed to re-watch episodes to make sure we did not miss any of the nuances.

As an employment lawyer who represents management, I was particularly intrigued. Virtually every episode could be the subject of a human resource seminar.

To  read the rest of the article, please click here.

Mad Men: End of an Era?

I am pleased to share with you a blog I wrote for SHRM Blog.

Well, “Mad Men” is no more.

As AMC marketed it, we have come to an “end of an era.” Or have we?

While it was only a television show, or so people try to tell me, the workplace implications resonated with so many of us in the HR/business community. Perhaps that is because, while much has changed, some things are still painfully similar.

Here are six themes from Mad Men which are as relevant today as they were in the “Mad Men days.” Knowing that not everyone watched the show (don’t understand that!), I will do my best to speak in broad strokes and not get into the Mad Men minutia of which life is made.

To continue reading, please click here.

Copernicus Was Wrong

I am pleased to share with you a blog I wrote for Talent Culture.

Copernicus said the earth revolves around the sun. Copernicus was only partially correct.

The earth does not always revolve around the sun. In some workplaces, the earth revolves around an employee. Yes, I can tell that each of you is thinking of a particular employee. Let’s hope no one is thinking of you!

To read the full article, please click here.

Remembering the Holocaust

It is again with sadness and hope that I share with you a commentary on Holocaust remembrance. This op-ed piece was published by the Philadelphia Inquirer.

Once again, it is Holocaust Remembrance Week. While it is 70 years since the carnage ended, it is still so recent that some of the survivors walk among us.

Some thoughts about this day come to mind. First and foremost, we think of those slaughtered by the Nazi machine – approximately 11 million in all, including millions of children.

To continue reading, please click here.

Holocaust Remembrance Week: I Remember

It is with both sadness and hope that I post a blog I write for the SHRM Blog on Holocaust Remembrance. The link to the original artical can be found here.

5 Ways to Manage ‘Mad Men’-Era Sexual Harassment

I am pleased to share with you the latest blog I wrote for Entrepreneur.

It is hard to believe it is almost the end of the Mad Men era. I increasingly fear that Don may face the same fate as Rachel Menken Katz (may she rest in peace).

For now let’s focus on one aspect from Sunday’s episode of Mad Men. The conversation between Joan and Peggy and three men who work for the parent company, McCann Erickson, with regard to their client, Topaz pantyhose.

To continue reading, please click here.

This blog should not be construed as legal advice or as pertaining to any factual situations.

April Fools’ News

I am pleased to post a blog I wrote for SHRM Blog.

Now, it’s time for headlines of the latest news:

In “It Will v Never Happen,” the NLRB stated that “management rights must be respected and it is not for the NLRB to tell employers how to run their businesses.  We decline the union’s invitation to do so.”

To read this article in its entirety, please click here.

This blog is not legal advice and should not be construed as applying to specific factual situations.

What Accommodations Must Be Made for a Pregnant Employee?

I am pleased to share with you my most recent blog for Entrepreneur on:
(a) the impact of the recent decision by SCOTUS on excluding pregnant employees form light duty programs and
(b) pregnancy discrimination and accommodations generally

To read the full article, please click here.

Things in the blog should not be construed as legal advice or as relating to factual situations.

Waiting for the DOL

With all due respect to the DOL:

  1. DOL forms to be used under FMLA would have expired at the end of last month, but they have been modified so they are now effective until March 31, 2015. Will new forms be published by March 31, 2015? If not, we recommend that you continue to use the current forms published by the DOL (which can be found on its website with the new expiration date). Best to use the most recent government document! Forms with March 31, 2015 expiration date: http://www.dol.gov/whd/forms/.
  2. The EEOC has asked the DOL to modify its forms, among other reasons, to comply with GINA. The DOL forms do not include the appropriate GINA disclaimer. http://www.eeoc.gov/eeoc/foia/letters/2014/gina_fmla_forms_11_10.html
  3. Reminder: attach the GINA disclaimer not only to requests for medical information under the FMLA but also to other requests for medical information, for example, requests for medical information to support a reasonable accommodation.
  4. The DOL is working on proposed new regulations with regard to the White Collar Exemptions under the FLSA. Originally, there was discussion about an October publication. Then, the DOL said February. Now, it is unclear when.
  • Jennifer Brand, Associate Solicitor of Labor, spoke at the American Bar Association Federal Labor Standards Legislation Committee’s Mid-Winter Meeting on February 26.
  • It has been reported that Ms. Brand acknowledged that the proposed changes to the white-collar exemptions would not be published last month as the DOL had previously said. She further is reported to have stated that they are “not imminent.”
  • We can expect the minimum salary to rise significantly and for it to be harder to meet the “primary duty” test. The only questions are how much higher and how much harder.
  • We will continue to track this issue.

Pardon the formality, but this update should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

“You’re The Best”

This blog was originally posted for SHRM Blog. To view the original posting, please click here.

We all know the importance of recognition and appreciation. In this context, some people say “you’re the best.”

Words matter and these words are troublesome for a few reasons. First and foremost: how is the recipient to respond?

If you say nothing, either you have ignored what was intended as a compliment, or your silence may be seen as “why are you telling me that which is axiomatic?”

If you say “thank you,” are you not effectively saying that you think you are the best? A little hubris? And, by a little, I mean a lot.

To read further, please click to full article here.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

Lust and Love in the Workplace

I am pleased to post my latest blog from Entrepreneur.

Let’s face it. Almost every businessperson works day and night.

Is your iPhone next to your bed? Do you check your email before your sleep?

So as work cascades into every aspect of life, it is not surprising that personal issues (including matters romantic and sexual) also cascade into the workplace. .

When I have talked with managers about the risks of supervisory-subordinate dating, many have said, “If I can’t date people with whom I work, I won’t be able to date at all because I am always working.:

Love happens as a result of proximity, common interests and shared passions.

Around Valentine’s Day, many employees will be sending cards to workplace paramours.

But love and lust are in the workplace air every day. So here are six suggestions to minimize the risk that office relationships will turn into workplace litigation:

To read on, please click here.

This post should not be construed as legal advice or as pertaining to specific factual situations.

A Valentine’s Workplace Tale

I am pleased to post my latest blog for SHRM Blog on the dangers of recognizing Valentine’s Day in the workplace.

Well, there are now fewer calls to the phone banks of plaintiffs’ lawyers’ as most problems resulting from holiday parties already have been raised. But plaintiffs’ lawyers have no fear: there will be a salvo of calls after Valentine’s Day. And that reminds me of a story.

It is 9:00 a.m. A secretary reports to her desk. Waiting for her is a sealed card.

To read on, please click here.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

Care About Employees, But Be Careful

I am pleased to share with you my latest blog written for Talent Culture about the importance of caring for your employees without taking it too far.

For the full article, please click here.

This blog is not legal advice and should not be construed as applying to specific factual situations.

10 Tips to Fight Gender Discrimination

This article was originally published for SHRM’s HR Magazine.

Everyone, Lean In
Vol. 60 No. 1
Gender discrimination is alive and well. Here are 10 ways to fight it.

Sheryl Sandberg got people talking about gender equality at work with her best-seller, Lean In: Women, Work, and the Will to Lead (Knopf, 2013)—but why should women have to do all the leaning?

Every organization—and that means the men and women who run companies—must do more to ensure that women have an equal opportunity to lead.

Yes, we have come a long way since 1964, when gender discrimination became unlawful, but we still have a long way to go.

Below I offer 10 ways organizations can increase gender equality from the top down.

1. Get Women on Boards

Greater representation of women on boards of directors is critical. Boards with at least one woman are likely to crush the competition, according to a Business Insider article. Diversity matters!

Having women on boards can also call attention to the elephant in the room at many companies—that there is a boys’ club at the top or at least in certain silos. Power makes it easier to speak up, regardless of gender.

In addition, the presence of women on the board sends a powerful message to executive women and customers that the company “gets it.”

Finally, Title VII of the Civil Rights Act of 1964 and most state laws do not apply to board positions, where there is no employment status. Therefore, employers can do what they generally cannot do for senior leadership positions—that is, take gender into consideration when filling board positions or even reserve a board position for a woman.

2. Educate Senior Leadership

Both the board of directors and the senior leadership team must understand the legal issues associated with gender discrimination (see sidebar).

Training should also emphasize the business benefits of gender equality, including the talent imperative, connection with and access to customers, diversity of ideas, and supplier diversity. Where there is gender diversity among senior leadership, companies outperform their competitors.

3. Hire and Promote

To increase gender (and other) diversity of the applicant pool, work to:

  • Ensure that the minimum job requirements are not so high that they exclude women simply because this group has been denied opportunities in leadership until relatively recently. This does not mean lowering standards but rather assessing them more realistically.
  • Increase the diversity of the applicant pool through general and targeted recruiting. Word-of-mouth is not enough.
  • Distribute applications to hiring managers without names. Consciously protect yourself from your unconscious bias, which brings us to …

4. Fight Biases

The use of diverse hiring teams that have received appropriate training should help to ensure that neither conscious nor unconscious gender bias plays a part in decision-making. Particular attention should be paid to avoiding:

  • “Like-me” bias, or hiring managers’ preference for candidates who resemble them. Note that hiring based on whether someone would be a “good fit” can mask unlawful “like-me” bias.
  • Double standards. What’s considered commendably assertive in a man should not be considered unacceptably aggressive in a woman.
  • Gender stereotyping. Guard against impermissible assumptions about women who have or are perceived likely to have children.
  • Discrimination against men. Employers can focus on differences in experiences, perspectives, contacts and styles. However, absent a remedial purpose, narrowly defined, employers generally cannot consider gender in hiring decisions, even when the goal is laudably to increase diversity.

5. Evaluate Work Assignments

Critically evaluate your organization’s work assignment systems to ensure that the work is being distributed fairly and equitably and not based on personal relationships.

The importance of the assignment process cannot be overemphasized. It often determines who has the experience and the connections to rise to the top based on merit. Plum assignments:

  • Increase necessary experience.
  • Grant exposure to the senior leadership team and sometimes the board.
  • Help forge customer/client relationships and the personal return on investment that goes with it.

6. Show Them the Money

We have a gender gap when it comes to pay. It is shrinking, but it is still there.

There are fair questions about whether the gap is solely due to gender. Taking time off to raise a family, whether you are male or female, may play a role.

Let’s assume the gap is 10 percent. (I believe it is higher.) How many men would say “no big deal” to a 10 percent reduction in salary? I know I wouldn’t.

Gender gaps in compensation not only can be attacked in litigation but also can result in less engagement by talented women. So assess and correct areas where gaps cannot credibly be explained; consider conducting the analysis initially under privilege so that plaintiffs’ lawyers cannot take advantage of your good efforts.

7. Practice Social Inclusion

Social inclusion is a big part of business inclusion. In fact, I bristle at the term “social inclusion” because I think it diminishes its importance.

Everyone should make a conscious effort to ensure that social inclusion is, well, inclusive.

For example, there are women who drink and men who don’t. But if the focal point of social inclusion is the local bar after work, more women than men may be excluded either because of caregiver responsibilities or because they want to avoid what they fear they may see.

Also remember that social media is a form of social inclusion and, therefore, business inclusion. Think of the message that is sent if a leader invites his male reports, but not his female reports, to connect with him on LinkedIn.

8. Help with Work/Life Management

Helping employees with the management of work and personal responsibilities is particularly important to those who are primary caregivers, whether they are involved in elder care, child care or both. While more men are (thankfully) leaning in at home, women still are more likely to have heavier burdens in this area.

To help employees manage work and personal commitments:

  • Consider whether the number of work hours you demand allows for a personal life. Individuals with heavy caregiver responsibilities may not accept “unreasonable” hours.
  • Focus primarily on the bottom line, not face time. It should not matter whether someone finishes a report between 5 and 7 p.m. or 10 p.m. and midnight. What matters is that the report is stellar and on time.
  • Be more receptive to telecommuting, at least sometimes for some positions. Yes, on that work-at-home day, personal and work responsibilities may rotate as the focus. But that may be necessary given the long hours every other day.
  • Consider offering support for child care and elder care.

9. Evaluate the Evaluators

In my experience, the evaluation process often benefits men as a result of unconscious bias. We need to evaluate the evaluators!

Again, look for “like-me” bias: “He does things the way I do things, so his method is better than others.”

Also look for weak praise (“nice” rather than “strong client relations skills”), code words (“lack of commitment” for women who are juggling work and family commitments), and double standards and criticisms that focus on the woman as opposed to her performance.

10. Include Men

Sandberg states that there is not enough male talent to serve an organization’s leadership needs. Conversely, we cannot solve the issue of gender bias by having only women focus on it. Men have valuable input, too, that must be considered.

Further, it is unfair to place the burden on women only. Women in senior management positions who are asked to focus heavily on women’s initiatives may not have the time they need to focus on their customers.

Of course, to get men involved we must do more than enlighten and invite them. We must support them, too.

This blog is not legal advice and should not be construed as applying to specific factual situations.

8 New Year’s Resolutions for HR

I am pleased to post my latest blog for SHRM Blog. Here are eight New Year’s Resolutions all of us in HR should make this year. http://www.weknownext.com/blog/8-new-years-resolutions-for-hr

This article is not legal advice and should not be construed as applying to specific factual situations.

Happy New Year And Au Revoir Bad Precedent

I am pleased to post a blog I wrote for SHRM Blog. The New Year offers the perfect time to minimize the risk of bad precedent by cleaning up some of your policies and practices.

To read the full article, please click here.

This article is not legal advice and should not be construed as applying to specific factual situations.

The FINALE: The Holiday Tale By the Jewish Guy Who Wears A Chai

For the past few years, we have sent you the ongoing saga: The Holiday Tale By the Jewish Guy Who Wears A Chai. This year, we send you the conclusion of the Holiday Tale with some new problems and additional tips to minimize your risk: http://www.weknownext.com/blog/the-finale-the-holiday-tale-by-the-jewish-guy-who-wears-a-chai

We hope that you can enjoy this wonderful time of the year without having the holiday cheer diluted by unnecessary legal risk or political correctness run amok. Thank you to SHRM Blog for publishing the series.

Of course, this should not be construed as legal advice or as pertaining to specific factual situations.

Pets for Vets

We owe so much to the men and women who have fought for our country. In addition to the many who have died, many others come home with physical and emotional disabilities. Pets for Vets helps heal the emotional wounds of military veterans by pairing them with a shelter animal that is specially selected to match his or her personality, giving both a second leash on life.

I am pleased to post an article I wrote for ALM’s Legal Intelligencer on Pets for Vets:  http://at.law.com/petsforvets.

 

Are You Too Risk Averse On Social Media?

I am please to post an article I wrote for SHRM’s HR Magazine as part of a point-counter point on use of social media in the hiring process.  If done prudently and carefully, the legal risks can be minimized and the business benefits maximized.

This article can be found here.

Holiday Celebrations: 10 Ways to Minimize Legal Hangovers

I am pleased to post an article I wrote for Entrepreneur on ten (10) issues to focus on now so that your holiday celebrations in November and December don’t lead to January and February claims: http://www.entrepreneur.com/article/239718

I will be following up this blog in the near future with my last installment of the Tale of the Jewish Guy Who Wears A Chai that with contain nuances to consider and a “little” sarcasm, too. It will be published by SHRM Blog.

This blog does not constitute legal advice, pertain to specific factual situations or establish an attorney client-relationship.

Happy Thanksgiving (almost)!

Honoring Our Vets (With Support From Our Animal Friends)

I am pleased to post my Veterans Day blog, Honoring Our Vets (With Support From Our Animal Friends). The blog was published by SHRM Blog and can be found here.

Thank you SHRM for all you do to support our Veterans.

NLRB TESTS ITS STATUTORY AUTHORITY…AGAIN…AND SUGGESTS MORE TO COME

Admittedly, HTH Corp, operator of the Pacific Beach Hotel in Honolulu, is a recidivist when it comes to unfair labor practices.  In the past decade, the Board has cited it for discharging an employee for union activity, maintaining an overly broad solicitation policy, bad faith bargaining, unilateral implementation of wage and benefit increases and multiple instances of retaliation for union activites.  Despite these rulings and the injunctions enforced by the federal courts, HTH still has not complied with the remedial and cease and desist orders of the Board. 

“By their actions, their words, and their contempt of court, the respondents have made plain their persistent indifference toward their responsibilities under the act,” the Board stated. 

 Finding that the company’s violations “have been severe and pervasive…notwithstanding the board’s enforcement efforts,” the Board ordered HTH to pay the costs incurred by the Board and the union in pursuing the unfair labor practice allegations in the case before it.  In addition, the Board ordered the company to pay the union’s costs of bargaining after the last violations and the union’s costs of meetings and communications with employees about alleged the unfair labor practices, the costs of investigating the alleged violations and the costs of preparing the various submissions to the Board, even those associated with filings that were voluntary.

In strong dissents, the two Republican Members of the Board, while endorsing the majoirity’s anger at the conduct of the company in defiance of the Board’s actions, argued that the requirement to pay the costs of the Board and the union associated with the unfair labor practices was beyond the statutory authority of the Board and were punitive rather than remedial in nature.

Bad cases make bad law and this is a bad case.  The expansion by the Board beyond its statutory authority to order remedies, while perhaps morally justified in this case, is bad law.  In no small sense, it is a toe under the tent and the level of egregiousness justifying such extraordinary remedies will likely, with the current Board, creep lower and lower until it finally begins to affect employers guilty of far less obrobrius and pervasive conduct.

As disturbing as the incursion of the Board beyond its statutory authority in this case may be, by far the most significant and alarming aspect of this decision is the Board’s suggestion that, given the right case, it will order the payment of front pay to employees as an alternative to reinstatement to employment as a remedy.  Such an order would be a panzer strike through of the lines of statutory authority given to the Board by Congress. 

Hopefully the “right case” for such an expansion of authority will not present itself, but, with a Board majority on the look-out for one, you can bet it may be soon.

Subtle Bias: Micro-Inequities and Micro-Aggressions

This article was originally published for SHRM Blog and can be found here.

I am pleased to include a link to an article I wrote last month for Entrepreneur on subtle bias: How Entrepreneurs Can Spot Subtle Bias

The focus is on what I collectively call “micro-indignities”: micro-inequities and micro-aggressions.

There are often are complex definitions for these terms. But the definitions can be simplified.

Generally speaking, a micro inequity is a slight that demeans or marginalizes the recipient.

Generally speaking, a micro aggression is an act that stereotypes or denigrates the recipient.

In my prior article for Entpreneur.com, I provided a few examples based on gender, race and ethnicity, In this blog, I restate them and include many more.

My recommendation is that these types of micro-indignities be included in management training to maximize inclusion and to minimize employees’ feeling marginalized or demeaned and responding to same by legal or other means.

Micro-inequities tend to apply without direct regard to the object’s EEO identity.

A few examples:

  • The leader says good morning to everyone but one person.
  • A manager repeatedly ignores the existence of a colleague in the elevator.
  • A group of employees go out for coffee or drinks after work and leave one person on the team consistently behind.
    In these cases, the micro-inequity may or may not relate to an employee’s membership in a protected group. Even if it is not, it is still a problem. But, in some cases, it does relate to protected status, whether the result of conscious or unconscious bias.

Micro-aggressions are almost always specific to an individual’s EEO identity.

Here are some examples:

  • I went to see a woman doctor. Scrap the woman; her gender is irrelevant.
  • I did not know you like white music (said to an African American). What is white music? I thought Bach was appreciated by diverse groups.
  • You don’t sound black. You mean I don’t sound like your negative stereotype?
  • To a woman of color: you are so articulate. And you seemed so surprised.
  • You don’t look Jewish. Perhaps you can educate me on what Jewish people look like?
  • He is Christian, but very open-minded. Thank you for showing me how closed your mind is.
  • It’s great you don’t have any accent (to a Korean American). Well, since my great grandparents came here from Korea, I am not sure why I would.
  • How young are you (to someone age 75)? How ageist and patronizing are you?
  • I never would have guessed you were gay. Well, perhaps stop guessing.
  • You have a lot of energy for an old guy. And self-restraint too, because I am going to bite my tongue, kid.
  • Isn’t it nice that you are helping your wife out with the kids at home? I don’t need your validation. Plus, they are my kids, too.
  • You are no shrinking violent. And I mean that as a complement. Well, I am a COO so of course I am no shrinking violent. Your comment was sexist. I mean that as a compliment, too, of course, assuming you define compliment to mean disgust.
  • You are doing such a great job (to a disabled employee who is doing no better than anyone else.) This one is said with a condescending tone, as if,” wow.” And, by condescending, I mean talking down to someone.
  • I thought that way when I was young. Just because we think differently does not mean your thinking has evolved beyond mine!
  • Are you ladies going shopping at lunch? Will you guys be shaving your knuckles?

Sadly, I could go on and on. But I think you get the picture. In many of the examples given, the individual thinks he or she is paying a compliment. And that, my friends, is what makes it all the worse. So address this in training so that these types of micro-indignities diminish, if not disappear.

These are my views only and are not intended as legal advice.

DMi Webinar: What Employers Need to Know About Ebola for Now

Duane Morris Institute along with Jonathan A. Segal would like to extend an invitation to our complimentary webinar on the Ebola virus. This will be a fast paced, 30 minute webinar. We want to help you prepare for what we hope will not occur without fomenting panic.

Thursday, November 13, 2014 3:00 – 3:30 pm EST

To Register for this Webinar, please click here.

The World Health Organization has declared the Ebola outbreak in parts of West Africa an international health emergency. As the epidemic has hit closer to home, employers are increasingly asking: What should I do? What can I do? This webinar will discuss:

  • The current status of the Ebola outbreak
  • How transmission is believed to occur
  • The symptoms of Ebola
  • Steps to minimize transmission in the workplace
  • Whether and how to impose travel restrictions
  • Whether and how to impose restrictions on employees returning from the epicenter of the epidemic
  • How to respond to an actual or suspected case of Ebola
  • What to do if employee refuses to work with or near someone they believe may have Ebola
  • Contingency planning, including telecommuting
  • Employer responsibilities under OSHA
  • Employee rights under the ADA and FMLA
  • NLRA implications with regard to changes affecting union employees
  • Special rules for healthcare workers
  • Ebola racism: potential discrimination and harassment against West Africans

As this webinar is free for clients of Duane Morris and guests of Duane Morris Institute, registration will be limited. Please sign up early as we expect this event to sell out.

Nothing in this webinar shall be construed as legal, medical or infection control advice.

#Nextchat: Ebola and the Workplace

Please join @weknownext at 3 p.m. ET on October 22 for #Nextchat.  We’ll chat about what employers are doing now regarding #Ebola.

To get the full SHRM Blog on the topic, please click here.

Q1.  What kind of conversations are taking place in your workplace about the Ebola virus?

Q2.  What kind of communications are you planning in your workplace regarding the Ebola virus?

Q3. Are you sharing prevention information regarding Ebola with your employees and how?

Q4. What kind of restrictions are you imposing on work-related travel due to the Ebola virus?

Q5. Do you have a policy in place for those traveling and returning from the epicenter of the Ebola virus?

Q6. Have you or will you be creating a plan or procedure for screening employees for Ebola?

Q7. How do the ADA and FMLA affect employees who have or may have Ebola or wish to care for those who do?

Q8. How do we ensure that we protect our workplaces without violating Title VII or other workplace discrimination laws?

What Employers Need to Know About Ebola for Now

I share with you my latest blog for Entrepreneur, please find the original publication here.

Stay tuned for a DMi webinar on the topic, coming soon.

This article is not legal advice and should not be construed as applying to specific factual situations. Also, this blog should not be considered as medical advice.

Documentation Dangers

I am pleased to post article I wrote for SHRM’s HRMagazine on some common danger zones in disciplinary documentation. Please see below. Thank you.

Sometimes I hear people say “document, document, document” as if that were the answer to all problems. Were that true, wouldn’t we all just document and spend money on our mission and employees instead of litigation?

Of course documentation is important. But bad documentation is worse than no documentation at all. The content of your paper trail—including word choice—is key.

Plus, timing is critical. There are times when documentation may actually increase your legal risk.

Why Documentation Matters

We tell our employees how much we love them in our handbooks. Then we remind them that they are at-will—that is, that we can fire them at any time, with or without cause or prior notice, as long as the reason is not discriminatory.

Well, if an employee is at-will, why do we need documentation? I am sure each of you has had a manager ask that indignantly.

As a human resource matter, the goal of performance management is not to create a record that can withstand attack but to help an employee improve so that he or she has no need to attack. Documentation helps employees to focus on areas for improvement.

As a legal matter, if an employee is let go, documentation helps to show that the reason you are providing is a legitimate one that you have articulated and not a post-termination pretext. Plus, no matter what the legal theory may be for attacking the discharge, juries consider fairness. Fairness always matters, and documentation increases actual and perceived fairness.

Counterproductive Documentation

Another of my favorite expressions is “consistency, consistency, consistency.” Were it that simple, would so many lawyers on both sides of the litigation aisle have summer homes?

The most common equal employment opportunity charge for the last few years has been retaliation. Sadly, sometimes when you provide an employee with notice of deficiencies and an opportunity to improve reflected in disciplinary documentation, he or she plays legal chess and tries to argue that any adverse action is retaliatory. The employer very well may prevail, but not without incurring the time and cost of a fight.

Sometimes, it may make sense to terminate an employee without prior notice. Consider a situation where the employee has been employed for only six months and has not taken any leave, made any complaints or had any medical problems. If the person who hired the employee is the same one who is firing him, the same-actor inference applies (a legal presumption that a supervisor who hires an employee in a protected category will not later discriminate against the employee).

In this situation, the legal risk of termination without prior notice is low. But if you give a warning, the employee may weaken your position by engaging in protected conduct to manufacture a retaliation claim if fired later. Sad but true!

Helpful Documentation

Still, more often than not, documentation will be helpful. Generally speaking, it should include:

  • The employer’s expectation.
  • How the employee has failed to meet that expectation.
  • Prior counseling or discipline.
  • The employer’s expectations for the employee going forward.
  • The consequences of the employee’s failure to make the requisite improvement.

Common Mistakes

Below are the 10 most common disciplinary documentation mistakes I have observed:

Using labels without providing behavioral examples. Using labels provides little guidance to the employee about where improvement is needed and provides only marginal defensive benefit. Stating that an employee has a bad attitude isn’t saying much.

Drill down to what the employee did or did not do in behavioral terms—for example, “The employee denied responsibility for his failings, blaming others. Further, he often discussed why things would not work as opposed to how to make them work.” (You have one of those, too?)

Using words that sound like “proxies” for bias or retaliation. For example, all too often “lack of commitment” is used to describe someone who gets the job done but not necessarily at the office because that individual has child or elder care responsibilities. That person is more often than not a woman. As long as the work product meets your expectations of quality and timeliness, it should not matter whether the employee completes it between 6 p.m. and 8 p.m. in the office or between 10 p.m. and midnight after the kids are asleep.

Of course, that does not mean the concern about commitment is always without legitimate basis. What if the employee never volunteers, must be persuaded to accept assignments and complains incessantly about how things were better before the bar was raised? Then say that.

Focusing on the employee’s intent (as opposed to results). Focus on results, and stay away from impugning an employee’s intent. Avoid statements like “You didn’t try,” “You don’t care” and “You weren’t applying yourself.” Intent is largely irrelevant; you cannot prove it, and it may be taken as a personal attack. Employees who feel attacked attack back.

Focusing on the perceived cause of a performance problem as opposed to the problem itself. Don’t state or suggest that you believe an employee has a physical or mental condition or that performance deficiencies relate to reasons for a prior leave. “I am concerned that your performance has declined since your second child” may buy college tuition for both children. Similarly, “You seem depressed” may help lift any possible depression when the employee realizes that you have just given him or her a viable perceived disability.

Using absolutes that are not credible. No one is perfect or totally flawed. Your comments should reflect balance, not extremes. Remember, absolutes (always and never) are absolutely assailable and almost never defensible. If the employee can provide one example contrary to the stated absolute, you may be portrayed as a liar trying to target the employee because of his or her protected status, activity or leave.

Hedging so much that the employer seems uncertain of the basis for its own decision. “It would appear” or “It would seem likely” will be heard as “I don’t know.” Recast the sentence: “You don’t seem to understand the new computer software” becomes “You have made three major mistakes with the new computer software that have. …”

Including too much detail. Sometimes supervisors nickel-and-dime the employee with details on everything he or she has ever done wrong. This is overkill and looks like a setup. Provide a general statement, and then make it clear that you are including only some examples of the deficiency so that you can later raise other examples: “There have been a number of interactions with customers that have been less than acceptable. The following are three examples.”

Using technical rather than plain language. With knowledge workers, sometimes the deficiencies are of a technical nature. You need to express the technical deficiency in plain language. Remember, you are writing not just for the employee but also potentially for a court, commission or jury.

Failing to make clear the consequences of lack of improvement. It is very important that employers be specific here. If it is a final warning, say that and make clear that if there is not adequate improvement, the employee will be subject to immediate discharge without further warning. I prefer “will be subject to” rather than “will result in” so that you convey a strong message but have some wiggle room. If it is not a final warning, then the consequences usually are “more severe discipline up to and including immediate discharge.”

Using labels that may create liability. Sometimes employees who engage in offensive behavior are fired for sexual harassment. Then the “victim” sues and tries to use the label as an admission by the employer. Meanwhile, the terminated employee also sues for defamation because the conduct, even if it is as alleged, is not severe or pervasive enough to be unlawful harassment. There is a big difference between “unlawful harassment” and “unacceptable conduct inconsistent with our harassment policy.” Avoid the legal label.

Another example: You are a professional services provider, whether it is a health care system, a law firm or an engineering firm. You state that the employee’s performance is “substandard.”

Why not just concede malpractice? At a minimum, the documentation would support a breach of contract claim in terms of services provided. Again, there is a big difference between “substandard” and “below our high standards.” Use words that focus on your appropriately high expectations.

Jonathan A. Segal is a contributing editor of HR Magazine and a partner at Duane Morris LLP in Philadelphia. Follow him on Twitter @Jonathan_HR_law.

Social Media Use in Hiring: Assessing the Risks

HR Magazine: Legal Trends

Social Media Use in Hiring: Assessing the Risks

When it comes to using social media for hiring, it’s all about balancing risk.

Click for Video: Jonathan Segal on EEOC Panel

Social media is no longer cutting-edge; it is mainstream. For HR to overlook it today would be like ignoring e-mail 20 years ago.

One of the most important intersections between social media and employment is in the hiring process. It is here where there are great potential risks and rewards.

Employers can use social media in two ways when hiring: to recruit candidates by publicizing job openings and to conduct background checks to confirm a candidate’s qualifications for a position.

The Society for Human Resource Management (SHRM) surveyed its members in 2008, 2011 and 2013 on the use of social media for employee recruitment and selection. Its 2013 study revealed that 77 percent of respondent companies use social networking sites to recruit candidates for specific jobs, up from 56 percent in 2011 and 34 percent in 2008.

Smart employers want to cast as broad a net as possible to reach as many potential candidates as they can, and they are increasingly harnessing social media as part of their recruitment strategy. But it should be only a part of the strategy.

EEO Concerns

Not every job seeker uses social media. This raises a concern about potential adverse impact on those who are economically less advantaged, which may correlate with certain racial and ethnic groups.

So, diversify your recruiting approaches to reach potential talent and cast a broad net. Use social media as one of many tools—not the sole one.

Remember that social media postings are “advertisements” that must include the appropriate equal employment opportunity (EEO) and/or affirmative action tagline. Further, the postings must be retained like all other hiring documents as required by law (or longer if the employer’s policy has a longer duration period).

When it comes to screening job applicants, it appears that fewer employers are using social media than in the past. In the 2013 SHRM survey, 22 percent of respondents said they use social media websites like Facebook or Instagram to research job candidates, a decline from 34 percent in 2008.

7 Ways to Maximize Benefit and Minimize Risk Employers are well-advised to follow this guidance when using social media in the hiring process:

  1. Never ask for passwords. In several states, employers cannot ask an applicant (or employee) for his or her social media password by law. In all 50 states, asking for an applicant’s (or employee’s) password creates a real risk of violating the federal Stored Communications Act. For this reason, employers should look only at content that is public.
  2. Have HR do it. It is best if someone in HR, rather than a line manager, checks candidates’ social media profiles. The HR professional is more likely to know what he or she can and cannot consider.
  3. Look later in the process. Check social media profiles after an applicant has been interviewed, when his or her membership in protected groups is likely already known.
  4. Be consistent. Don’t look at only one applicant’s social media profiles.
  5. Document decisions. Print out the page containing social media content on which you base any hiring decision and record any reason for rejection, such as bad judgment. This protects you if damaging content has been deleted by the time a decision is challenged.
  6. Consider the source. Focus on the candidate’s own posts or tweets, not on what others have said about him or her. You may want to give the candidate a chance to respond to findings of worrisome social media content. There are impostor social media accounts out there.
  7. Be aware that other laws may apply. For example, if you use a third party to do social media screening, you are probably subject to the federal Fair Credit Reporting Act (and similar state laws). Also, some state laws prohibit adverse action based on off-duty conduct, except under narrow circumstances.

When surveyed in 2013 about why they decided not to use social networking sites for candidate screening, 74 percent of organizations said they were concerned with legal risks or discovering information about protected characteristics when perusing candidates’ social media profiles. This is a legitimate concern.

For example, from a candidate’s picture, an employer may learn his or her likely race, approximate age and more. People also commonly post personal information such as medical or family problems.

However, the fact that the employer may learn information about a candidate’s protected-group status or other information does not mean that the employer will use it.

This same risk arises during an interview. Candidates often disclose information that an employer cannot consider.

I have heard it said that there are only two times when a person is perfect: at birth and at the job interview. Employers use background checks to get a fuller picture of the candidate than an interview reveals. Social media screening is one way to enhance the background check to determine whether a candidate should be hired.

There can be valuable information on a candidate’s social media pages that an employer lawfully can consider. Individuals have posted everything from pictures of themselves scantily clad to racist rants—reasons not to hire them! Employers may also learn things that weigh in favor of hiring them, such as their relevant volunteer work.

As with other kinds of background checks, there is no “on-off” switch when it comes to using social media when hiring. Rather, key questions that should be considered include when it is done, what is looked at, who is doing the looking, and what is and is not considered in the decision-making process.

Here to Stay

Social media engagement is a relatively new territory for both employers and employees. On the employer side, the key questions are how to get business benefits out of these platforms and how to ensure that employee use of social media while at work is neither distracting nor potentially harmful to the organization.

Today, Millennials account for 36 percent of the U.S. workforce, according to the Bureau of Labor Statistics, and they will account for 75 percent of the global workforce by 2025. Given that this group of employees has grown up actively communicating via myriad social media sites and devices, the use of social media is a workplace trend with staying power for the foreseeable future.

Existing laws provide a useful framework for social media use in hiring. Although the communication methods are new, the legal issues they raise are not.

Jonathan A. Segal is a contributing editor of HR Magazine and a partner at Duane Morris LLP in Philadelphia. Follow him on Twitter @Jonathan_HR_law.

The Executive’s New Clothes

I am pleased to share with you a blog I wrote for Talent Culture.

For the original post, please click here.

This article is not legal advice and should not be construed as applying to specific factual situations.

Follow me on Twitter at:  Jonathan__HR__Law.

Employer Mistakes With Leaves of Absence Policies Can Be Costly

I am pleased to share with you an article I recently wrote for Employee Benefit News on leaves of absence policies.   To learn more about avoiding mistakes in administering your organization’s leaves of absence policy, join us for our October 2, 2014 Webinar:  Top 10 Leave of Absence Policy Mistakes.

 

Gender Bias: Micro-Inequities and Micro-Aggressions

I am pleased to include my most recent article on gender bias posted yesterday on Entrepreneur:

How Entrepreneurs Can Spot Subtle Bias http://www.entrepreneur.com/article/237049 by @Jonathan_HR_Law

The focus is on what I collectively call “micro-indignities:” micro-inequities and micro-aggressions.

I also am pleased to include information on our DMi Lean In (Not for Women Only) seminar on November 19: https://duanemorrisinstitute.com/LeadershipRetreat

Part of our Leadership retreat, the seminar will drill down to specific and detailed recommendations to increase gender equality. Hope to see some of you there.

This article is not legal advice and should not be construed as applying to specific factual situations.

Leaders: Be More Human Please

I am pleased to share with you my latest blog written for SHRM Blog on the human essentials of leadership. For the link to the original blog, click here.

This article is not legal advice and should not be construed as applying to specific factual situations.

Workplace Bullying: Bully Be Not Proud

I am pleased to post a blog I wrote for Talent Culture. You can read it here.

This blog should not be construed as legal advice, as pertaining to specific factual circumstances or establishing an attorney-client relationship.

Top 10 Social Media Mistakes Made by Supervisors

I am pleased to post a link to a recent blog I wrote for SHRM Blog.   This blog focuses on social media mistakes made by  supervisors.  http://www.weknownext.com/blog/top-10-social-media-mistakes-made-by-supervisors.  These mistakes can be avoided, however, by supervisory trainingThis blog should not be construed as legal advice, pertaining to specific factual situations or establishing an attorney-client relationship.

What Obama’s Order Banning Gay Discrimination Means for Businesses

I am pleased to share with you an article I recently wrote for Entrepreneur Magazine on President Barack Obama’s recently signed executive order that makes it illegal for federal contractors and subcontractors to discriminate on the basis of sexual orientation or gender identity.

http://www.entrepreneur.com/article/235888

 If clicking this link leads to an incomplete web-page, an unsupported web-browser is probably being used. Please consider upgrading your browser to view the full page.

This blog should not be construed as legal advice, pertaining to specific factual situations or establishing an attorney-client relationship.

 

Supreme Court Strikes Down NLRB Recess Appointments: 9-0

@Jonathan_HR_Law: Supreme Court strikes down Obama recess appointments http://www.politico.com/story/2014/06/supreme-court-recess-appointments-108347.html#.U6wuUHG587k.twitter via @POLITICO

Link to Supreme Court decision in article in tweet.

Unanimous decision issued by Justice Breyer, striking down “interim” appointments to NLRB as unconstitutional.

While Court did not analyze whether decisions issued under unconstitutionally appointed board are not binding, the result of this decision should be that any decision issued during this time will be able to be successfully challenged because the D.C. Circuit case that was affirmed by the Supreme Court held that the Board’s decision was invalid because the Board was invalid.

Important: even if prior cases are invalid, as they should be expect NLRB to reach out for similar cases and issue same decisions.

This is victory for rule of law but not necessarily for any change in NLRA as interpreted by activist NLRB.

This blog should not be construed as legal advice, as pertaining to specific factual circumstances or establishing an attorney-client relationship.

Real Men Support Women Who Lean In

I have had people ask me:  why is working to eliminate gender bias such a passion for you as a man?  My response:  how could it not be?

On a personal level, I grew up in a family where my parents shared the care giving and the financial responsibilities.  My sister, brother and I were raised without stereotypic suggestions on what we could be or do. I saw how gender equality made my very strong family even stronger.

On a professional level, gender bias is more than a legal and moral wrong.  It is bad business.

While the numbers vary depending on the field, generally speaking, women account for at least half of the talent in the workforce. Employers who discriminate against women, consciously or unconsciously, do so at their economic peril.

Women do not need paternalistic rescuing.  Women need organizations to understand where there are explicit or implicit barriers to true equality and to eliminate them.

Where equal employment opportunity at all levels and in all areas is a reality and not just a slogan, it is not just women and the organization which benefit.  Men, too, benefit when we expand the range of socially-acceptable options by eradicating gender-based stereotypes.

I am not very popular with members of boys’ clubs, the invisible but often impenetrable group of (white) men with power.  Nothing could bother me less, because I am more likely to be successful and happy working through inclusive groups of diverse individuals.

Still, I look forward to the day when these clubs don’t exist so that women and men who don’t belong to these de facto fraternities have an equal chance to succeed—or to fail. No preferences—just an even playing field.

We should follow Sheryl Sandberg’s clarion call for more dialogue.  But the dialogue must produce positive changes or it will serve only to raise expectations unfairly and dangerously.

Enough writing.  We have work to do.

Join me in New York at the Lean In Dialogues to continue the conversation on June 18.

Stamping Out Harassment

The U.S. Equal Employment Opportunity Commission (EEOC) identifies eradicating harassment among its key priorities in its 2013-16 Strategic Enforcement Plan and has recently increased the number of related class actions it has initiated. If the agency perceives there to be a hostile work environment affecting many employees, a lawsuit may follow. Employers looking to address workplace hostility should, like the EEOC, take a systemic approach.

Anti-Harassment Policy

The EEOC has long held that a nondiscrimination pledge with regard to sex is insufficient for addressing sexual harassment; rather, employers need a policy that targets the issue.

These days, even that is not enough. For the policy to be viable, employers must address other kinds of unlawful harassment, including racial or ethnic harassment and that which targets people with disabilities.

It is important that the policy avoid unnecessary legalese. When it comes to sexual harassment, some employers’ policies simply quote the EEOC’s regulations. While that approach is easy, be aware that the regulations provide little practical guidance to those who are not fluent in the law. Further, ironically, the regulations don’t accurately state the law. They suggest that in order for sexual harassment to exist, the conduct must be of a sexual nature. In fact, hostility directed at employees because of their sex can be sexual harassment even if there is no sexual component.

Complaint Procedure

At a minimum, the U.S. Supreme Court has made clear that for a complaint procedure to be effective, it must provide employees with an option other than contacting their supervisor. And yet while having a supervisory bypass is necessary, it may not be sufficient. Ideally, there should be multiple points of access allowing people to begin a complaint process.

In making your policy user-friendly, consider diversity. In this context, that includes not only EEO diversity but also the operational and geographic kind.

The complaint procedure should have a strong nonretaliation section. Employers should carefully define who is protected by the policy, including complainants, witnesses and others participating in the investigatory process.

It is also helpful to define prohibited retaliation. Prohibited acts stemming from retaliatory motives include not only tangible employment actions but also material changes to the terms and conditions of employment, such as work assignments, and retaliation independent of the workplace, such as providing someone a bad reference. An employer should make clear that it will neither engage in nor tolerate retaliation.

While it’s not possible to promise absolute confidentiality, you can state that you’ll keep the complaint as confidential as possible, disclosing the allegations only to those who need to know.

The complaint procedure also must address corrective action. Discipline should be specifically referenced and should include as an option “termination of the employment or other relationship.” Inclusion of “other relationship” is important to emphasize the application of the policy to nonemployees.

Inappropriate vs. Illegal

Corrective action may apply not only to unlawful harassment but also to inappropriate conduct.

For example, one joke of a sexist nature is probably not in and of itself sufficient for a harassment claim, although the behavior is clearly unacceptable. The policy must provide a basis for the employer to take corrective action without putting a legal label on it.

For this reason, when employers provide examples of potential harassment, it is generally a good idea to avoid discussing the legal aspects and focus instead on inappropriateness.

Appeals Procedure

An employer may want to consider having an appeals procedure so that employees have the option to complain about how the matter was handled initially. While an employer cannot ignore oral appeals, it may want to have some nominal written requirement to defend against a false allegation that an appeal was made when it was not.

For example, the employer might state that if an employee wishes to appeal his or her complaint, he or she should send an e-mail to a designated person stating, “I wish to appeal my EEO complaint.”

The stronger the policy and complaint procedure, the more likely that an employee’s failure to use it will be deemed unreasonable.

Supervisor Responsibilities

No harassment prevention program is complete without supervisory training.

Some states, such as California and Connecticut, require such training by statute. Others, such as New Jersey, effectively mandate it by case law.

In any case, there are at least three reasons to train your supervisors on unlawful harassment:

  • With training, some inappropriate conduct will be avoided and, therefore, fewer complaints will be filed.
  • Training helps to strengthen the availability of the Faragher-Ellerth defense when an employee does not complain before taking formal action.
  • Finally, in the absence of training, an employer has greater exposure to punitive damages. The argument is that the failure to train equals reckless disregard.

 

5 Elements of Supervisor Training About Harassment

When being trained about harassment, supervisors should be told to:

1. Refrain from unlawful harassment or conduct that could give rise to a hostile work environment claim. It’s a good idea to give practical examples and to emphasize power and perception.

2. Report to HR all complaints that could give rise to a hostile work environment. Supervisors should be told that this mandatory duty to report applies even if an employee:

  • Requests that nothing be done.
  • Asks for absolute confidentiality.
  • Does not use legal buzzwords.

 

3. Respond proactively to possible unlawful harassment. Silence equals tacit consent.

4. Remedy conduct that may give rise to a hostile work environment complaint. This could involve anything from offering counseling to applying discipline to terminating employees. Supervisors should consult with HR before issuing a remedy to ensure consistency with similar situations.

5. Understand the importance of nonretaliation. This should include a discussion of those who are covered by the protection as well as the broad definition of what may constitute unlawful retaliation. The fact that a complaint lacks legal merit is almost never a defense to unlawful retaliation.

Employee Education

Even in the absence of a legal mandate, there are benefits to educating employees about appropriate behavior. Presumably, fewer will engage in inappropriate behavior. Plus, employee education helps establish the Faragher-Ellerth defense based on failure to complain.

With regard to inappropriate behavior, employers should define it broadly and should include many practical examples.

An employer may wish to offer strategies for direct confrontation. One response that I recommend: “When you say X, it makes me feel uncomfortable. Please stop.” If employees have this in their heads, responding on the spot becomes easier.

However, employers must stress repeatedly that direct confrontation is an option and not a mandate. At any time, employees can use the complaint procedure, which should be explained to them in detail.

Regulating Romance: Options For Co-Worker Dating Guidelines

Many harassment claims involve workplace romance, and the biggest risks occur when employees date, or attempt to date, someone over whom they have direct, indirect or institutional authority.

Generally, an employer has three options in creating dating guidelines:

Dissuading such relationships in the context of training.

Imposing a notification requirement. Changing the reporting structure for a supervisor dating his employee is one possible option.

Prohibiting individuals from dating, or attempting to date, those over whom they have direct, indirect or institutional authority. (Such a prohibition would arguably prohibit anyone in HR from dating anyone else in the company.) While this is the safest legal option, it may not be the most practical. In fact, it could push workplace romances underground, eliminating any public evidence that the relationship was “welcome.”

Regardless of which approach you take, focus on the workplace relationship and not the personal one. There is a big difference between saying “You cannot date someone you are supervising” and “You cannot supervise someone you are dating.” The former statement may be seen as regulating off-duty conduct, while the latter more appropriately restricts the supervisory-subordinate relationship.

Social Inclusion

In every harassment program, employers need to emphasize that people have different perspectives. But be careful not to suggest that women are from Venus and men are from Mars. Doing so may leave you with no common ground here on Earth!

While differences need to be explored, it’s important to remember that we have more in common than what divides us. We don’t want individuals to avoid harassment claims by avoiding those who are different from them. That may be discrimination.

The EEOC is Focusing on Systemic Harassment. So Should You.

I am pleased to include a link to a feature article I wrote for SHRM’s HRMagazine entitled “Stamping Out Harassment.” It can be found here.

5 Categories of Social Media Content for Supervisory Training

I am pleased to post a blog I wrote for SHRM Blog. You can read it here.

This blog should not be construed as legal advice, as pertaining to specific factual circumstances or establishing an attorney-client relationship.

The 6th Circuit Decision on the ADA & Telecommuting: Important But Not Surprising

In the EEOC v. Ford Motor Company, the Sixth Circuit recently held that telecommuting could be a reasonable accommodation under the ADA for the employee at issue.  Commentators have described the decision as everything from “ground breaking” to opening up the “flood gates” to telecommuting accommodation requests.

I am not surprised by the Sixth Circuit’s decision.  I am a bit surprised by the reaction to it.

The EEOC has long held that working at home may be a reasonable accommodation under the ADA.  In fact, if you search the EEOC’s website, you will see that, since 2005, there has been a whole page dedicated to telecommuting as a reasonable accommodation.

In my experience, employers make three primary, and often fatal, mistakes in this area, beyond not knowing the threshold issue that working at home may be a reasonable accommodation.

First, some employers offer work-at-home arrangements only for employees who have been employed for a specified period of time, such as one year. That  is fine for work-life flex arrangements independent of the ADA but does not work under the ADA any more than would considering time off as a reasonable accommodation only for employees with one year of service or more.

Second, some employer’s evaluate the requests made by the employee and, if it is unreasonable, stop at that.  But the interactive dialogue applies to all reasonable accommodation requests and that includes those regarding telecommuting. Full-time working at home may not work.  But working some days at home may.  Employers need to explore partial work-at-home arrangements, even if the employee asks for working at home full-time.

Finally, some employers fail to apply and then document the criteria the EEOC has stated are relevant in determining telework as a reasonable accommodation.  More specifically, the EEOC has stated on the above cited website page :

Several factors should be considered in determining the feasibility of working at home, including the employer’s ability to supervise the employee adequately and whether any duties require use of certain equipment or tools that cannot be replicated at home. Other critical considerations include whether there is a need for face-to-face interaction and coordination of work with other employees; whether in-person interaction with outside colleagues, clients, or customers is necessary; and whether the position in question requires the employee to have immediate access to documents or other information located only in the workplace. An employer should not, however, deny a request to work at home as a reasonable accommodation solely because a job involves some contact and coordination with other employees. Frequently, meetings can be conducted effectively by telephone and information can be exchanged quickly through e-mail.

When evaluating a request to telecommute, employers are best to consider the criteria articulated by the EEOC.  Regardless of whether the request can or cannot be granted, in whole or in part, employers should document the application of the criteria to the situation at issue.

Documentation is critical if the request is granted.  It helps a favorable response from having unlimited precedent where it would not be reasonable.

Documentation is also critical to help defend a claim where the employer says “no” to the telework request.  It is possible that the EEOC will not agree with the employer’s determination, but at least the EEOC will know that the employer relied on the right factors.

As with other ADA issues, employers are cautioned against drawing bright lines.  These lines help to ensure consistency.  But they are inconsistent with the individualized assessment mandated by the ADA so that they form the commonality of which class actions are made.

No, the  6th Circuit decision is not groundbreaking.  But the publicity granted to it all but guarantees we will be seeing more telework accommodation requests in the days to come.

This Blog should not be construed as legal advice, as pertains to specific factual situations or as establishing attorney-client relationship.

Is the Mad Men Corporate Closet a Relic of the Past?

Last night’s #MadMen was one of its very best.  The cold war between Don and Peggy has thawed.  After confiding in each other about their vulnerabilities, and also sharing some laughs, Don and Peggy danced tenderly together to Sinatra’s “My Way.” Somehow Don and Peggy are their best when they are their best with each other. Will they end up together?

But there was a subplot of importance involving the return of Bobby Benson.  We meet Benson this season bailing out a GM executive, Bill Hartley, who had been arrested for coming on to an undercover [male] officer.

Later, Hartley tells Benson that GM is pulling their Chevy business from SC&P.  However, there is good news, too, at least for Benson.  Buick will be making an offer to Benson.

Although not perceptible, Benson panics.  How will he survive in corporate America without a wife?  Not yet expressly said, Benson is gay.

To provide the corporate cover that he believes he needs, Benson asks Joan to marry him (by rudely diminishing her life as it now is without him).  Joan declines, saying, “you shouldn’t be with a woman.”  The “g” word remains unsaid.

Of course, that was more than 40 years ago.  Much has changed since then in terms of legal rights and corporate policies.  But perhaps not as much has changed in terms of what I call comfort rights.

On the same day as the this Mad Men episode,  the Sunday New York Times ran an article, “Where Are The Gay Chief Executive Officers?”  Not naming any, the Times noted how few LGBT executives are willing to come out of the closest publicly.

As the article notes, legal protections and corporate policies don’t necessarily translate into what is perceived as an accepting culture.  We need to go from tolerance to acceptance for there to be an inclusive culture in which people can be open as to who they are in terms of their sexual orientation.

At times, that may mean walking away from a contract, as the Times reported Deloitte did when a client said they did not want a gay person on the team.  Every responsible employer should do the same where there is unlawful/unacceptable customer/client preference, whether it be based on gender, race or sexual orientation.

Protestations of  inclusion are fine. But money talks. And when a company lets it walk because of bigotry, it sends a stronger message than any training could.

Will Benson eventually come out at SP&D?  Not likely if corporate leaders don’t 40 years later with growing legal and policy protections supporting them.

In the meantime, we have only one episode left in this half season.  We all feel something ominous is going to happen; we just don’t know to whom and how bad.  With increasing anxiety, I will wait until next week.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

Don Draper’s Best Friend: Alcohol?

Last week, Don returned to work with a little help from Roger.  The partners took him back, but imposed restrictions. One of them: no drinking at work.

Last night, Lou gave Peggy a plum of an assignment and assigned Don to support her.  Role reversals are never easy and this one made both Don and Peggy palpably uncomfortable.

Peggy turned to the assignment. Don turned to alcohol.

After pouring alcohol into a soda can, Don fell asleep. He then left work, visibly impaired, to go to a Mets’ game.

Don always has been a heavy drinker.  Has he crossed over the line into alcoholism?  Or, has Don been an alcoholic for quite some time and the only difference is that now he is moving from functional to dysfunctional?

Even if he is an alcoholic, that is no defense to drinking at and/or being impaired at work.  That is true even with the post-#MadMen ADA.

Alcohol is a key character in #MadMen.  It inevitably will play some role in the conclusion of the series; how remains to be seen.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

 

Holocaust Remembrance Day – A Personal Perspective

For me, this day is very personal. Most of my family was murdered by the Nazis.

But even those not directly affected in terms of their families breathe some of the second hand smoke of the Holocaust atrocity.

May we take a moment to—

– Pray for the innocent souls of those who were murdered.
– Thank the many righteous gentiles who saved so many, including members of my family.
– Agree that we must never let this happen again to any people at any time.

Y Tu Joan and Peggy

Well, last night, Don Draper finally returned to work. After getting an offer from a competitor, Don confronts Roger, who agrees to take him back.

However, Roger did not obtain prior approval from the other partners.  When they met, they agreed to Don’s return subject to restrictions, such as no drinking at work (makes sense) and no meeting with clients alone (less so).

It was not surprising that Don returned to work. And, it was not surprising that he made it happen.

What was surprising–and disappointing–were the reactions of Joan and Peggy.

Joan was nothing less than hostile to Don’s return. Peggy made the point to tell Don how he was not missed.

Yet, it was in Season 1 that only Don helped Peggy break through the glass ceiling at SCP and promoted her to copywriter.

And, in Season 5, it was only Don who tried to implore Joan not to sleep with an executive of a client to get its work.

I am not suggesting  Don’s behavior with women, in the office or outside, is worthy of emulation. I am suggesting that Don has been his better self when it comes to Joan and Peggy.

Joan and Peggy were not their better selves upon Don’s return.  To the contrary, they were brutal.

While Don may be thinking “y tu” Joan and Peggy, I cannot help but to wonder why their reactions were so harsh.

Didn’t they consider how Don had helped them? Or, was that part of the reason for their reaction?

More to be revealed next week. Blog to follow.

NOT LEGAL ADVICE; DOES NOT ESTABLISH ATTORNEY-CLIENT RELATIONSHIP

“Extreme” French Proposed E-Mail Law: Already Law in U.S.

A bill is being considered in France that would potentially restrict severely use of e-mail by employees off the clock.

I have read many business leaders respond with dismay.  How much can French government regulate and expect business to survive, let alone thrive?

Lots come back across the pond.  That “controversial,” “extreme” and “off the wall” French proposal: well, it is already U.S. law!

Under the Fair Labor Standards Act, non-exempt employees must be paid for all time worked.  Work-related e-mails are work!

U.S., employers face exposure here primarily in two areas:

1. Mobile devices, such as i-phones
2. Remote access to the employer’s network server

Of course, the safest legal answer:

1. No mobile devices for non-exempt employees
2. Block access by non-exempt employees to the employer’s network

This may avoid legal risk.  But it also may be business blind,

Employers need to consider when there are compelling circumstances for e-mail use by non-exempt employees outside of regular working hours and then:

1. Create parameters for limited use
2. Monitor employees to make sure they use mobile devices or access the network only within such parameters
3. Establish protocol for employees to record time worked
4. Pay for all time recorded as worked
5. Pay also if management has actual or constructive knowledge of off the clock e-mail work

And more…..

So what was your reaction to French proposal, again?

This blog should not be construed as legal advice, pertaining to specific factual situations or creating an attorney-client relationship.

Hi Dawn/Hi Shirley: Maddening Racism on Mad Men

In the first episode of Mad Men, we witnessed Peggy and Joan experience not so subtle sexism in response to their efforts to maintain and grow the business.

In the second episode, the palpable “ism” was racism.

Two African American secretaries, Dawn and Shirley, play pivotal roles in this episode. Of course, they were not referred to as African American at the time.

Each greets the other by calling her by her own name (“Hi Dawn”/”Hi Shirley”). The unexplained but clear message: their bosses confuse them even though they look no more alike than Don and Roger do.

Poking fun at their bosses soon turns to being bullied by and discriminated against by them. Let’s start with Shirley.

Shirley receives flowers from her fiancee. Peggy thinks they are from Ted and takes them for herself. When Shirley confronts Peggy with the truth, Peggy lashes out at Shirley and tell her  to “grow up.”

Peggy’s behavior was horrific. Alone in her own office, Peggy seems appropriately disappointed in herself.

Would this have happened if Shirley were white? Perhaps. Would it have played out the same way? Perhaps not.

Dawn works for Lou. Lou expresses his dismay at Dawn for inconveniencing him when she is shopping for a gift for his wife.

Dawn confronts Lou. Lou’s response: move her to the reception desk.

Bert sees Dawn at the receptionist desk. Worried about race-based “customer-preference,” Bert effectively tells Joan to move Dawn and replace her with a white receptionist.

No codes here. Blatant racism.

Amidst these Title VII breaches, two good things happens. Jim recognizes Joan’s business acumen and contributions and offers her an office upstairs so she can focus on her accounts. But, as a partner, should not she have been there already?

When Joan moves, Dawn moves into her office. It seems that Dawn is the new Joan and the office and promotion delight her.

All this occurs without Don at the office. He remains on paid leave. However, he remains somewhat connected to the office, we learn earlier in the episode, as Dawn delivers papers from work to him.

For Don, the seminal scene is when his daughter Sally tells him she needs a note for missing school. When Don asks Sally what the  note should say, Sally responds “Just tell the truth.”

After telling his partners and children the truth last season about his background, Don Draper returns to his pattern of concealing the truth. Before this episode, neither Megan (absent from the episode and his daily life) nor Sally knew that he is not working. Now, Sally knows.

Perhaps Don could be truthful about his past because it was just that. But to acknowledge the present is too painful so he doesn’t.

Reality has a way of catching up with Dick Whitman. The question is only how.

This blog does not constitute legal advice, pertain to specific factual situations or create an attorney-client relationship.

Fifth Circuit Refuses to Reconsider DR Horton En Banc

Yesterday, the Fifth Circuit denied the NLRB’s petition for en banc review of its December 3, 2013 decision wherein the Fifth Circuit refused to enforce the NLRB’s decision invalidating class action waivers in mandatory employee arbitration agreements. See D.R. Horton, Inc. v. NLRB, — F.3d —, 2013 WL 6231617 (5th Cir. Dec. 3, 2013). In the NLRB decision overturned by the Fifth Circuit (In re D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012), the NLRB held that D.R. Horton’s mandatory arbitration agreement, which prohibited employees from filing class or collective action claims in any judicial or arbitral forum, violated Sections 7 and 8(a)(1) of the National Labor Relations Act (“NLRA”) by prohibiting employees’ ability to engage in collective action. In reversing the NLRB’s decision, the Fifth Circuit held 2-1 that the NLRB failed to give appropriate weight to the Federal Arbitration Act (“FAA”) and Congressional policies favoring arbitration. In sum, the court concluded that class action waivers in employment agreements are lawful.

Section 7 of the NLRA states that employees have the right to “engage in [ ] concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Section 8(a)(1) of the NLRA prohibits employers “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of their rights” granted in Section 7. 29 U.S.C. § 158. In a widely discussed 2012 decision, the NLRB found that D.R. Horton’s arbitration agreement, and specifically the restrictions on class or collective actions, violated these provisions. D.R. Horton appealed, arguing that the NLRA does not grant employees a substantive right to class action procedures and that the decision impermissibly conflicted with the FAA. In large part (but not entirely) the Fifth Circuit agreed.

The Fifth Circuit held that prohibiting class action waivers would conflict with the FAA. The Fifth Circuit, applying the U.S. Supreme Court’s reasoning in AT&T Mobility, LLC v. Concepcion, 131 S. Ct. 1740 (2011), found that the NLRB’s prohibition on class action waivers had the effect of disfavoring arbitration because “employers would be discouraged from using individual arbitration,” and requiring class arbitration would “interfere[ ] with fundamental attributes of arbitration and thus create[ ] a scheme inconsistent with the [FAA].” D.R. Horton did not completely carry the day, however. The Fifth Circuit affirmed the NLRB’s holding that the language of D.R. Horton’s arbitration agreement would lead employees to reasonably believe that they were prohibited from filing charges of unfair labor practices with the NLRB itself. Accordingly, the court enforced the NLRB’s decision requiring D.R. Horton to rescind or revise its agreement to clarify that employees are not prohibited from filing unfair labor charges with the NLRB.

The NLRB’s decision in D.R. Horton, has been rejected by all of the circuit courts of appeals (Fifth, Second, Ninth and Eighth) and nearly all of the district courts which have considered the issue. Appeals from Board decisions go to the Circuit Courts of Appeal. District court decisions arise where an employee seeks to set aside an arbitration agreement containing a class action waiver on the ground that it conflicts with NLRB law. The district courts in those cases also tend to reject the Board’s position. Of the few cases that went the Board’s way, most are from one of the circuits that later rejected D.R. Horton and, thus, those decisions are now bad law and would go the opposite way if decided today. The few Florida federal courts that mention D.R. Horton held that it was required to follow pre-D.R. Horton Eleventh Circuit law which affirmed use of class action waivers in an FLSA overtime claim. See Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359 (11th Cir. 2005). The Eleventh Circuit recently sidestepped the issue in Walthour v. Chipio Windshield Repair, LLC, 2014 WL 1099286 (11th Cir., March 21, 2014) in a decision generally viewed as pro-arbitration.

Will the NLRB petition the Supreme Court to grant certiorari? Probably not until there is a circuit split. Will the NLRB acquiesce and abandon efforts to attack class action waivers? They will one day run out of circuits to peddle this theory.

Therefore what?

Employers should recognize that the issue still is not settled. Although several federal courts of appeal now agree that the Board’s position is incorrect, the Board is not bound by those decisions, and even if it does not seek review by the Supreme Court (which is pro arbitration), the Board may ignore the decisions and continue issuing complaints. The final outcome of this issue is tied up in a pending case before the Supreme Court that will be issued in the next few weeks. If the Supreme Court affirms the lower court ruling that the NLRB was improperly constituted at the time D.R. Horton was issued, this could potentially wipe the entire case away. And while that may initially sound attractive, it might only mean that the current Board could take up the issue again starting from square one.

Another potential variable is whether the NLRB will appeal the DR Horton decision to the Supreme Court. I suspect that the NLRB will not appeal. The current Supreme Court (or at least five members of the Court) has expressed an unfailing affection for arbitration. The NLRB may be inclined to defer seeking Supreme Court review until it believes that it has a more favorable majority. The NLRB may simply ignore the court’s decision outside the Circuits where it had not prevailed. Or it may ignore the federal court decisions regardless of the jurisdiction in which a case arises. The Board tends to view itself as bound only by Supreme Court decisions, and (on some occasions) views the circuit courts as simply an interesting distraction. The risk exists that the NLRB will issue a complaint against an employer that requires employees to execute class action action arbtration agreements. The NLRB has been accused of operating a rogue agency that will harass employers despite having no legal basis for doing so. In the interim, it is likely that a district court will enforce an otherwise enforceable arbitration agreement containing a class action waiver if the court is presented with a motion to compel arbitration.

The bottom line

While the Fifth Circuit’s rejection of D.R. Horton is encouraging, the Board may very well ignore the Fifth Circuit (and the Second, Eighth and Ninth Circuits, which have also rejected D.R. Horton) and continue to issue complaints against employers that use class waivers in mandatory arbitration agreements.

How would this play out?

A plaintiff files a class action lawsuit. The employer moves to compel arbitration. The plaintiff claims the class action waiver is unlawful. It is unlikely that a court would refuse to force the class action waiver based on D.R. Horton. An adverse ruling could be appealed to the Eleventh Circuit. A plaintiff’s attorney may elect not to do so.

Alternatively, the NLRB could issue a complaint based on an unfair labor practice charge. That could be ruled upon by an ALJ in an administrative hearing, and then appealed to the NLRB (although if the case is clean, it could go directly to the Board on a stipulated record, which seems likely on these facts – there would be no litigation other than briefing). The appeal would sit there for a few months or years. The Board will rule against the employer (unless there is some intervening Supreme Court decision) whereupon the decision would be appealed to the Circuit Court of Appeal – either the D.C. Circuit or the Eleventh Circuit (assuming the cases starts in Florida). The appellate court would likely refuse to enforce the NLRB’s order. It would take years for the issue to play out and class actions would be disabled in the interim.

Of course, the risk exists that the courts change directions and start affirming the Board’s decision in D.R. Horton. If the NLRB charge is based on simply requiring the agreement as a condition of employment (i.e., the demand by itself is unlawful), the Board’s remedy would be to require employers to stop doing it, post a notice, but not much more. If the charge is based on an allegedly unlawful termination arising from a refusal to sign, there could be backpay liability for the affected persons. In general, employment law firms are advising employers who want protection from class actions to require the employees to sign arbitration agreements containing class action wiavers, and in the unlikely event that it results in a NLRB charge, fight it out in court.

There is another option, but few recommend it. Employers can permit employees to opt out of the arbitration clause by notifying the company within 30 days. Inertia will work in the employer’s favor. It comes at the price of allowing employees to opt out, which defeats the objective, and the NLRB disapproves of these agreements too. Employers give up a lot, and get very little protection. But such agreements are slightly easier to defend, and hence, a slightly less attractive target for the NLRB’s enforcement efforts.

Defending FMLA Retaliation Claims: Employers, Follow Your Normal Practice

Employers are well aware of the increased risk of implementing an adverse action (e.g., suspension, termination of employment) in the face of an employee’s claim for FMLA leave. Defending against such claims depends upon being able to demonstrate the legitimate, nondiscriminatory basis for the adverse action. At times, however, the close proximity of the adverse action to the employee’s FMLA request is difficult to overcome. In a number of recent FMLA retaliation cases, courts have analyzed the legitimacy of an employer’s non-discriminatory reason and the impact of the timing of the employer’ adverse action on such claims, with varying outcomes for employers.

Allen v. Nutrisystem, Inc., 21 WH Cases2d 1030 (3d Cir., 2013).

In this case, a customer service representative, brought an FMLA retaliation claim after she was terminated for poor work performance (e.g., failure to follow the call-out procedure and several instances of poor treatment of customers in handling customer calls). She claimed that the termination of her employment was in retaliation for her use of FMLA leave on three occasions during an eight month period and further, upon return from her most recent FMLA leave, she received three write-ups, including a final written warning due to her treatment of customers. In response to the final written warning, she claimed that there were mechanical problems with the phone used by her. Her assertions were investigated by the company’s human resources department, which determined that there was no evidence to suggest that mechanical issues contributed to her poor performance.

As there was no direct evidence of retaliation, the court considered the employee’s claims under the McDonnell Douglas burden-shifting framework. Thus, to bring a claim, the employee was first required to establish that she took FMLA leave, she suffered an adverse employment action and that there was a causal connection between the adverse employment action and the FMLA leave. Upon demonstrating her prima facie case, the employer would then be required to establish a legitimate, nondiscriminatory reason for the adverse action, at which point, the burden falls back on the employee to show that the employer’s legitimate, nondiscriminatory reason was pretextual.

In Allen, there was no dispute that the customer service representative completed school work and handled other personal matters during work hours. Further, the customer service representative failed to present evidence to dispute the employer’s assertions of numerous policy violations in the manner in which she failed to properly handle customer calls. In fact, the employer provided evidence that shortly after her last FMLA leave, the customer service representative sent numerous drafts of school projects back and forth between her work and personal e-mail account, thus supporting the employer’s assertion that the employee was handling personal matters during work-time. Notwithstanding the temporal proximity between the most recent FMLA leave and the disciplinary actions, the court found that the customer service representative failed to rebut the employer’s legitimate, nondiscriminatory reason for the termination of her employment and granted the employer’s motion for summary judgment.

Murphy v. The Ohio State University, 21 WH Cases 2d 914 (6th Cir., 2013).

In this case, a part time dispatcher worked for Ohio State University (OSU). Prior to her position with OSU, she worked as a part-time dispatcher for the Ohio cities of Grandview Heights and Upper Arlington.

In September, 2011, the dispatcher received a citation for disobeying a police officer’s commands. Shortly thereafter, on September 30, 2011, the dispatcher began an unrelated period of FMLA leave, returning to work on December 21, 2011. While she was on FMLA leave, her employer, OSU, learned she had applied for a full-time dispatcher position at her prior employer, the City of Grandview Heights and also learned that she worked part-time for Grandview Heights while she was on FMLA leave from her position at OSU. When she returned to work, the dispatcher was informed that OSU was investigating the police citation as well as her potential misuse of FMLA leave. After the investigation was completed, the dispatcher received a 3-day unpaid suspension. Shortly thereafter, the dispatcher filed an FMLA retaliation claim.

Utilizing the McDonnell Douglas burden-shifting framework, the court concluded that the dispatcher established a prima facie case of FMLA retaliation.

OSU argued, however, that it legitimately investigated and suspended the dispatcher upon her return from FMLA leave because she demonstrated poor judgment in her exchange with the police officer and because she worked for another employer while she was on FMLA leave from OSU, despite having provided to OSU an FMLA certification indicating that she could not work at all during her leave of absence.

In response, the dispatcher claimed that OSU’s basis for its decision to issue the 3-day suspension was pretextual because OSU did not follow the requirements of the applicable collective bargaining agreement related to investigations, OSU delayed its investigation to prejudice her, the charges against her were baseless and OSU failed to exercise due diligence in conducting its investigation.

In considering the dispatcher’s assertions, the court found that the fact that OSU was investigating the dispatcher for possible misuse of leave is not evidence of pretext, noting that an employer is entitled to inquire into whether an employee has abused his/her leave. The court further concluded that the temporal proximity of her leave and the disciplinary proceeding alone did not establish that OSU’s reasons were pretextual. The court reasoned that even if some aspects of the investigation were flawed, there was no evidence that these flaws undermined OSU’s investigation given that the dispatcher was provided the due process to which she was entitled under the applicable collective bargaining agreement. As a result, the court ruled that the employer was entitled to summary judgment, dismissing the employee’s FMLA retaliation claim.

Nelson v. Clermont County Veterans Service Commission, 21 WH Cases2d 965 (S.D. Ohio, November 1, 2013).

Unlike the prior two cases, in Nelson, the court refused to dismiss the employee’s FMLA retaliation claim, this time relying in part on the temporal proximity of the adverse action to the employee’s FMLA leave of absence.

Kristan Nelson was an administrative assistant for a county veteran’s commission. Over a period of two years (March, 2007 through April 2009), she was counseled for a variety of performance issues, including claiming unauthorized overtime and/or compensatory time, using her work computer for personal matters and not timely completing work assignments. A few months later, at the end of September, 2009, Ms. Nelson took FMLA to care for her daughter who had been sexually assaulted and later, took FMLA for her own stress-related condition stemming from her daughter’s attack.

While Ms. Nelson was on leave, additional mistakes were found with respect to time sheets submitted by her prior to her leave. Ms. Nelson did not dispute that her time sheets were inaccurate as submitted. Ms. Nelson returned from her leave in November, 2009. However, she brought her daughter to work on a regular basis and her supervisor advised her that she had to choose between her job and caring for her daughter. Ms. Nelson inquired about filing an internal grievance related to this exchange with her supervisor and also submitted a proposed, slightly reduced work schedule for her employer to consider. Later that same week, Ms. Nelson was informed that she was subject to a pre-disciplinary hearing for misconduct. Shortly thereafter, a hearing was conducted. Ms. Nelson declined to provide evidence or testimony at the hearing, but later submitted a rebuttal letter that was not considered by the hearing officer. Ms. Nelson’s employment was ultimately terminated on several grounds, including incompetency, dishonesty and neglect of duty. Ms. Nelson filed a claim alleging that she was terminated for taking FMLA and for seeking information about filing an internal grievance.

Given the absence of direct evidence, the court considered Ms. Nelson’s claim utilizing the McDonnell Douglas burden-shifting framework. The court noted that Ms. Nelson’s employment was terminated only nine days after returning from FMLA leave and while temporal proximity is generally “not enough,” the court pointed to evidence presented by Ms. Nelson that her supervisor had overloaded her with work upon her return from leave. The court acknowledged that the employer had articulated a legitimate business reason for terminating her employment. However, the court found that Ms. Nelson demonstrated sufficient evidence of pretext in challenging the reasonableness of the employer’s decision, given that the hearing officer did not consider Ms. Nelson’s rebuttal letter and the employer did not follow its own disciplinary procedures. Thus, the employer’s motion for summary judgment was denied and Ms. Nelson was permitted to pursue her claim.

The determination of whether an employer has a legitimate, nondiscriminatory basis for its adverse action is fact specific. Courts are influenced, to varying degrees, on the extent to which the temporal proximity between the FMLA leave and the adverse action gives rise to an inference of retaliation. Further, in two of these cases, the court considered whether pretext could be established based on the employer’s failure to follow its own internal disciplinary procedure, reaching different results.

The lesson for employers? Where an adverse action comes in close proximity to an employee’s use of FMLA leave, it is even more critical to demonstrate that the employee was treated consistently with the employer’s policies, irrespective of the leave. The employer’s failure to follow the employer’s normal disciplinary process creates the possibility that a court will consider that the employer did not act reasonably or in good faith and, therefore, will allow the employee’s claim to proceed to trial.

Mad Men: Beginning of the End

Last night was, according to @DonDraper_NY, the “beginning of the end.” And, what a beginning it was.

Don remains on paid leave. He visits Megan in California and then returns home to NY.

In his absence from the workplace, much of the focus was on Peggy and Joan. Both worked incredibly hard on client retention and satisfaction but each was marginalized in ways that too many women still are today.

Joan fought hard to rescue a small but important account, Butler Footware. But instead of being thanked by the account executive, Ken Cosgrove, he told her only to stay out of his office.

It was not just what he said. It was how he did it.

Joan had left an earring in his office when trying, on the phone, to save the client. When he threw the earring at her, the boys’ club message could not have been clearer.

When Peggy tried to improve a pitch for Accutron, her ideas were dismissed by her new boss, Lou Avery. Rather than focusing on her content, he said: “I’m immune to your charms.” Hard to imagine him saying that to a man!

At the end of the episode, Peggy was so frustrated with work, and perhaps, life, that she broke down emotionally at home.

Don broke down emotionally at the end, too. But he did not emote. Instead, only partially clothed, he sat on the balcony of his NY apartment in the frigid cold.

How different their reactions. But equally intense I suspect were there inner feelings.

It is only a matter of time before Don returns to work. With his growing and painful self-awareness (“She [Megan] knows I am a terrible husband”), I don’t think we can anticipate a seamless return.

And Peggy, who broke through the glass ceiling initially at Sterling Cooper, is both smart and strong. Those who underestimate her do so at their peril.

Cannot wait until next Sunday!

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

Leadership and Aretha Franklin

I am pleased to post the fourth and final in a series of four blogs I wrote on leadership for SHRM Blog. You can read the post here.

This blog should not be construed as legal advice, pertaining to specific factual situations or establishing an attorney-client relationship.

Employee’s Trip to Las Vegas With Ill Parent May Be Covered by FMLA Leave

FMLA leave or an employee’s family vacation? Sometimes it is tough for an employer to tell.

The FMLA specifically permits employees to use FMLA leave to “care for” an immediate family member with a serious health condition. In most instances, the circumstances giving rise to the need for FMLA leave are straight-forward, involving providing transportation for the family member to attend medical treatment, providing psychological support and comfort or providing for the family member’s medical, hygienic or nutritional needs. In other instances, however, the employee’s request to use FMLA to care for a family member appears suspect because it involves what would otherwise seem to be a family vacation.

In Ballard v. Chicago Park District, No. 13-1445 (7th Cir., January 28, 2014) the Seventh Circuit Court of Appeals considered whether the FMLA applies to protect an employee’s trip to Las Vegas with her ill mother where the employee claims she was needed to provide physical and psychological care for her mother during the trip.

In Ballard, the employee was the primary caregiver for her terminally ill mother. The mother had always wanted to go on a family trip to Las Vegas and, to honor her mother’s request, the employee asked her employer for permission to take unpaid leave to go on the trip. The employer denied the request. However, the employee claimed she was not aware of the denial and proceeded to go on the trip with her mother, during which she served as the mother’s primary caregiver, including taking the mother to the hospital when there was an issue with her medication. The employee was subsequently terminated from her position for an unauthorized leave.

The employee filed a lawsuit under the FMLA. Her employer filed a motion for summary judgment, arguing that the employee did not “care for” her ill mother in Las Vegas for purposes of the FMLA, because she was already providing care at home and the trip was not related to medical treatment. The district court denied the employer’s motion for summary judgment, finding that the FMLA could apply to protect the absence so long as the employee was providing care, regardless of the location.

In affirming the district court’s decision, the Seventh Circuit noted a number of weaknesses in the employer’s argument.

The Seventh Circuit rejected the employer’s argument that the employee had to participate in ongoing treatment while on the trip in order to be covered by the FMLA, noting that the FMLA provisions refer to “caring” for a family member, not providing “treatment,” and that there was nothing in the statute or regulations to suggest that the employee had to be participating in the family member’s treatment while away from home, but not when providing care at home. In fact, the court recognized that the many of the types of care described in the regulations (e.g., providing assistance with medical, hygienic and nutritional needs), does not change because the person is not undergoing active treatment.

In making this ruling, the court confirmed that the regulations do not place any geographic limitations on where the “care” is provided and acknowledged that the FMLA does not provide that the care must be provided at the family member’s home. The court also considered the FMLA regulations describing the information that must be provided on the required medical certification for caring for a family member, emphasizing that “care” is defined expansively and does not include any geographic limitation on providing physical and psychological care.

In this case, the court noted that the employee’s mother’s medical, hygienic and nutritional needs did not change while she was on the trip and, in fact, the employee’s assistance was needed to address medication issues while they were away. At a minimum, the court concluded, the physical care provided by the employee was sufficient to fall within the scope of the FMLA’s coverage.

The Seventh Circuit acknowledged that its ruling is contrary to decisions in the Ninth and First Circuit Courts of Appeals in which employee trips relating to ill family members were determined to not be covered by the FMLA. Tellis v. Alaska Airlines, Inc., 414 F.3d 1045 (9th Cir. 2005) (emphasizing that caring for a family member under the FMLA involves some level of participation in on-going treatment); Tayag v. Lahey Clinic Hospital., Inc., 632 F.3d 788, 791 & n.2 (1st Cir 2011) (denying FMLA coverage for a healing pilgrimage to the Philippines and noting that the employee “properly does not claim that caring for her husband would itself be protected leave” if they traveled “for reasons unrelated to medical treatment of [her husband’s] illnesses”). In rejecting the employer’s reliance on these cases, the Seventh Circuit surmised that the conclusions in those cases did not follow the plain reading of the FMLA and its regulations which do not require that care for the family member be related to ongoing treatment nor place any geographic limitation on the care.

The lesson for employers?

Of course, employers considering the impact of the Ballard decision may be concerned that employees will attempt to abuse FMLA leave by planning trips and taking ill family members along to obtain FMLA coverage for the time away from work. Ultimately, however, while FMLA abuse is possible, as the Seventh Circuit emphasized, employers may (and should) utilize the medical certification process to flush out improper requests.

President Obama Signs Memo Telling DOL To Expand Overtime Eligibility

BNA Human Resources Report was kind enough to quote me in this great article about President Obama’s recent Memo to the Department of Labor, telling the DOL to expand overtime eligibility.

March Madness: Three Point Plays for HR Victories or Catastrophes at Work

It’s an exciting time for basketball fans as the NCAA College Basketball tournament – March Madness – kicks off this week. My attention will be on my dad’s University of Virginia Cavaliers, the hometown Villanova Wildcats and St. Joe’s Hawks and potential draft picks for my Philadelphia 76ers. But no matter who your favorite picks are, there’s an undeniable joy and passion that takes hold of everyone who lives and breathes basketball. How this translates in the workplace can be complicated. Play by the rules and it could actually be a benefit. However, if you’re not careful, it could be a workplace nightmare.

Millions of cubicles across America will be transformed into deep think-tanks as employees complete an important task at work: determining what teams to include on their brackets. It’s fun. It’s exciting – and it has absolutely nothing to do with work. Some HR managers see it as a distraction, but go along with it as long as does not disrupt productivity. Wide-ranging research suggests that March Madness participation can actually improve productivity in three ways:

1.    Morale: As people come out of the dark corners of their cubes and begin interacting with each other, it creates a happy environment to share creative ideas. And, we all know, happier employees work more productively.

2.    Inclusiveness: When employees feel as if they are included in something, they unknowingly create an equalizer that has the power to transcend title and position. So, everyone feels like they belong and have something fun to which they can look forward.

3.    Engagement: Employees are not only engaged with each other, but they’re more engaged with their work. The fact is: March Madness brings out the best in most of us.

But March Madness doesn’t bring out the best in all of us. And for HR, it can be a month of violation after violation. The truth is: playing bracket pools in exchange for cash at work can be a serious HR infraction for three reasons:

1.    It’s arguably illegal gambling: Although I have never seen any government agency storm an organization for pools, the fact is, office team betting on college sports is only legal in the state of Nevada. A possible solution is to offer a gift card prize as opposed to cash. It’s not perfect, but it’s better.

2.    It can create division among employees: Employees put a lot of energy into brackets. But the reality is, not everyone participates. And for those who do not take part in it, a stigma can be created – one that causes dissention and unhealthy cliques in the workplace. Not good.

3.    It’s a drain on company resources: How many photocopies, internet searches, and discussions by the water cooler does it take to get through March Madness? I suspect a whole lot. And if HR managers – even those into basketball – were able to itemize the actual costs in March relative their employees, they may do a whole lot more than fire off jump shots.

The most important thing to remember is that people will continue to play brackets and will do it in the workplace. It is incumbent upon HR to find ways to keep employees engaged and to let them have some fun. But it’s also important to develop guidelines to avoid that HR catastrophe just waiting to happen.

It’s an exciting time for basketball fans as the NCAA College Basketball tournament – March Madness – kicks off this week. My attention will be on my dad’s University of Virginia Cavaliers, the hometown Villanova Wildcats and St. Joe’s Hawks and potential draft picks for my Philadelphia 76ers. But no matter who your favorite picks are, there’s an undeniable joy and passion that takes hold of everyone who lives and breathes basketball. How this translates in the workplace can be complicated. Play by the rules and it could actually be a benefit. However, if you’re not careful, it could be a workplace nightmare.

Millions of cubicles across America will be transformed into deep think-tanks as employees complete an important task at work: determining what teams to include on their brackets. It’s fun. It’s exciting – and it has absolutely nothing to do with work. Some HR managers see it as a distraction, but go along with it as long as does not disrupt productivity. Wide-ranging research suggests that March Madness participation can actually improve productivity in three ways:

1. Morale: As people come out of the dark corners of their cubes and begin interacting with each other, it creates a happy environment to share creative ideas. And, we all know, happier employees work more productively.

2. Inclusiveness: When employees feel as if they are included in something, they unknowingly create an equalizer that has the power to transcend title and position. So, everyone feels like they belong and have something fun to which they can look forward.

3. Engagement: Employees are not only engaged with each other, but they’re more engaged with their work. The fact is: March Madness brings out the best in most of us.

But March Madness doesn’t bring out the best in all of us. And for HR, it can be a month of violation after violation. The truth is: playing bracket pools in exchange for cash at work can be a serious HR infraction for three reasons:

1. It’s arguably illegal gambling: Although I have never seen any government agency storm an organization for pools, the fact is, office team betting on college sports is only legal in the state of Nevada. A possible solution is to offer a gift card prize as opposed to cash. It’s not perfect, but it’s better.

2. It can create division among employees: Employees put a lot of energy into brackets. But the reality is, not everyone participates. And for those who do not take part in it, a stigma can be created – one that causes dissention and unhealthy cliques in the workplace. Not good.

3. It’s a drain on company resources: How many photocopies, internet searches, and discussions by the water cooler does it take to get through March Madness? I suspect a whole lot. And if HR managers – even those into basketball – were able to itemize the actual costs in March relative their employees, they may do a whole lot more than fire off jump shots.
The most important thing to remember is that people will continue to play brackets and will do it in the workplace. It is incumbent upon HR to find ways to keep employees engaged and to let them have some fun. But it’s also important to develop guidelines to avoid that HR catastrophe just waiting to happen.

Leadership and Gender Bias

I am pleased to post the third in a series of four blogs I am writing on leadership for SHRM Blog. This blog focuses on leadership and gender bias.

This blog should not be construed as legal advice, pertaining to specific factual situations or establishing an attorney-client relationship.

Five Reasons The Philadelphia Eagles Should Draft Michael Sam

University of Missouri All-American defensive end Michael Sam made headlines this week by announcing that he’s gay. It’s news because Sam is expecting to be drafted into the National Football League this Spring. If that happens, he’ll be the first openly gay player in the macho world of pro football.

The announcement has been met with all kinds of opinions and statements. Both the NFL and the NFL Players Association have applauded Sam, and said that the league will welcome him with open arms. Those were the official statements. Others – players and personnel people – have said rather bluntly that they would be leery of having Sam on their team and in their locker room. They’ve said they aren’t necessarily concerned about having a gay person (gasp!) in their midst, but rather worried about the sure-to-follow media circus, and of upsetting delicate team chemistry.

Well, those are excuses. Someone needs to lead on this issue. And as an employment attorney who believes in a diverse and inclusive workplace and a rabid Philadelphia Eagles fan, here are five reasons why I believe the Eagles would be wise to draft Sam:

1. It’s 2014. Today, we’re hearing the same arguments made against sexual orientation the locker room and workplace that we heard about African Americans sixty years ago. We found out then that those arguments didn’t hold water, and we’ll find out these don’t either.

2. It’s a chance to blaze a trail. Imagine the positive public relations the Eagles would get from drafting Sam. Yes, some people wouldn’t be happy, but public perception on LGBT issues has changed. The Eagles would be applauded by LGBT organizations, and by the media for having an enlightened attitude (an attitude which owner Jeffrey Lurie appears always to have had). Oh, and this may be wishful thinking, but it could help to educate the fan base (at least a small, but loud, portion of those who attend games and spew forth homophobic slurs far too frequently).

3. The distraction doesn’t last forever. Nobody knows this better than the Eagles, who famously signed Michael Vick soon after he walked out of prison. Vick committed horrible acts of violence against dogs, and some people will never forgive him… but many others have. The cheers Vick receives at Lincoln Financial Field on any given Sunday are a testament to this. While it hasn’t quite worked out on the field, having Michael Vick as part of the organization has been, on the whole, a positive. Please don’t hear this, in any way, as a comparison between Vick’s horrific conduct and Sam’s disclosure; however, what is clear is that distractions fade and performance rules.

4. Sam can play. Sam is an All-American and co-Defensive player of the year in the best conference in college football. He, by nearly all accounts, absolutely is capable of playing at the pro level. Now, he may or may not be the right fit for the Eagles defensive scheme, and that’s a football decision. Frankly, whether or not he fits what they do should be the only consideration.

5. It’s the right thing to do. Deep down, you know that Jeffrey Lurie knows that it doesn’t matter if Michael Sam is gay. And you suspect that coach Chip Kelly doesn’t care, as long as it helps him win games. All that any member of the LGBT community wants is to be judged on the merits of their talents. If you judge Sam to be worthy, you have to take him.

If you’re fortunate enough to walk along the concourse of the suite level of Lincoln Financial Field, you’ll see a great gallery of images that depict Philadelphia Firsts – the first computer, the first eyeglasses – you get the idea.

Let’s embrace another first, one befitting the City of Brotherly Love.

Wage and Hour Snow Storms

Now is a good time for a quick reminder of the wage and hour rules on snow storms and employee compensation.

Let’s start with the FLSA:

1. As a result of the FLSA’s salary basis requirement, if as a result of a snow storm you close for less than a full work week, you must pay an exempt employee for full or partial days that you are closed. However, you generally can require that an exempt employee use PTO during a day in which you close. Note: if sick days cannot be used for personal reasons, then an employer most probably cannot require that an employee use sick days in these circumstances.

2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day. If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time. Same caution about sick days. You also must pay him or her if he or she works from home.

3. No legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the snow; however, there is an important exception for non-exempt employees who are paid under the fluctuating work week.

Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed.

Also, if non-exempt employee works at home, you must pay for all time worked. Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid. Remember, break rules apply to working at home too.

Keep in mind state law may impose additional requirements or restrictions. For example only, in New Jersey, there are call-in requirements; that is, if an employee comes to work and is sent home, there is a minimum number of hours’ pay the employee must receive.

Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.

Be safe.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as creating an attorney-client relationship.

Leadership Paradox: Human Connections Versus the Law

I am pleased to post the second in a series of blogs I am writing on leadership for SHRM Blog. You can read my post here.

This blog should not be construed as legal advice, pertaining to specific factual situations or establishing an attorney-client relationship.

What the Supreme Court’s Decision on Donning and Doffing DOES NOT MEAN!

Case: Sandifer v. United States Steel Corporation

Background:  As a general rule, the FLSA requires employers to pay their employees for time spent changing into required protective clothing/gear at work.

Statutory Exception: Section 203(o) of the FLSA provides that time spent changing clothes or washing at the beginning or end of each workday may be excluded from compensable time if it is treated as non-work time by a collective bargaining agreement.

Key issue in the case: does protective gear constitute clothing subject to the statutory exception?

Monday’s Supreme Court decision: In construing section 203(o), the Court came up with its own definition of clothes, finding protective gear falling within it: “Dictionaries from the era of §203(o)’s enactment indicate that ‘clothes’ denotes items that are both designed and  used to cover the body and are commonly regarded as articles of dress.”

Limitation of decision: opinion interprets FLSA provision that applies only to union employees under collective bargaining agreement. Further, many  state laws do not include a  provision comparable to the exclusion under the FLSA so the potential benefit of the decision will not even be available to all unionized employers.

So, be careful of headlines that suggest a broader reach than the decision itself.

A more detailed alert to follow.

This short alert does not constitute legal advice, is not applicable to factual situations and does not establish attorney-client relationship. 

Rubber Band Jewelry Worth Every Penny

If you’ve got kids, grandkids, nieces or nephews in the age range of 7 to 12, you may have found yourself in search of a certain toy loom this past holiday season, or perhaps you received a lovely loom bracelet as a holiday gift. For those of you scratching your heads, this “loom” is a plastic, rectangular toy with hooks that kids (well, anyone) can use to make bracelets (and other jewelry items) out of colorful little rubber bands.

Loom bracelets are now everywhere. In fact, I’ve spotted colleagues sporting these bracelets in the office. My niece made me three: a starburst, a triple single and a butterfly. As she was churning them out, I commented: “you should charge for each bracelet.” Later, I thought: was I suggesting a piece-rate or commission-based compensation structure? There’s a big difference. Certain employees paid by commission are exempt from the FLSA’s overtime requirements. Employees paid on a piece-rate basis are not.

There’s a three-part test to qualify for the FLSA’s “commission exemption,” and, not surprisingly, one requirement (among others) is that the employee must be paid by “commission.” A recent district court case from the Northern District of Illinois provides some guidance what it means to be paid by commission. The case, Alvarado et al. v. Corporate Cleaning Service, Inc. et al, involved 24 current and former window washers seeking overtime pay, and the ultimate issue was whether the window washers were paid by commission or on a piece-rate basis.

The court said they were paid by commission because, in a commission-based system, “a sale is a precondition for the worker getting paid,” and, here, “the window washers can count on compensation only when a sale is made.” The court acknowledged that it was “less obvious” that the washers were paid by commission because they were one step removed from sales and had no control over whether a sale was made; however, the court said that an employee’s compensation can depend on sales even if the employee is not directly involved in sales.

The Alvarado court illustrated the distinction as follows (except that the court’s illustration involved a quilt maker, not my niece): Imagine that my niece has a contract to supply her colorful rubber band bracelets to a gift shop, and the shop will automatically pay her each time she provides a rubber band bracelet, regardless of whether a customer in turn buys that bracelet from the shop. To be sure, over time, the shop might tell my niece to make fewer rubber band bracelets if customer demand decreases. But in the end, my niece will still be paid for each bracelet made, instead of being paid for each bracelet sold by the gift shop.

Getting paid for each bracelet made is getting paid on a piece-rate basis whereas getting paid for each bracelet sold is getting paid on a commission basis (even if the employee getting paid had nothing to do with the actual selling).

The take-away here is that employers in retail and service industries may want to take a second look at their compensation structures to determine whether certain employees are getting paid by commission (even if in a “less obvious” way) and, if so, whether they qualify for the FLSA’s commission exemption. For those employers thinking about reclassifying their own rubber band bracelet makers (or any other employees) as exempt, be sure to consult an attorney before making changes to discuss the legal risks as well as to consider other jurisdiction-specific issues including applicable state law.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

Leadership = Influence

I am pleased to share my latest blog from SHRM Blog (my first blog on leadership). You can read the post here.

This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations.

Bullying at Work: Hard to Define, Even Harder to Ban

I am pleased to post my most recent blog on bullying for CNN’s Fortune.

Of course, we can help you prevent and correct this problem, please let us know.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO A SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

DMi – Change is Coming

It is with great pleasure and excitement that I welcome you into the New Year on behalf of the Duane Morris Institute. This year is our 5th anniversary, and we’re excited to announce that we are beginning 2014 with a strengthened commitment to empowering your leadership.

In the coming months, you’ll notice a new, modern aesthetic rolling out across our organization. You’ve come to expect current, valuable, and relevant education from DMi, and we’re updating our look to reflect that. But, beyond the modern appearance, the new look reflects the deeper changes we’re making as an organization.

We’re updating our website to function in a more user-friendly manner, with easier navigation and course registration. The technology that powers our online webinars has been improved and updated to make the entire experience even more valuable for those participating. You’ll also notice a refreshed presence for DMi across social media, with new Facebook, Twitter, and LinkedIn accounts dedicated to keeping you in the know.

That leads us to the other major aspect of evolution: our mission and vision as an organization. As the result of an internal discovery process, we have defined DMi’s true value and position in the industry, helping us focus on our message and value proposition to the public: Education that empowers your leadership.

Looking at this season’s new course line-up, you’ll see our mission reflected in education with a keen focus on leadership. From training managers on the benefits and risks of social media in the workplace, to discussing the most common mistakes made when firing an employee, our faculty has lined up a stellar course catalog that is full of timely and relevant topics.

Even more exciting, we’ve expanded our offerings to include additional leadership training and Lean-In Dialogue events, based on the success of last year’s. Stay tuned for updates on those as the year progresses.

We look forward to having you in class and hope that together we can help you accomplish your professional goals for 2014.

For a look at our updated brand and a preview of the new course catalog, please visit our new landing page Winter Courses.

Same Sex Spousal Benefits

You have an employee who work in Texas, one of the 32 states that does not recognize same sex marriage. The employee  resides in New Mexico, one of 18 states that recognizes same sex marriage. The employee was married to a person of the same sex in California.

For purposes of determining the employee’s spouse’s eligibility for benefits, do we look at:

1. State of celebration—where the marriage occurred
2. State of employment—where the employee works
3. State of residence—where the employee lives

The answer is 1: state of celebration. Regardless of whether the state in which the employee works or resides recognizes same sex marriage, the employee generally is eligible for spousal benefits under ERISA.  Why?  Please read this alert for legal analysis.

This blog should not be construed as legal advice, as establishing an attorney-client relationship or applying to specific factual situations.

Is 2014 the Year for a Wage & Hour Makeover?

The FLSA was passed back in 1938, but you might say that compliance has never been more “in style” than it is today. If you think your company is in need of a wage and hour “make-over” this year, consider discussing these 10 action steps with your attorney:

  1. Audit job positions classified as exempt.
  2. Audit workers classified as independent contractors.
  3. Develop or audit policies to expressly prohibit unlawful pay practices (e.g., improper deductions, “off the clock” work).
  4. Develop or audit the complaint mechanism for reporting improper salary deductions and other paycheck errors.
  5. Develop or audit time-keeping procedures for all non-exempt employees.
  6. Develop or audit accountability measures such as disciplinary policies for failure to abide by time-keeping procedures.
  7. Develop or audit procedures for correcting paycheck errors.
  8. Assess industry-specific pay practices for wage and hour law compliance (e.g., tip pooling arrangements, compensation for donning and doffing protective gear).
  9. Train managers and non-managers on wage and hour policies and procedures.
  10. Schedule annual and new hire trainings for all employees.

These action steps were prepared by Bruce J. Kasten and Natalie F. Hrubos for the 2013 annual Spring Seminar series presented by Duane Morris’ Employment, Labor, Benefits and Immigration attorneys.

Stay tuned for announcements about seminar and webinar opportunities in 2014.

Happy New Year!

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

EEOC FY 2013 Statistics a Mixed Bag For Employers

Each year around this time we employment lawyers anxiously await the EEOC’s release of it’s fiscal year statistics. We want to know whether our warnings to our clients that the EEOC is “increasingly active” and that the number of charges filed is “up” still ring true. Well, this week the EEOC released its 2013 fiscal year (Oct. 1 – September 30) numbers. And the numbers are a mixture of good and bad news for employers.

The good news (if you can call it that) is that there was a significant decrease in the number of charges filed. In FY 2013, 93,727 charges were filed, which is about 6,000 less than in both 2011 and 2012. This decline may be an indication that the economy is on the right track, because, in general, the worse the economy the more charges are filed. Employees who are out of work are obviously more likely to bring claims than those who remain employed.

The bad news is that the EEOC secured a record amount of settlement dollars from private sector employers – $372.1 million. This tells me that the EEOC is more agressively investigating charges and bringing lawsuits on behalf of employees. This is a trend that is likely to continue through the remainder of the Obama presidency.

Hashtag FLSA

You can learn a lot from social media pages. For instance, if your employees have used any of these hashtags, you may have a wage and hour law problem.

#allworkandnolunchmakesjackadullboy

If Jack’s using this hashtag, he probably worked through his lunch break. This isn’t necessarily a legal problem if he got paid for all the time he worked. However, if Jack’s employer automatically deducts 30 minutes of work time for lunch each day, there’s an increased risk that Jack isn’t properly paid when he skips his lunch for work.

If he did take his meal break, but ran his personal errands instead of eating lunch, that break time is probably not compensable. Generally, Jack doesn’t have to be compensated for his lunch break if it is a “bona fide meal period” under the FLSA. This means that the employee is “completely relieved from duty” for the purpose of eating (usually for 30 or more minutes).

However, if according to Jack, #anappleadayisallihavetimefor, his lunch break may be getting interrupted by work, making it generally compensable under the FLSA.

#bestpartofwakingupisfolgersnotemailsfrommyboss

If your non-exempt employee gets emails from her supervisor before she arrives to work, she may be working “off the clock” in violation of wage and hour laws. Working “off the clock” means the employee’s doing work, but not getting paid for that time because she hasn’t yet clocked in (or she’s already clocked out) for the day.

This is a legal problem even if she’s specifically told to wait until she gets into the office to check her emails, etc. The FLSA regulations state that work not requested but “suffered or permitted” is compensable work time. Thus, if an employer knows or has reason to believe that an employee is working, then the time the employee spends doing that work is compensable.

The “virtual workplace” presents a number of opportunities for employees to work off the clock including by using their smart phones to check emails over breakfast, logging on from their home computers at night to finish up a report, and taking calls while in transit.

Employers must develop a system for tracking and recording this time as compensable work time. If the #earlybirdgetsthewormbutnotpaid, the early bird’s employer risks “off the clock” wage and hour litigation and liability.

#thisjobissoeasyamonkeycoulddoit

If the employee using this hashtag is non-exempt, there’s no need to be alarmed. If, on the other hand, he’s classified as an exempt administrative employee, there is cause for concern.

To qualify for the administrative exemption, the employee’s primary duty must be office or non-manual work which is directly related to the management or general business operations of the employer or the employer’s customers. Additionally, the employee’s primary duty must include the exercise of discretion and independent judgment as to matters of significance.

The employee here may not be able to meet this “duties test” if the reason a monkey could do the job is because it requires no thought or because the employer provides the employee with a detailed instructional manual for use in performing his job tasks.

Keep in mind that if an exempt employee asks #doihavetodoeverythingaroundhere, his employer should consider whether his “primary duty” is comprised of exempt tasks or non-exempt tasks. If it’s the latter, despite being (mis)classified as exempt, the employee is probably entitled to overtime for every hour worked over 40 in a workweek.

Employees don’t have to use hashtags on social media to raise #FLSA issues. Managers should be trained to pay close attention to what employees are doing and saying about compensation issues. By being proactive, employers can effectively identify and address wage and hour concerns before they result in costly litigation.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

Give Me a Break

I am pleased to share with you my latest article written for SHRM’s HR Magazine.

Legal Trends
Give Me a Break
Vol. 58 No. 12
Know the rules for different kinds of work breaks.
12/1/2013

There’s no taking a breather from the requirements of the Fair Labor Standards Act (FLSA). Some of its most arcane requirements pertain, in fact, to breaks. Got all of those rules memorized? What about your managers—do they remember the rules? Probably not, if it’s been more than a year since your last FLSA training. No, it’s not required, but it’s the best way to reduce your potential (and realized) liabilities. So get out a pen and paper—it’s time for a refresher on the FLSA.

Rest and Meal Breaks

As a general rule, the FLSA does not require that employees (other than minors) receive any breaks, whether paid or unpaid. Rather, the FLSA’s regulations outline only when breaks must be paid if they are offered at an employer’s sole discretion.

The one exception to the general rule is that, as part of the Patient Protection and Affordable Care Act, employers now, under the FLSA, must provide nonexempt mothers with the time and space to express breast milk for one year after the birth of a child. Few employers limit this right to nonexempt employees only, and many states have laws that go further than the federal law.

Aside from lactation breaks, the regulations divide breaks into two categories: rest breaks and meal breaks. In terms of payment, different rules apply depending on the type of break.

For rest breaks, the regulations stipulate that an employer must pay workers if the period is 20 minutes or less. According to the regulations, breaks lasting five to 20 minutes are common and promote efficiency.

For meal breaks, the regulations stipulate that, ordinarily, an employer must pay workers if the break is less than 30 minutes. The regulations leave open the possibility that shorter meal periods may be noncompensable in special circumstances.

With meal breaks, the burden is on the employer to prove that special circumstances apply justifying the shorter break.

Keep in mind also that the regulations do not always fit today’s workplace reality. Sometimes it is hard to tell whether a break is to rest or to consume a meal.

For this reason, it is not surprising that some U.S. Department of Labor (DOL) investigators, as a matter of enforcement, have taken the position that an employer must pay workers for all breaks that are less than 30 minutes. That way, they don’t have to engage in a break-by-break analysis.

In such cases, the DOL’s position is inconsistent with its own regulations and case law. But a 30-minute rule does avoid litigation of that issue.

Even if a meal break is 30 minutes, that does not mean that it automatically occurs without pay. The employer must consider not only the length of the break but also whether the employee is free from work.

If the employer requires the employee to stay in his or her work area, it may have to pay the employee, even if the break is 30 minutes or more. Similarly, if the employer asks an employee to do any work during the break, it may have to pay for the entire break.

It is against this backdrop that this article discusses five common mistakes. Sadly, the risks are greatest when employers are flexible and employees earnest.

The Man in a Hurry

Suppose an employee gets a 30-minute unpaid lunch break. He asks if he can take 15 minutes instead on a regular basis so that he can be home as soon as possible after his kids return from school. Do you have to pay the employee for the 15-minute meal period even though you are accommodating his request for a shorter break?

Ordinarily, lunch breaks must be 30 minutes or more to be unpaid. This is not one of those exceptions that would qualify as a special circumstance. The presumption is against the employer and an issue for litigation.

Sad but true: Accommodate employees by giving them a short lunch break without paying them and you most probably run afoul of the FLSA.

An alternative way to accommodate the employee and not set yourself up for FLSA liability is to allow the employee to waive his lunch break entirely (so no extra pay). Like many people, he can eat something quickly while walking or working. That assumes you are not in a state where breaks are mandated and cannot be waived.

The Desk Diner

A different scenario: An employee takes her 30-minute meal break at her desk because she likes to be alone and read. It is her “quiet time.” However, if the phone rings, she will answer it. And if her boss is out of town, she will check her boss’s e-mail occasionally over lunch to make sure there are no emergencies. Is her lunch compensable?

There is always a risk that employees will be tempted to work if you allow them to remain at their desks or in their general work areas. While the federal DOL allows a de minimis exception, what is de minimis is determined in the aggregate (looking at day after day). Plus, not every state recognizes the de minimis exception.

Accordingly, if you are going to allow employees to remain at their desks or work areas during lunch, make explicit in writing that they cannot do any work of any kind during their lunch break. To take away the temptation to work, consider instructing them to turn the computer off and forward their phone calls to voice mail or to co-workers when they eat at their desks. This feels awkward but is less onerous than defending a collective action.

If employees do any work during their lunch, you may have to pay them for the entire lunch break (since they did not get 30 minutes of uninterrupted time)—not because you were flouting the law but because you were flexible and they were earnest.

Consider a timekeeping attestation at the end of the day that asks employees whether they did any work during their unpaid meal break. If they say yes, pay them but monitor them. If they say no but later claim they did, you have a strong defense, provided that management did not have actual or constructive knowledge of any alleged work done during the meal break. Supervisory training on this issue is critical.

Overeager Workers

Your employees get 30-minute lunch breaks. They are working on a major project for an important client, so many return to work before the 30 minutes are up. Most return between 25 and 30 minutes after logging out for lunch. Of course, they get paid as soon as they log back in to work.

The fact that the employees are eager to return to work most likely is not a special circumstance. The irony is that your best and more diligent employees may be your problem here.

Three possible solutions are available—none of which is particularly appealing but all of which are more desirable than a collective action.

Have the timekeeping system prohibit logins before the 30 minutes have expired and make sure no work is done until the minutes are up.

Have a supervisor monitor when employees return from lunch to prevent early returns.

Monitor, pay and discipline those who return early.

State, Federal Law Conflicts

Some state laws require an unpaid 20-minute rest break every day. Say the employer provides its employees with a 20-minute break in accordance with state law. How do you respond to the federal DOL when it tells you that the rest period must be paid according to the FLSA?

For example, under West Virginia law, employers must provide an unpaid 20-minute break during a workday of six hours or more. Under West Virginia law, bona fide breaks are not work time.

But even if breaks are unpaid under state law, they may be compensable under federal law. If you are required to provide a 20-minute unpaid rest break under state law, increase it to 21 minutes so you can argue that it should be unpaid under federal law, too.

The safest approach is to pay for all breaks that are less than 30 minutes. While that may mean a longer day for your employees, it will result in less time for you fighting in court.

Sneaky Smokers

Last example: An employer prohibits smoke breaks other than during lunch. A few employees sneak smoke breaks that average three minutes before and after lunch. When the employer discovers this, it tells the employees that it won’t pay for their smoke breaks and that they must clock in and out for smoke breaks; otherwise, they will be fired. Is this a lawful alternative to discharge?

There is no duty to provide smoke breaks. You can discipline employees for taking them, up to and including discharge.

What you cannot do is provide short smoke breaks that are unpaid. Smoking without permission is a rule violation that must be dealt with through performance management, not through compensation reduction.

What if the employee asks for the break as an accommodation because, after all, smoking is addictive?

Sorry, no dice. We don’t have to give Jack Daniels breaks when employees depend on alcohol, and we don’t have to give smoke breaks to those who depend on nicotine. That may be the only break the law gives us.

The Holiday Tale By The Jewish Guy Who Wears a Chai

I am pleased to share with you my latest blog from SHRM Blog. You can read the post here.

This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations.

Duane Morris Miami Breakfast Briefing Series

We are hosting a series of labor and employment law breakfast briefings in our Miami office, including one on December 5.  The topic for December 5 is “Labor and Employment Law Outlook for 2014”.  Click here to view the invitation.  I hope that you and/or your coworkers can attend some or all of the sessions.

Florida Minimum Wage to Increase to $7.93

A quick note – effective January 1, 2014, the Florida minimum wage will increase to $7.93 per hour.  This is a $.14 increase of the 2013 minimum wage.  The Florida minimum wage is recalculated each year to keep in step with the federal Consumer Price Index.  The federal minimum wage remains at $7.25.

Work Life Imbalance

I am pleased to share with you my latest blog from SHRM Blog. You can read it here.

This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations.

Prejudice Against ‘Unattractive’ Workers Can Have Ugly Ramifications

BNA Human Resources Report was kind enough to quote me in this great article about an employee’s appearance and the potential legal and employee relations concerns Human Resources and In-House Counsel confront in dealing with these issues. Read the article here.

 

When Exempt Employees Turn Into Pumpkins

It’s October. You go to a pumpkin patch. While you’re busy examining pumpkin after pumpkin, you notice a farm employee is busy replenishing the patch by unloading pumpkins from a truck.  When you’re finished, the same employee offers to help you haul your selections to the cash register.  Then he steps behind the cash register and completes the transaction.  You’re outraged when he says you owe $70 for 3 pumpkins.  You ask to speak with a manager.  When he tells you he is a manager, you’re even more outraged: there’s no way he meets the duties test for the executive exemption.

Even if we assume he customarily and regularly directs the work of two or more employees and has authority to hire and fire (generous assumptions), to qualify for the exemption, a manager must also have a “primary duty” of management of the enterprise.  What does that mean? Well, it means that a manager who spends the majority of her time performing non-exempt tasks – stocking shelves, waiting tables, parking cars – may have turned into a pumpkin.

Generally, the fact that a manager has management responsibilities is not necessarily enough to meet the exemption if he spends the majority of his time performing non-exempt tasks (e.g., unloading pumpkins).  This was the lesson learned from a recent California appellate court decision upholding a $26,184.60 award of overtime pay to a former assistant store manager who claimed she was misclassified as exempt under California state law because she spent more than 50% of her work hours performing non-exempt tasks such as bagging groceries and stocking shelves.

The court rejected  the employer’s argument that the trial court failed to properly account for hours the manager spent simultaneously performing exempt and non-exempt tasks (e.g., actively managing the store while concurrently performing some checking and bagging of customer groceries).  Under state law, the employee’s actual job tasks rendered her non-exempt despite her management role.

Under federal law, the amount of time spent performing exempt work is considered a useful guide in determining whether exempt work is the primary duty of an employee but time alone is not the sole test.  Rather, a determination of an employee’s primary duty “must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole.”

Factors to consider include, but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.

Employers should regularly assess the actual work performed by their exempt employees on a day-to-day basis to ensure they  meet (and continue to meet) the primary duty test under both federal and applicable state law.  It shouldn’t take a lawsuit to make you realize that your former manager was a pumpkin when all this time you thought she was a carriage.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

3 Employer Pitfalls in Donning and Doffing Policies

Donning and doffing is a hot area of wage and hour law that often leads to class and collective actions and, as a result, creates significant potential liability and litigation costs for employers. As I explain in a recent article for Law360, to minimize risk in this area, employers should consider three legal pitfalls associated with the donning and doffing activities of their employees. Click here to read the full article.

Forget the Fockers: Meet the Stored Communications Act

By way of legal background, the Electronic Communications Privacy Act (“ECPA”), enacted in 1986, is comprised of two statutes:  the Wiretap Act and the Stored Communications Act.  Historically, most litigation arising under the ECPA has involved the Wiretap Act, that is, where there are “interceptions” of wire, audio or aural communications (for example, listening to an employee’s phone call).

However, with the social media revolution, the Stored Communications Act (“SCA”) now is coming into play.  Generally speaking, in the employment context, the SCA makes it unlawful for an employer to have unauthorized access to an employee’s private social media sites.

More than a dozen states now prohibit employers from asking applicants or employees for their passwords to their private social media sites.  However, the SCA, which applies to employers in all 50 states and which comes with civil and criminal penalties, may go even further.

Ehling v Monmouth Ocean Hospital Service (D.N.J. 2013) is one of the first cases to focus on the application of the SCA to Facebook.  The facts of the case can be summarized succinctly.  The plaintiff-employee had a Facebook account.  The plaintiff friended a coworker.  The coworker, on his own initiative, provided management with copies of postings made by the plaintiff.

The plaintiff argued that the employer violated the Stored Communications Act.  The court held that the SCA applied.  However, the court also held that an exception to the general prohibition under the SCA on accessing stored communications also applied.

As the court noted, very few courts have addressed whether the SCA applies to Facebook wall posts.  There is no legislative history with regard to the intended application of the SCA to social media for a simple reason:  the SCA was enacted before the advent of social media.

However, the legislative history does provide some guidance.  As the court noted:  “The legislative history of the [SCA] suggests that Congress wanted to protect electronic communications that are configured to be private.”

The SCA  provides that whoever “intentionally accesses without authorization a facility through which an electronic communication service is provided . . . shall be liable for damages” under the SCA.  The SCA also provides for damages where an individual exceeds the authorization provided to him or her to access a facility.

For the SCA to apply, four (4) requirements must exist:  (1) there is an electronic communication; (2) that was transmitted by an electronic communication service; (3) the communication is in electronic storage; and (4) it is not public.  The court noted that Facebook wall posts that are configured to be private meet all four (4) criteria.

More specifically, the court held:  (1) Facebook wall posts are electronic communications; (2) Facebook wall posts are transmitted by an electronic communication service; (3) Facebook wall posts are in electronic storage; and (4) Facebook wall posts that are configured to be private are, by definition, not accessible to the general public.

After concluding that accessing an employee’s Facebook page is covered by the SCA, the court then dealt with whether there was an exception that would make the employer’s conduct in this case lawful.  The court focused on the exception which provides that the SCA “does not apply with respect to conduct authorized . . . by a user of that service with respect to a communication of or intended for that user.”

The authorized user exception applies where:  (1) access to the communication was authorized; (2) by a user of that service; and (3) with respect to a communication intended for that user.  The court goes on to define access as not being authorized if the authorization was coerced or provided under pressure.

In this case, the court concluded that all three (3) requirements were met.  The first requirement, however, is the one which is most significant for employers; that is, whether the employer’s access to the employee’s Facebook wall posts was authorized.  In other words, did the co-worker who was friended by the plaintiff provide the information to management without any coercion or pressure?

In this case, the co-worker testified that he voluntarily provided the information to management.  Management also testified that it received the information without soliciting it in any way.  Under these circumstances, it was an easy call for the court to find that the access was authorized.

However, not all cases are quite so simple.  Sometimes employees will tell management about an offensive posting, for example, racial, ethnic or religious harassment, but not provide a copy of the posting itself.  In these circumstances, what is management to do?

There are a continuum of options available to an employer, each with corresponding risk.  The seriousness of the legal risk associated with the alleged postings may inform, in part, the level of risk the employer is willing to take under the SCA.

The most direct response would be:  “Please provide me with a copy of the posting about which you speak.”  No matter how politely that is stated, because of the inherent power differential, a court could find that a mere request is coercive.

Slightly less direct:  “It would be helpful for you to provide us with a copy of the posting to which you referred.  Please understand that there will be no adverse action taken against you, regardless of whether you decide to provide us with a copy of the posting.”

Even more gentle:  We thank you for the information but cannot investigate or take corrective action without seeing it.

Which option, or variation of  it, makes most sense turns at least in part, as noted above, on what is at issue.  Consider the following examples.

On the one hand, if the posting includes stupid, but not illegal material, then there is no reason to take any risk under the SCA.  On the other hand, if the posting could expose the employer to legal liability, for example, the allegation being that the employee has posted racist rants, PHI under HIPAA, or inside information under the SEC, then the employer must balance its risks under statutes regarding the preceding against the risk under the SCA.

When all is said and done, there are a few things that are clear:

One:  An employer should never ask an applicant or employee for his or her private password.  This is true in all states, even if there is no specific state law.

Two:  Where an employee voluntarily provides an employer with a posting, the employer should document the voluntariness with which it was provided.  That is, the employer should document that it did not request the posting, but rather an individual provided it to the employer on his or her own initiative.

Three:  Where an employee raises a concern about a posting, but does not provide a copy of the posting itself, if legal issues are potentially implicated, the employer should formulate a request for the posting to maximize the likelihood that the employee will share the posting and also minimize the risk that a court find will find there to have been threats or pressure.

No doubt that any request by an employer exposes the employer to some risk.  But not requesting the posting also may expose the employer to some risk.  It is risk management, not risk avoidance.

THIS ARTICLE SHOULD NOT BE CONSTRUED AS LEGAL ADVISE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY CLIENT-RELATIONSHIP.

Florida Bill Would Protect Employee Social Media Passwords

There is a growing legislative movement to pass laws that prohibit employers from requiring employees to turn over their social media (i.e., Facebook) passwords. Such a bill was introduced in the Florida Senate on September 25, 2013 by Senator Jeff Clemens, a Democrat from Lake Worth. A number of other states have either already passed such laws, or have similar bills pending.

In technical terms, the Florida bill would prohibit employers from asking or requiring employees to provide the username and password to social media accounts, from basing hiring decisions on a candidate’s refusal to provide such information, and from retaliating against employees who refuse to provide the information. The bill provides employees and applicants a private right of civil action in court against companies who allegedly break the law.

I am unsure if such a law is necessary or even a good idea, mainly because I’m not aware of any trend by employers to seek or use such information. If a client were to ask me whether it was a good idea to require their employees to provide access to the private portions of the employees’ social media accounts, I would generally say no. Requiring employees or applicants to provide such information is likely to decrease morale and harm the company’s efforts to hire and retain good employees.

Perhaps more important, it is doubtful that employers should even want this type of access. Too much access can mean too much information about “protected characteristics” or “protected activity” on which employees can bring some type of discrimination or retaliation claim. For example, we may think we know a lot about our coworkers, but access to a coworker’s private Facebook page is likely to open up an entirely different realm of information, such as information about the person’s religious and political beliefs, social behaviors (drinking, drugs, sexual activities), and other similar private information. Employers are generally better off not knowing about this type of information when it comes time to make personnel decisions.

Due to the nationwide trend for passing such laws, I would say this bill has a good chance of passing. If it does, the law would go into effect on October 1, 2014. As always, stay tuned for updates on this and other pending employment legislation.

Leading the Disengaged

The Great Recession appears to have taken more than just jobs out of the economy. It has taken the spirit out of many workers.

In June of 2013, a very disturbing poll was released by Gallup.com. Workers were divided into 3 categories: engaged, disengaged and actively disengaged.

According to the poll, 70-percent of American workers are “disengaged.” A full 20-percent describe themselves as “actively disengaged.” Only 30-percent reported feeling “engaged.”

One could read this otherwise: only a 30% approval rating for leadership. While you cannot make everyone happy–indeed you should not try– a 30% approval rating is dangerously low.

The non-engaged may leave you. Employees are beginning to take the “at-will” right very seriously and job hop when they are not happy.

The actively non-engaged may sabotage you. Sadly, some of my clients have experienced this.

Of course, employees also may sue you. People sue people, even if the name of the defendant is an organization

If you want your organization to be productive, your employees cannot be a cabal of  zombies injured and disillusioned by the recent economic contractions. You need them to have passion and commitment.

Gallup’s conclusion:  leaders are responsible for the lack of engagement.  The report states:  “Organizations should coach managers to take an active role in building engagement plans with their employees, hold managers accountable, track their progress and ensure they continually focus on emotionally engaging their employees.”

But how can we as leaders achieve this goal?  How do we inspire emotional connection when many employees feel exploited by the new normal?

There was a song in the 70s by Spiral Staircase that included the lyrics “I love you more today than yesterday, but not as much as tomorrow. “ The theme song for the corporate world today could be:  “I expect more of you today than yesterday but not as much as tomorrow.”

Pulling back in terms of our demands is not an option.  The competition, domestic and foreign, has never been more fierce.

So we can’t retreat. We must continue to move forward  but we need more employees to go forward with us as engaged participants.

How do we turn disengaged, often hurt, employees into engaged participants?  How do we make some progress with the actively non-engaged, too?

On October 14, 2013, Lead with Giants will have a tweet cast in which we hopefully can share our experiences and ideas with each other so that we can lead engaged employees who in turn will help keep us engaged.

Retaliation: Corrective Action Without Admission

I am pleased to share with you my latest blog from SHRM Blog.You can read the post here.

This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations.

Wage and Hour Implications of the Government Shutdown

I am pleased to post a guest blog I wrote for the Philadelphia Business Journal regarding the wage and hour implications of the government shut down.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO A SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

It’s the (Technology) Age!

“It’s the age” is what everyone says when I say I had 5 weddings to go to this year.  The count included two in Philadelphia where I live, two in Cape May where I’m from, and most recently, one in Cancun, Mexico where my cousin and her (now) husband said “I do.”

To prepare for the trip to Cancun, I did what I always do when I travel overseas.  I switched my iPhone into international mode, and I packed up a laptop and a smattering of work papers to take with me. The 3 hour and 47 minute flight from Philadelphia to Cancun seemed like the perfect time to get some work done.

Fortunately, if an employee’s properly classified as exempt under the FLSA, then for compensation purposes, it doesn’t matter that the employee’s checking emails while boarding a flight, or waiting to get called to the buffet during a wedding reception, or sitting on the beach with a cucumber mojito in one hand and an iPhone in the other.  That employee’s paycheck can be exactly the same as if he or she had left the iPhone at home.  Unfortunately, not every vacationing employee getting work emails on an iPhone is properly classified as exempt.

The FLSA is clear that work not requested but suffered or permitted is compensable work time. So, if a non-exempt employee checks emails poolside, for example, that employee may argue that the employer is required to provide compensation for that time (depending on a number of circumstances including whether the time spent is “de minimus”).  That’s true even if the employer didn’t ask (or want) the employee to check emails, as long as the employer knew or had reason to know what the employee was doing.

A pending FLSA collective action filed by a Chicago police sergeant against the City of Chicago illustrates the possible legal ramifications associated with employee use of smartphones for work outside the office.  In his suit, the police sergeant claims that the City of Chicago violated the FLSA by failing to compensate him and a putative class of roughly 200 police officers for time spent reading and responding to emails via city-issued BlackBerries outside of normal working hours.  A federal magistrate judge granted conditional certification of the class earlier this year.

The critical lesson for employers is it generally doesn’t matter where or how or when non-exempt employees work.  Employers must be tracking, recording and compensating them for all work time, even if it’s happening on a beach in Cancun.

DOL Extends FLSA Coverage to Home Health Workers

The home healthcare industry has become big business in South Florida, as our population ages. People want to stay in their homes – and out of assisted living facilities – longer, and thus more and more healthcare is home-based.

Home health workers have always been exempt from the overtime and minimum wage provisions of the Fair Labor Standards Act (“FLSA”). But, yesterday the U.S. Department of Labor (“DOL”) announced a rule that will change that. Labor unions supported this DOL action, while many in the healthcare business community opposed because of the added costs associated with the change.

Here’s the background information. The FLSA requires the payment of overtime and minimum wages to non-exempt employees who work in interstate commerce. In 1974, Congress amended the FLSA to include coverage for “domestic service” workers such as maids. But, that amendment specifically excluded employees who provide “companionship services for individuals who (because of age or infirmity) are unable to care for themselves.” This language makes babysitters exempt from the FLSA and has, in recent years, been interpreted to make home health aides also exempt. That has been true for home health workers employed directly by the individuals or families they work for, as well as third-party home health providers.

But, now the DOL has announced that, effective January 1, 2015, “direct care workers who perform medically-related services for which training is typically a prerequisite are not companionship workers and therefore are entitled to the minimum wage and overtime.” This new rule will not affect the FLSA status of aides who work directly for individuals/families. Those workers will remain exempt. But, those home health aides who work for third party agencies will now be entitled to the federal minimum wage, plus overtime.

The Legal Intelligencer Animal Law & Rights Issue

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Affinity Group Danger Zones

I am pleased to post my recent article for SHRM’s HR Magazine:

Legal Trends
Affinity Group Danger Zones
Vol. 58 No. 9
Structure affinity groups so they are lawful.
9/1/2013

Smart organizations want to increase employee engagement and inclusion. One way to do that is through affinity groups.

What are affinity groups? They are groups of employees who have a common interest or characteristic. Sometimes the commonality is based on a factor that is not protected under equal employment opportunity (EEO) laws, such as the employees’ position. Usually, however, affinity groups are built around EEO-protected characteristics, such as race, gender and sexual orientation, and are supported financially by the organization.

There are obvious benefits to having affinity groups. They can increase morale, retention and innovation, as well as business, because of greater inclusion of diverse perspectives.

In some organizations, an affinity group may be seen as the antidote to marginalization of certain groups of employees. Affinity group meetings provide a place to experience business and social inclusion for those who are or feel marginalized.

Yet, these groups, if not structured properly, can have divisive and exclusionary effects. Moreover, there are legal risks that need to be navigated. Just because the goal of the affinity group is laudable does not mean that the group is lawful.

The following four hypotheticals highlight some of the legal and business risks of affinity groups, with recommendations on how to manage them.

Affinity Group For White Men

Employer ABC has affinity groups for women; people of color; and lesbian, gay, bisexual and transgender employees. The employer provides financial and other support for these groups so that they legally would be characterized as benefits of employment.

A group of white men asks to form an affinity group. The HR leader considers saying, “You don’t need one. You already have one; it’s called the senior leadership team,” which is made up of white men but for one exception.

The emotion behind the fantasy response may be understandable, but the response is, of course, inappropriate because legal risk would accompany it. Title VII’s prohibition on gender bias knows no gender. The same is true of racial bias. Denying a benefit to employees because they are white and male is, well, discrimination. But that does not mean that the request necessarily needs to be honored.

The key for an organization is to develop upfront nondiscriminatory criteria in determining whether it will provide financial or other support for a proposed affinity group. Among the criteria an organization may consider are the following:

How will the proposed affinity group help its members achieve the company’s mission and goals?

How will the proposed affinity group increase inclusion and business development among the individuals in the group (as opposed to employees generally)?

Are other affinity groups or mechanisms already in place that serve the need addressed by the request?

Making decisions about proposed affinity groups based on the answers to these kinds of questions doesn’t eliminate all legal risks, but it does minimize them.

Let’s return to the white men at Employer ABC. If the organization’s power circle is dominated by white men, the white men seeking to form an affinity group may have an uphill battle. But would that be true for a group of entry-level employees in human resources?

There is no clear-cut answer; rather, it depends on applying legitimate nondiscriminatory factors.

If Employer ABC has an affinity group for women and not one for men, it might consider including men in a broader affinity group on gender that would focus, although not exclusively, on issues women face that men don’t.

It is not that you need men to be part of the group for legitimacy. You don’t. But men can learn from being included, and men who are enlightened about the obstacles that women often face are more likely to become mentors and sponsors for female colleagues.

In her groundbreaking book, Lean In: Women, Work and the Will to Lead (Knopf, 2013), Facebook COO Sheryl Sandberg asks how organizations can survive, let alone thrive, if they exclude half of their talent. She quotes Warren Buffett as attributing his success, in part, to competing with only half of the talent pool.

Isn’t a business going to be more successful if it doesn’t exclude half of its talent—in this case, the half that often has disproportionate power?

Sandberg specifically refers to her many male mentors and sponsors. She recognizes that men are not the enemy; explicit and implicit bias is. And men and women alike have a stake in eliminating it.

Not all champions of equal employment opportunity support affinity groups. One concern is that such groups may separate those they are designed to benefit. This legitimate concern should affect how affinity groups are structured.

Religious Group Exclusion

Your organization has myriad affinity groups but none based on religion. In response, a group of born-again Christians asks for affinity group status and funding.

You don’t check the mission statement. That’s because you have an explicit exclusion for religious groups. Is that lawful? Is it desirable?

To be clear, this is not about saying yes to a Jewish group and no to a Buddhist group. This is about saying no to all religious groups.

Federal law prohibits discrimination based on religion. If you allow groups based on gender and race but not on religion, while treating all religions the same, are you discriminating against religion?

The 7th U.S. Circuit Court of Appeals said no. To quote the court, there are “no cross-categorical” claims under Title VII. In other words, the existence of affinity groups in one category—say, gender—cannot be used as the basis for arguing that it is unlawful not to allow an affinity group in another category, such as religion. (Moranski v. General Motors, 433 F.3d 537 (7th Circuit 2005)).

But other circuits could decide differently. The 7th Circuit’s analysis has been criticized as hostile to religion. Some states could reach different conclusions as well; many states provide greater religious protections than federal law.

Moreover, religion is of vital importance to many U.S. workers. Having a blanket exclusion for religious affinity groups risks alienating people of faith. Even if it is lawful for organizations to exclude religious affinity groups, they do so at their own peril: They risk alienating too much talent.

For those reasons, religious affinity groups should be allowed. The criteria that apply to affinity groups organized around gender and race should apply to them, too.

Nonetheless, there are some requirements that employers may wish to impose on religious affinity groups, such as that the group’s purpose cannot be to proselytize other workers. Appropriate limitations, rather than blanket exclusions, are the solution.

Behind-the-Scenes Discussions

Your company has an affinity group for those who identify themselves as racially diverse. It is principally, though not exclusively, made up of black and Latino employees. Some of the group members are managers.

During conversations, a few group members allege that a manager has made racist remarks. They further note that he gives plum assignments to white employees only.

Wanting the group members to feel comfortable, the managers in the room respect the employees’ wishes and do not report what they have heard.

Later, one of the employees is let go for poor performance. He claims race discrimination and notes in his allegations that management was aware of his concerns and did nothing. Where did management learn of these concerns? In the affinity group.

Managers who participate in affinity groups may place themselves in a Catch-22. They want to encourage open dialogue, but if the dialogue includes allegations of unlawful conduct, they cannot ignore what they know.

If they know it, their knowledge is imputed to the organization. While it is not always clear what an organization’s leaders must do, they cannot do nothing when they learn of potentially unlawful conduct.

To minimize this risk, you may want to make clear that the purpose of the affinity group is not to raise individual concerns and that employees who have them should refer to the employer’s EEO policy and use its complaint procedure.

Further, managers should be careful not to make absolute assurances of confidentiality that they may not be able to honor.

Of course, stating the rules is easier than determining whether a particular comment is a complaint that must be investigated. But you can minimize the risk, even if you cannot eliminate it, by setting parameters upfront.

NLRA Hurdles

Your affinity group of older employees develops a list of proposed changes to the organization. Management listens to the employees and decides to implement some of the changes.

While this sounds like a management success story, it may violate the National Labor Relations Act (NLRA).

Section 8(a)(2) of the NLRA makes it an unfair labor practice for an employer to “dominate or interfere with the formation or administration of any labor organization or contribute financial or other support.” The term “labor organization” has been interpreted broadly to include a variety of employee participation committees or groups that “deal with” an employer.

It could include affinity groups. Yes, the NLRA could make it harder to achieve equal employment opportunity, the linchpin of affinity groups.

Remember that the statute applies to union and nonunion employees alike. Employees are defined to exclude individuals who are considered supervisors and managers under the NLRA.

You could avoid any NLRA risk by limiting membership in your affinity groups to supervisors and managers. But then why have the groups at all? So, assuming you include employees, how do you manage the risk?

Typically, there is no on-off switch that determines when an affinity group becomes a labor organization at risk of unlawfully “dealing with” the employer. But there are a number of steps you can take to minimize the risk that your affinity group will be a labor organization and that your meeting with and considering its proposals will violate the NLRA as interpreted by the National Labor Relations Board.

You could make clear that the group is not authorized to offer any recommendations to management. Then you would avoid any chance of “dealing with” management. But that may diminish the affinity group’s effectiveness.

If you are going to allow the affinity group to make suggestions, you should stress that it is making suggestions only—just as any individual or group can—which management can consider or reject at its sole discretion. No bargaining sessions, please!

You absolutely should make clear that each member of the affinity group speaks for himself or herself and that the group is not representing those who share its defining attribute. In other words, the group does not perform a representative role. This is important not only for legal reasons but also for business reasons. Employees of a particular gender, race or sexual orientation are not monolithic in their perspectives, and some people may resent having others speak for them.

There are other steps you can take to minimize the legal risk, but they are beyond the scope of this article. The point for now is to be aware that the risk exists and that it should be managed.

This articles does not constitute legal advice, pertain to specific factual situations or create an attorney-client relationship.

Mad About Mad Men

As originally published by SHRM’s “We Know Next,” found here.

Mad About Mad Men
By: Jonathan A. Segal

Sexism is more than illegal. It is immoral and bad business.

There is more than a little bit of sexism in the roles portrayed in Mad Men.  So why are so many of us crazy about the show, even though we deplore the sexism that is part of it?

Of course, it is a TV show and not real life. And, the characters are not only psychologically interesting but also physically attractive.

And, there is great writing and acting.   The sex doesn’t hurt, either. I hear it sells!

But I think there may be something else going on.  But perhaps not consciously.

Today, fortunately, the stereotypic constraints for women (and men) are breaking down.   And, that is all good. But it can also be confusing for  supervisors and subordinates alike as they try to navigate life at the office.

Obviously, sexism in not entirely gone. Some men still visit strip clubs while away on business.  But only a knuckle dragger who has no place in the modern workplace would suggest that women should go along to get along.

But when roles are not clear, and the bias that exists is unconscious or covert, it creates ambiguity. With ambiguity comes anxiety.

While there is psychological complexity in Mad Men, there is not a lot of ambiguity in terms of gender roles.  And, perhaps one of the reasons we are fascinated by it is because we are seeking a workplace that’s a little less ambiguous, even though it is deeply flawed in its clarity.

Don Draper is the likeable but the licentious alpha male who pursues and gets what he wants from his workplace, economically as well as sexually. In contrast, Red is well…Red.  In addition to how she presents herself in the workplace, she makes sure that the other women “know their place” in the workplace.

All accept their gender-defined roles, except for Peggy. She will not accept the gender role assigned to her.   She is ambitious and we will see soon how far her ambition takes her.

But Peggy struggles with her own ambition.  And those in the 1960 Boys’ Club around her struggle with her ambition, too.

The ambivalence in and about Peggy still exists in our workplaces today.  Yes, it is less conspicuous and often unconscious, but we deceive ourselves if we believe it is not there.

Assertive women still face unfair “Catch-22s” every day.  Be directly assertive and you may be branded with Scarlett B.  Be more indirect and you may be seen as weak and/or underhanded.

And, many men are confused by the sea change.  How should we behave?

I recently gave a talk for executives about gender bias.  After the talk, I took the elevator down to the lobby with some of the participants.  When the door opened, no one knew what to do.  I had a “brilliant” suggestion: those closest to the opening leave first.

So we look with distaste at the sexism and all that which goes with it.  But, perhaps, we also yearn, to some degree, for greater clarity. Guess what: we can’t have it.

Stereotypes define roles. We now need to define our roles for ourselves without society unfairly assigning them to us.

The freedom is of course liberating and for the best. But it is not without some anxiety.

But, take a break from anxiety, and enjoy Mad Men this weekend.  I know I will.

THIS ARTICLE SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP.

For Men and Women Who Care About Male Colleagues

We moved our October 15 event, Lean In Dialogues, to another center city location.  Easy access in and out of city. Click image below.

We are filling up the magnificent space very  fast. Only concern: not as many men have signed up, as of now, as we had hoped.

Smart men know that they benefit from gender equality . Smart men also would benefit in hearing what women in power may never have told them; you’ll hear it here.  We have seen many men felled because they made mistakes that could have been avoided.

If interested, please register ASAP

Women: of course, the same invite is extended to you but I had to get the attention of the men.

If interested, please e-mail Taylor that you are registering. Taylor’s email address is tmreynolds@duanemorris.com

We effectively have changed forum 3 times to meet demand.  We need to monitor attendance because we cannot change again.

Note the panel. True honor to facilitate.

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No Summer Vacation for the Office of Special Counsel

The Office of Special Counsel for Immigration Related Discrimination (OSC) has been very busy in the last few weeks. While many employers and their employees have been enjoying traditional August vacations, the OSC has been conducting investigations, bringing suit and issuing advisory opinions on discrimination and compliance in the I-9 process. A rundown of their latest actions is below:

Requiring Green Cards for I-9 Completion

Forever 21, a popular clothing retailer, has been fined for the illegal practice of requiring a foreign national to provide a green card during the I-9 process. Forever 21 made the mistake of refusing to accept an Employment Authorization Document (EAD) and telling the employee to present a green card for completion of the I-9. The individual, who was employment-authorized as an applicant for permanent residence, was forbidden to work following the rejection of her EAD. Pursuant to the settlement agreement, Forever 21 will pay $1,705.50 in back pay to the charging party, pay $280 in civil penalties to the U.S., and receive training on the anti-discrimination provision. To read more, click here.  This situation is an example of document abuse, when an employer refuses to accept legal documents and/or requests more or different documents than what the employee presents.  This situation can be easily avoided by the training of employees who are responsible for the I-9 process.

Requiring an EAD for I-9 Completion

SOS Employment Group made the mistake of rejecting an un-restricted social security card and valid driver’s license of a foreign national with refugee status. The company committed document abuse when it rejected these documents and asked the employee to present an EAD at both initial hire and when subsequently re-verifying the refugee’s employment authorization. Pursuant to the settlement agreement, SOS Employment Group will pay back pay in the amount of $9,157.50 to the charging party and $1,200 in civil penalties to the U.S. and receive training on the anti-discrimination provision. To read more, click here.

Re-Verification of I-9 Documents by General Contractor Discouraged

The OSC has issued a Technical Assistance Letter in response to a question from an employer as whether it is permissible for a general contractor to re-verify I-9  documents presented by the employees of a subcontractor at any time during the contractor-sub-contractor relationship.  The answer according to the OSC is No, as this practice may constitute document abuse and citizenships status discrimination.

The OSC explains that this practice is problematic due to the  passage of time and the fact that the employee many no longer have the documents originally presented: The document(s) has expired and the employee now has a newer version of the originally presented document The employee has a different document due to adjustment of immigration status (i.e., from a lawful permanent resident to a U.S. citizen) and has forfeited his or her originally presented document; or The document has been lost, stolen or misplaced.

The OSC also explains that  “To the extent such individuals are barred from employment, they may perceive that the general contractor and/or subcontractor has discriminated against them based on their citizenship or immigration status. Because the proposed practice relates to the original 1-9 verification process, such employees might also allege discriminatory I-9 practices in violation of the anti -discrimination provision.”

Sharing I-9s with Payroll Companies Prohibited

In another Technical Assistance Letter, the OSC addresses an employer’s question as to whether when changing payroll companies it would be permissible to provide the new company with all I-9 forms for the purpose of data sharing. The OSC, relying on I-9 privacy requirements, answers in the negative.

8 C.F.R. § 274a.2(b)(4) states the following: (4) Limitation on use of Form 1-9. Any information contained in or appended to the Form 1-9, including copies or electronic images of documents listed in paragraph (c) of this section used to verify an individual’s identity or employment eligibility, may be used only for enforcement of the Act and sections 1001 , 1028, 1546, or 1621 of title 18, United States Code. As a result, the OSC stated, “[i]n our view, sharing Forms 1-9 with a private entity in order to have that entity verify employees’ identities for payroll purposes is not a use related to enforcement of the Act or one of the specified criminal laws, as set forth in the statute and accompanying regulations.” The OSC also reaffirms that the practice of allowing a third party vendor to review I-9 forms  may result in the  third party vendor questioning the sufficiency of documents presented to the employer, which documents the vendor would have not seen in their original form. “To the extent the employer requests additional or different documents from an employee based on the vendor’s scrutiny of Forms 1-9, the request could be perceived by the employee to constitute document abuse in violation of the antidiscrimination provision of the INA.”

Similarly, use of information gathered during the E-Verity process, such as print-outs of E-Verify results is also subject to similar restrictions on its use. Under the E-Verify MOU, an employer must “use the information it receives from SSA or DHS pursuant to E-Verify and this MOU only to confirm the employment eligibility of employees as authorized by this MOU.” Art.H, C.l3. Further, an employer is required to ensure that the information is “not disseminated to any person other than employees of the Employer who are authorized to perform the Employer’s responsibilities under this MOU, except for such dissemination as may be authorized in advance by SSA or DHS for legitimate purposes.” Id. Additionally, the E-Verify MOU states that information which the employer receives from SSA is governed by both the Privacy Act and the Social Security Act, and that misuse of the information may result in criminal penalties. Id.; Art. II, C14. There may be other relevant federal, state, or local laws, regulations or executive orders regarding the dissemination of personally identifiable information (PH) similar to that contained in the E-Verify print out and Form 1-9 by which your client must abide.

New Information Sharing Agreement between OSC and NLRB

The OSC and the National Labor Relations Board executed a Memorandum of Understanding allowing the NLRB to make referrals to OSC, with the express authority of the NLRB charging party, when a matter before the NLRB suggests a possible violation of the anti-discrimination provision, such as verification of employment authorization, in the I-9 or E-Verify process, that appears to be discriminatory based on citizenship status or national origin.

Similarly, OSC will refer matters to the NLRB that appear to fall within that agency’s authority, such as infringement on the right to form, join, decertify or assist a labor organization, and to bargain collectively through representatives of their own choosing or to refrain from such activities.  The MOU also provides for cross-training and technical assistance to ensure that staff within each agency can identify appropriate referrals.  OSC has more than 50 partnership agreements with federal, state and local agencies, including U.S. Citizenship and Immigration Services and the Equal Employment Opportunity Commission.  For More information click here.

Documentation In Health Care: Knife in the Malpractice Claim?

In the employment context, we often hear “document, document, document.”  But keep in mind that the documentation you write to employees to reflect problems with their performance or behavior later can be used against you in a medical malpractice claim.

Let’s assume you have a doctor and his level of care does not meet standard.  And, let’s further assume he should be terminated.

If you terminate him for sub-quality care, providing multiple examples, that label, and accompanying examples, may be used against you in a medical malpractice claim involving that doctor.

What if you say instead, the doctor failed to provide the optimal care we demand with only a fewer less extreme examples and making clear that they are only examples (so you can still raise others).  You can still argue that the care, while not optional, was not negligent.

Is sub-optimal as strong as sub-standard in defending an EEO claim?  Probably not.

But we need to look not only at EEO but also malpractice risks.  Almost always, potential liability in medical malpractice cases is higher than in employment cases.

This is but one many documentation errors that health care providers can make when managing employees.  With training, managers are better able to nuance the reason for termination so they can defend a wrongful discharge claim without writing what may be a smoking gun for plaintiffs’ lawyers in a malpractice claim.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

In Defense Of Sheryl Sandberg

I am pleased to post my recent blog for SHRM Blog, In Defense of Sandberg. While Sandberg needs no defenders, I will.

Pennsylvania DOT Adds 8 Languages to Driver’s License Test

On July 22, 2013, Pennsylvania joined New Jersey, New York and many other states by making its written driver’s license  test available in multiple languages. The test will now be available in Arabic, Chinese (Mandarin), French, Hindi, Korean, Russian, Ukrainian, and Vietnamese. Prior to this announcement the test had been available only in English and Spanish.

The test will be continue to be administered on the same knowledge testing equipment as before the change and will have both text and audio. The only exception to this policy is the Hazardous Materials Endorsement Knowledge test, which is only offered in English, as required by State and Federal law.

With the addition of these 8 languages, PennDOT has now disallowed the use of translators during the knowledge test as well as for skills tests and special point exams. However, there is still a mechanism available for those who do not speak one of the 10 languages available:  Applicants seeking licenses should have their translator contact PennDOT at 1-800-932-4600 or  717-412-5300 to request a Knowledge Test Translation Authorization Letter and provide contact information as well as the location where the test will be taken and the required language. The translator will be contacted by PennDOT within 5 business days to discuss the request.

PennDOT indicates that it will continue to monitor the languages  customers are requesting and consider offering additional languages if a need is identified.

While this is a positive move for speakers of the 8 additional languages made available, the new no-translator policy without prior approval will be difficult for PennDOT to administer and will delay the licensing process for many.

A better solution for PennDOT would be to follow New Jersey’s lead and continue to allow translators in the languages in which the test is not available.  New Jersey permits translators if they meet one of the three criteria listed below:

    • A full-time faculty member of a state-accredited college or university with proper identification from the institution
    • A priest, minister, rabbi or other religious leader of a recognized organization with credentials of association with the organization
    • An individual with an interpreter identification card issued by the U.S. Department of State, Office of Language ServicesThis solution address the problem of having testing results compromised by the use of biased or faulty interpreters, while still permitting test takers easy access to the agency and the test taking process. PennDOT’s  new process, with its pre-approval requirement, forms to be completed and other bureaucratic processes will greatly hamper the test taking process for foreign speakers in languages not currently available.

In New Jersey the written test is available in English, Arabic, Chinese, French, Spanish, Korean, Polish, Portuguese, Russian and Japanese. In New York the test is available in Chinese, English, Haitian Creole, Italian, Korean, Russian and Spanish.

Retaliation: Breaking Bad News To Management Can Be Challenging, Even Dangerous, For HR

BNA Human Resources Report was kind enough to quote me in this great article about retaliation in the workplace and the potential perils to Human Resources in dealing with these issues.

 

NJ SAFE Act Requires Unpaid Leave For Victims of Domestic Violence/Sexual Assault

New Jersey Governor Chris Christie recently signed into the law the New Jersey Security and Financial Empowerment Act (NJ SAFE Act).  The NJ SAFE Act, which will go into effect on October 1, 2013, requires both private and public employers with twenty-five (25) or more employees to provide twenty (20) days of unpaid leave to an employee who is the victim of domestic violence or a sexually violent offense.   The Act also allows an employee to take such leave when the victim of domestic violence or sexually violent offense is the employee’s child, parent, spouse, domestic partner or civil union partner.

Under the SAFE Act, an employee may elect, or the employer may require, the employee to take accrued PTO time during the leave.   The new law also contains certain employee notice and documentation requirements and will have an impact on an employee’s FMLA/NJFLA leave.   Accordingly, employers must review and revise their leave of absence policies to maintain compliance with the Act.

Under the Act, individual employees can bring a private cause of action and employers can be fined of $1,000 or up to $2,000 for the first violation and up to $5,000 for any subsequent violation of the Act.  The SAFE Act further prohibits employers from committing or threatening termination, harassment, retaliation or discrimination against any employee who exercises his or her rights under the Act.z

New Jersey Governor Chris Christie recently signed into the law the New Jersey Security and Financial Empowerment Act (NJ SAFE Act). The NJ SAFE Act, which will go into effect on October 1, 2013, requires both private and public employers with twenty-five (25) or more employees to provide twenty (20) days of unpaid leave to an employee who is the victim of domestic violence or a sexually violent offense. The Act also allows an employee to take such leave when the victim of domestic violence or sexually violent offense is the employee’s child, parent, spouse, domestic partner or civil union partner.

Under the SAFE Act, an employee may elect, or the employer may require, the employee to take accrued PTO time during the leave. The new law also contains certain employee notice and documentation requirements and will have an impact on an employee’s FMLA/NJFLA leave. Accordingly, employers must review and revise their leave of absence policies to maintain compliance with the Act.

Under the Act, individual employees can bring a private cause of action and employers can be fined of $1,000 or up to $2,000 for the first violation and up to $5,000 for any subsequent violation of the Act. The SAFE Act further prohibits employers from committing or threatening termination, harassment, retaliation or discrimination against any employee who exercises his or her rights under the Act.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship

 

DMi Presents: A Dialogue About Leaning In

In her provocative and vitally important book, Lean In: Women, Work, and the Will to Lead, Sheryl Sandberg ends with: “My goal is that this book is not the end of the conversation but the beginning.”

We will continue the conversation with a panel composed of successful women who are role models for women and men alike. Please save the date!

Tuesday, October 15, 2013 | 4:00 p.m. to 6:00 p.m.
Reception immediately to follow.

She’s Too Sexy For Her Job

The all-male Supreme Court of Iowa re-affirmed its holding that an employer did not engage in sexual harassment when an employee was fired by her boss because he found her sexually irresistible. He was afraid that, if she remained employed, he would not be able to control the temptation to have a sexual relationship with her in violation of his marital vows.

The Court held this was not because of her gender but because of his “feelings” specific to the employee.  But wouldn’t that same analysis apply to quid pro quo harassment?  Quid pro quo harassment occurs, among other circumstances, where an employer fires a particular employee because she or he refuses to submit to “sexual feelings” that a manager has for her or him.

In both cases, the manager’s actions are based on feelings.  In both cases, those feeling relate directly to gender.

How can it be unlawful to terminate an employee because she won’t pull down a manager’s zipper but lawful to terminate an employee because the manager is afraid he will pull down his own zipper?

Not everything unfair is unlawful.  But, in this case, I would be surprised if the unfairness were not deemed unlawful by the EEOC under federal law.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR CREATING AN ATTORNEY-CLIENT RELATIONSHIP.

Boys Without A Club

My most recent blog, Boys Without A Club.

Published by SHRM Blog.

This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations.

Supreme Court’s Affirmative Action Case: Not About But Entirely About Employment

In Fisher, SCOTUS upheld (at least technically) affirmative action in higher education. While the Court reaffirmed that student body diversity could be a compelling state interest, the Supreme Court has made the burden so high for a program to be “narrowly tailored” that the Court has all but gutted “honest” affirmative action.

What about employment?  While the Supreme Court’s case has nothing to do with employment, it has everything to do with employment.  Same decision makers!

Historically, SCOTUS has offered more flexibility for voluntary affirmative action in education than in employment.  And, now, SCOTUS has made it even harder in education.

SCOTUS has never upheld voluntary affirmative action in employment absent a remedial purpose (narrowly defined).  The lower courts have held almost unanimously, if not unanimously, that, in the absence of a remedial purpose (narrowly defined), employers cannot give race,  gender, etc. a “plus,” even where the goal is laudable, that is, to create a culturally-diverse workforce.

What does this mean for diversity programs?  It means employers, now more than ever, must do two (2) things:

1. From a business perspective, make sure their legal hiring, promotional, mentoring, etc. practices are inclusive and tap into the talent in diverse communities.

2. From a legal standpoint, focus on diversity in experience, perspective, contacts, etc. and not race, gender or other protected factor.

Please e-mail me at jsegal@duanemorris.com for articles that address the above two points in more detail.

This blog should be construed as legal advice, creating an attorney-client relationship or applying to specific factual situations.

Employers Advised to Use Extreme Caution With Social Media Background Checks

Employers often say they want to access social media information about a job candidate because they want to know as much about him or her as possible, but they must be very careful not to violate anti-discrimination laws. Partner Michael S. Cohen gives recommendations to employers regarding social media considerations for job candidates in an article in the Bloomberg BNA Daily Labor Report.

Supreme Court Affirms Class Action Waiver

On June 20, 2013, the U.S. Supreme Court in American Express Co. v. Italian Colors Restaurant, upheld a provision in an arbitration agreement that barred class actions, even where litigation of individual claims would be economically infeasible.

Several merchants who accept American Express credit cards sued American Express and a subsidiary alleging that American Express used its monopoly power in the charge card market to force merchants to agree to pay excessive rates for transactions in violation of the Sherman Antitrust Act. The agreement between American Express and each of the merchants contained an arbitration clause which provided that “there shall be no right or authority for any Claims to be arbitrated an a class action basis.”

American Express sought to enforce the agreement and compel individual arbitrations. In opposing the motion, the merchants submitted a declaration from an economist who estimated that the expert analysis necessary to prove the antitrust claims could exceed $1 million, while the maximum recovery for an individual plaintiff would be less than $40,000, even when damages were trebled.

The Second Circuit Court of Appeals had previously held that because the merchants had established that they would incur prohibitive costs if compelled to arbitrate individually, the class action waiver was unenforceable and the arbitration could not proceed. American Express sought review by the Supreme Court.

In a 5-3 decision authored by Justice Scalia, the Court upheld the class action waiver despite the high cost incident to litigating the individual claims separately. The Court began its analysis by recognizing the Federal Arbitration Act’s (“FAA’s”) “overarching” principle that arbitration is a matter of contract and that, absent contrary congressional command, courts must rigorously enforce arbitration agreements according to their terms, including the rules under which arbitration will be conducted. The Court held that antitrust laws do not guarantee an affordable path to vindicate every claim and do not preclude a waiver of the class action. In fact, the Sherman Act predates by decades the class action rule (Fed. R. Civ. P. 23) invoked in the case. The Court further held that Rule 23 does not create an entitlement to a class proceeding.

The Court next addressed, and rejected, the main argument urged by the plaintiffs — that if enforcement of the class action waiver prevents the “effective vindication” of substantive federal rights, the class action waiver is contrary to public policy and cannot be enforced. The majority acknowledged that prior cases suggested that there was an “effective vindication exception” to the FAA. The Court reasoned, however, that this judge-made exception originated as non-binding dictum in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. opinion (a 1985 Supreme Court case). Although acknowledged in several subsequent cases, the “effective vindication” rule had never been applied to invalidate an arbitration agreement.

The Court focused on the on the language in Mitsubishi Motors indicating that the exception identified in that case was designed to protect the “right to pursue statutory remedies.” This language from Mitsubishi Motors, the majority concluded, barred contract provisions “forbidding the assertion of certain statutory rights” but did not apply to class action waivers or other provisions that simply increase the cost of proving a claim. In other words, an arbitration agreement cannot eliminate substantive rights (e.g., a limitation on the right to recover attorney’s fees where the statute provides for the recovery of attorney’s fees), but the arbitration agreement can alter procedural rules that adversely affect the economics of pursuing a claim so long as the right to pursue the claim is not eliminated.

The Court suggests that a contrary rule would be unworkable. Courts and parties would be forced to preliminarily litigate the costs associated with proving the elements of plaintiffs’ claims and the potential damages that might be recovered on those claims in order to assess the resulting economic feasibility of the claim and determine whether an arbitration agreement could be enforced. The Court held that such a regimen “would undoubtedly destroy the prospect of speedy resolution that arbitration . . . was meant to secure” and chided the dissent for seeking to impose that burden on federal courts.

In an dissenting opinion, Justice Kagan (joined by two justices) expressed concern that the majority’s approach was a green light to future litigants to create impediments to the effective vindication of rights through artful drafting of limitations in arbitration agreements. For instance, arbitration agreements might (a) impose high filing fees, (b) provide a one-day statute of limitations, or (c) prohibit economic testimony in antitrust cases, among other things. Justice Kagan argued that the “effective vindication rule” barred not just limitations of substantive rights in arbitration agreements, but also barred enforcement of any term in an arbitration agreement that would effectively “confer immunity from potentially meritorious federal claims.”

The decision in American Express continues the Court’s recent trend of giving parties to an arbitration agreement great latitude in limiting procedural rights and strictly enforcing the terms of arbitration agreements regardless of the disparity in bargaining power and regardless of the practical effect such procedural limitations may have on the economics of litigating low-value claims. The Court’s view of the effective vindication exception is so narrow that it may no longer serve any meaningful purpose. The only provision in an arbitration agreement that would clearly be barred by the exception is an express prohibition on the assertion of substantive statutory rights.

One might think from at least some of the majority’s language that, where a party is litigating a claim under a statute that provides for collective litigation (e.g., the Fair labor Standards Act), a class action waiver would be unenforceable. An agreement containing a class action waiver would confront a “contrary congressional command,” – a situation where the majority indicated courts should reject and refrain from enforcing the class action waiver. However, that door was closed long ago by the Supreme Court’s decision in Gilmer v. Interstate/Johnson Lane Corp., a 1991 case where the Supreme Court enforced a class action waiver in an arbitration agreement even though it was applied to an age discrimination claim. The ADEA, like the FLSA, expressly allows for collective actions. That case held, and American Express repeats, that class action waivers will survive even where collective litigation is authorized by the same statute creating the right being litigated. A class action waiver must be expressly barred before the courts can disregard the waiver.

The Court’s opinion makes class action waivers virtually unassailable absent specific federal legislation to the contrary or evidence that such contracts are unconscionable under general principles of unconscionabilty (The FAA forbids state-created rules that impose requirements on arbitration agreements not imposed on contracts generally). Unconscionability still exists as a defense to a class action waiver if one can show that the agreement is unconscionable for reasons other than the existence of the class action waiver and a finding of unconscionability would in no way frustrate the primary purposes of the FAA. Companies should be able to craft arbitration agreements that will survive such challenges although the arbitration agreement must clearly indicate that class arbitration is not permitted. Ambiguous language has been held to constitute an agreement to engage in class arbitration.

In sum, as a result of the decision in American Express, a court will provide no relief from an arbitration agreement just because individual arbitration is expensive or inconvenient, even if federal statutory rights are involved. But a class action waiver will not provide de facto immunity from the law. The class action waiver will offer American Express no protection from an enforcement action on behalf of a class by the Federal Trade Commission or the Department of Justice. Similarly, a class action waiver in an employment agreement will provide employers no protection from an enforcement action on behalf of a class by the Department of Labor, the EEOC, or the NLRB (although liability can be substantially limited through careful drafting). Moreover, in a 2012 decision, D.R. Horton v. NLRB, the NLRB ruled that class action waivers in employment agreements are unlawful under the National Labor Relations Act because they prevent employees from engaging in protected concerted activity. Several courts have rejected the NLRB’s position and refused to enjoin use of arbitration agreements containing class action waivers. In view of the Supreme Court’s pro arbitration and anti-class action leanings, the judicial resistance to the NLRB’s efforts to restrain use of class action waivers in employment agreements will ultimately be resolved against the NLRB and in favor of the employer.

I Know You Have Unpaid Interns – But, Do You Really Have Unpaid Interns?

Summer is here and students, both college and high school, are looking for employment. For an employer that may be able to provide “valuable” work experience to these students, some individuals may be willing to work for free, just to gain this valuable experience. As made clear in the recent New York federal court decision involving a major movie studio, allowing or requiring certain individuals to perform work for your organization without receiving compensation comes with very real legal risk.

Under the Fair Labor Standards Act (“FLSA”), subject to a few limited exceptions, those who perform work for your organization are employees and, therefore, generally must receive at least the minimum wage for hours worked. The FLSA defines the term “employ” very broadly as including to “suffer or permit to work.” There is, however, a circumstance under which the Supreme Court has held that the phrase “to suffer or permit to work” should not be interpreted to make an individual whose work serves only his or her interest an employee of another who provides instruction or assistance. This carve-out applies to “interns.”

The Department of Labor has created a six-part test that employers must satisfy in order to have unpaid workers. This test, which requires the employer to meet all six components, provides that an intern relationship exists when:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment; and

2. The internship experience is for the benefit of the intern; and

3. The intern does not displace regular employees, but works under close supervision of existing staff; and

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded; and

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

While each of these six factors has been interpreted by the DOL and the Courts, the third and fourth factors typically are the ones that an employer has the most difficulty satisfying. In fact, in the Glatt v. Fox Searchlight Pictures, Inc. (S.D.N.Y., No. 11-06784, 6/11/13) decision, these were precisely the criteria upon which the New York District Court focused. In determining that individuals treated as “interns” during production of the movie Black Swan were, in fact, employees who should have been compensated for their work, the court explained that these individuals performed tasks that benefitted the employer and which, but for the “interns,” would have had to be performed by employees.

Unfortunately for employers, these claims are becoming far more prevalent as employees and plaintiff-side attorneys recognize that many employers do not appreciate the intricacies of this area of wage and hour law. In fact, as recently as last week, a class action intern-based law suit was filed against Conde Nast.

There are several steps an employer can take to ensure that their “interns” are, in fact, interns and not employees who must be compensated for time worked. First, the employer must become more familiar an facile with the DOL’s and courts’ interpretations of the regulations involving interns. Second, if an employer wants to institute an internship program, it is recommended that such a program be memorialized in writing. This program description should incorporate by reference the six-pronged test described above. Third, the intern should sign a document making clear that he or she is, in fact, an intern and: (1) has absolutely no expectation of payment for the work performed and (2) has no guarantee or even expectation of employment following the internship. Fourth, the organization should have established a formal complaint procedure that an intern (or, really, any employee) can use to dispute the way he or she is or is not being paid. Finally, a correction procedure also should be created to make clear the intern, employee and DOL that, when mistakes are made, they promptly (read: immediately) will be corrected.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

Florida Statute Preempts Local Wage and Benefit Laws

Florida Governor Rick Scott signed into law H.B. 655 (linked below), which preempts laws enacted by counties, cities and other local governmental units that require employers to pay wages and provide employee benefits more favorable than those required under federal and state laws. The measure thus preempts local laws affecting: minimum wage; health benefits; disability benefits; death benefits; group accidental death and dismemberment benefits; paid or unpaid days off for holidays, sick leave, vacation, and personal necessity; retirement benefits; and profit-sharing benefits.

Some local laws are carved out and thus survive. These include laws requiring in certain cases time off for domestic violence victims (Miami-Dade County has such an ordinance). In addition, the new law does not affect employment laws enacted by federally recognized tribal governments.

Most importantly, in most situations, Miami-Dade County’s and Broward County’s living wage ordinances will survive. The new law preserves local minimum wage laws for employees of political subdivisions, and for employers who contract with political subdivisions for goods and services (along with subcontractors of such employers where the contract requires that subcontractors pay the local minimum wage).

There is one potentially big change for Miami-Dade County’s living wage law. Miami-Dade County’s living wage law, like many such ordinances, applies to County employees and county contractors. The law also applies to employers providing services under aeronautical services permits issued by the Miami-Dade Airport. Thus, aviation service providers must pay a living wage to airport workers. These covered airport workers include wheelchair assistants, baggage handlers, fuelers, in-flight caterers, among others. (Skycaps that receive tips are exempt under Miami-Dade County’s living wage ordinance and typically are not paid the living wage.) With some exceptions, aviation support services are not provided under contracts or subcontracts with the county; the services are provided under contracts with the airlines. These workers’ pay does not come from county funds. But for the requirement that permit holders pay their employees the living wage for services provided pursuant to the permit, the living wage ordinance would be inapplicable. But the carve out in H.B. 655 does not reach services provided under aeronautical service permits. An argument can be made that these aviation services providers will no longer be required to pay their workers the living wage.

This law is good for employers because it provides clarity and uniformity. The local laws were often obscure, making it difficult for employers with facilities in different localities to comply.

The measure takes effect on July 1, 2013.

Careful Drafting of Arbitration Agreement is Key

In recent years, the changing litigation landscape has caused many employers to roll out binding arbitration programs that apply to all employees. The primary impetus for this is the threat of runaway juries. Many employers would rather take their chances with an arbitrator than leave their case up to jurors who often identify more closely with employees than they do with management.

Another advantage of arbitration is the ability to avoid employee class actions and collective actions, which can turn a relatively insignificant single employee case into high stakes, “bet the company” litigation. Employers can require employees (and their attorneys) who otherwise would be able to bring a class action in court, to bring multiple single plaintiff claims in arbitration. The end result is that employees will be less likely to find attorneys who will be willing to take their case.

Courts in recent years have been amenable to the concept that properly worded arbitration agreements can bar class actions and collective action claims in arbitration. Indeed, as a result of Stolt-Nielsen v. Animal Feeds International Corp., a 2009 U.S. Supreme Court case, it appeared that class/collective action arbitrations were prohibited in arbitration unless the arbitration agreement at issue explicitly provided for them.

But, yesterday the Supreme Court in Oxford Health Plans LLC v. Sutter emphasized that careful drafting is the key. If the arbitration agreement is ambiguous regarding whether class action arbitrations are allowed, then the issue is left up to the interpretation of the arbitrator. And, as happened in Oxford, if the arbitrator decides that class action arbitrations are allowed, his decision will likely be final.

The lesson here is that employers must make sure that their arbitration agreements are drafted carefully and correctly, so as to explicitly prohibit the arbitration of class and collective action claims. If an employer’s currently operational arbitration agreement leaves any doubt about this issue, the employer should have a labor and employment attorney revise it.

EEOC Updates Informal Guidance for Employers Under the Disabilties Act

On May 15, 2013, the Equal Employment Opportunity Commission (EEOC) issued updates to four informal “Question and Answer” guidance documents relating to protections against disability discrimination under the Americans with Disabilities Act (ADA). Each of the guidance documents, which are available on the EEOC’s website, focuses on a different condition (cancer, diabetes, epilepsy and intellectual disabilities) and, according to the EEOC, reflect changes made by the ADA Amendments Act relevant to these four specific conditions.

I am pleased to share with you our recent Client Alert on the EEOC’s guidance documents.

The Client Alert summarizes the guidance documents, including the types of reasonable accommodations the EEOC suggests should be considered by employers in working with employees with cancer, diabetes, epilepsy and intellectual disabilities.

This blog should not be construed as legal advice, as establishing an attorney-client relationship or as pertaining to factual situations.

Jason Collins: Who Will Come Out Next?

I am pleased to post my most recent blog for SHRM Blog.  This blog focuses on how to respond if and when an employee comes out to you.

This blog should not be construed as legal advice, as establishing an attorney-client relationship or as pertaining to factual situations.

Employers in the Crossfire

From SHRM’s HR Magazine:

Employers in the Crossfire
Federal and state gun laws have ramifications for employees and employers alike.
6/1/2013

Last year’s massacre at Sandy Hook Elementary School in Connecticut was beyond tragic—and there have been more school shootings since then. In response, lawmakers in Washington have launched a game of political football.

But this isn’t about political wrangling around gun control; it’s about guns in places like schools and worksites. In addition to school shootings, there have been many fatalities caused by people turning their guns on colleagues at work.

According to the U.S. Bureau of Labor Statistics, about 78 percent of the approximately 518 workplace homicides in 2011 were gun-related.

In just the last few months of 2012, there were several tragic examples:

In September, a Minneapolis man who had been discharged opened fire in the company break room, killing five former co-workers before committing suicide.

In November, a man who was about halfway through his shift at a Fresno, Calif., meat processing plant pulled out a handgun and shot four co-workers, killing two before taking his own life.

Eleven days after that incident, a worker at a food producer in Indianapolis shot and killed a co-worker and then himself.

These are not the only examples of workplace homicides carried out with guns in 2012.

Rights vs. Risks

A comprehensive plan to prevent and respond to workplace violence goes beyond a rule on firearms in the workplace, but such a rule remains a critical component.

Of course, most gun owners would never consider using their weapons unlawfully, let alone do so. Those individuals should not be maligned. At the same time, we cannot ignore the inherent risks that firearms pose to employees in the workplace.

Think about what happens when you terminate an employee. He or she may be angry. If his or her temper is hot enough, a cool-down period may be needed to prevent a violent reaction. Access to a firearm in the company parking lot could cut short that cool-down period.

But can employers ban firearms in their workplaces and in motor vehicles in their parking lots? What if an employee has a license to carry the firearm?

Employees 21 and older have the right to drink, but employers still can ban alcohol from the workplace. Are firearms any different?

Some say yes, citing the Second Amendment. However, the scope of the protections it guarantees is not clear. Yet, the Second Amendment clearly applies only to restrictions imposed by the government—not private-sector employers.

States’ Statutory Rights

While private-sector employees have no constitutional right to bring weapons to work, some may have statutory rights. Twenty states have passed laws that protect, to varying degrees, the rights of employees and others to carry firearms on an employer’s premises. Tennessee’s legislation takes effect in July. In most cases, an employee’s right to bring a firearm onto an employer’s premises is limited to keeping the weapon in his or her motor vehicle.

Texas Labor Code Section 52.061 serves as a good example of these laws. It states:

“No employer may prohibit an employee who holds a license to carry a concealed handgun, who other­wise lawfully possesses a firearm, or who lawfully possesses ammunition, from transporting or storing a firearm or ammunition in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.”

There has been litigation about whether laws that allow employees to possess weapons on an employer’s property are inconsistent with, and therefore preempted by, the U.S. Occupational Safety and Health Act. The act’s general duty clause provides that each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

Employers won one case at the district court level, when the court held that the state law was pre-empted by the general duty clause. But this decision was overruled, and employers have yet to win another case.

In 2009, in Ramsey Winch Inc. v. Henry (555 F.3d 1199), the 10th U.S. Circuit Court of Appeals ruled in 2009 that the general duty clause does not pre-empt state law, disallowing the maintenance or enforcement of policies prohibiting the transportation or storage of firearms in vehicles on private property. The circuit encompasses Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

Also, in a 2008 case, Florida Retail Ass’n Inc. v. Att’y Gen. (576 F. Supp. 2d 1281), a Florida district court held that the general duty clause does not pre-empt Florida’s guns-at-work law. The state law allows employees with concealed-weapons permits to keep guns locked in their vehicles while at work.

As of April, legislatures in at least 12 additional states were considering laws that would restrict the right of employers to prohibit employees and others from possessing firearms on their property and in their parking lots.

Pennsylvania legislators were pondering one of the most restrictive measures. House Bill 448 would allow an employee to possess a firearm locked in or “locked to” a private motor vehicle. The plain language would suggest that an employee could have his or her hunting rifle in plain view.

If enacted, to whom would this bill potentially pose the greatest risk? Hint: Which department is involved in most terminations?

Again, most hunters are law-abiding individuals. But if a gun is visible, anyone with a lock cracker can get ahold of and use the gun. As noted at the outset, this article is not about a political issue; it is about a workplace issue. However, political issues turn into legal ones when legislation is enacted, so employers need to be aware of gun laws in states in which they operate.

HR professionals may want to speak up when gun-related issues arise in their state legislature. After all, those in HR are involved in more terminations than other managers.

The Society for Human Resource Management’s position is this:

SHRM opposes any restrictions on the right of employers to determine their own worksite policies regarding weapons on company property (including parking lots). SHRM’s position in no way involves the broader issues of gun control or gun ownership.

Assessing Your Policy

With this background, employers are well-advised to look at their rules on weapons.

Ask these questions:

How do you define weapons? Yes, the definition should include guns, but it should not be so limited. A machete has no place in the workplace, either. While we cannot ignore guns, to focus solely on them creates significant risk of violence.

How do you define workplace? If you intend the definition to cover motor vehicles on your premises, make that clear. In this regard, consider what constitutes your premises. If you lease offices or parking lots, for example, you may control them. The answer may be different if the garage is open to the public. Of course, check state law to make sure you don’t overreach and end up with a claim under the laws in one of the states in which gun rights trump property rights.

If you are going to allow firearms in employees’ vehicles, what steps will you take to minimize risks? Will you require that they be locked in the trunk? That ammunition be kept separately in the vehicle and hidden from view, such as in the glove compartment? These are real issues for workplaces in which large numbers of employees leave work to go hunting, so an absolute ban may not be realistic, even if it is lawful. Focusing on these details may literally have life-or-death consequences.

If you have an exception for security guards, what steps are you taking to ensure that they are hired or engaged only after being screened with appropriate background checks? What guidelines and supervision do you have in place to minimize the risk of guards improperly using the weapons you may allow them to possess? Of course, be careful not to back into a discrimination claim. U.S. Equal Employment Opportunity Commission officials are looking closely at employers’ use of background checks.

This article is not about the right to bear arms. I leave it to the courts to determine that right.

This article is about the right of employees to have safe workplaces. Protecting that right is the responsibility of employers.

Jonathan A. Segal is a contributing editor of HR Magazine and a partner with Duane Morris LLP in Philadelphia.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

Wellness Programs: Gaps In Guidance

Last week, the federal DOL issued HIPAA regulations on wellness programs setting forth both restrictions and requirements.  The regulations were issued pursuant to the Affordable Care Act, aka as Obamacare.

But the Affordable Care Act is not the only law that employers must consider.  There are many other federal and state laws that may affect wellness programs, too.

For example only, the ADA will apply to many wellness programs.  The question is how.

The EEOC has stated that employers may conduct medical examinations and activities as part of a wellness program so long as the program is “voluntary.” The program is voluntary “so long as the employer neither requires participation nor penalizes employees who do not participate.”

However, the  EEOC has not provided guidance on what kind of financial incentives are permissible in order for the participation to be considered voluntary under the ADA.  For example only, the EEOC has not yet provided any guidance on whether there is any legal distinction between a financial incentive (premium discount) and a financial penalty (higher premium), even though both are functionally the same.  Nor has the EEOC provided any guidance on how steep the discount or higher premium may be and the program still be deemed voluntary.

Even if the wellness program is not voluntary, under the ADA, there is a bona fide benefit safe harbor.  At least one appellate court has held that the safe harbor applied to the wellness program at issue. Seff v Broward County.

The EEOC has issued no guidance on its position as to the potential application of the safe harbor to wellness programs that may be deemed involuntary.

In a public meeting last month on wellness programs, the EEOC failed to provide any guidance on the ADA issues addressed above.

In this regard, it should be noted that the ADA is not the only federal anti-discrimination law that applies to wellness programs.  For example only, GINA does, too.  The EEOC has provided some guidance in this area.

To make matters even more complicated, there are state laws that must be considered, too.  For example, not every state non-discrimination law has a safe harbor provision that is the same as or similar to the ADA

So proceed cautiously in this area.  The DOL regulations are a good starting point but should not be seen as a stopping point. There are additional steps that employers can take to minimize (not eliminate) their legal risks in this area. We are happy to assist.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

Boys’ Club Next Door

I am pleased to post an article I wrote for Fortune on gender discrimination in general and Boys’ Clubs in particular. You can read it here.

I-94s Go Electronic: What it means for Travelers and Employers

On May 1, 2013 US Customs and Border Protection (CBP) began the roll-out of its new electronic I-94 system. By the end of May, paper I-94s will be eliminated for all foreign national travelers except those entering at land border ports. This means that any foreign national traveler entering the United States at an air or sea port, will receive only a notation in their passport with their entry date, type of status and the expiration date of their stay. Information will be recorded and retrieved by CBP by scanning the traveler’s passport. Upon exiting the United States, travelers do not need to do anything differently.  Those with a paper I-94s will continue to surrender them  to the commercial carrier or CBP upon departure and those who entered with the new process will have their departure recorded via electronic manifest.

Accessing I-94 Records: To verify the information contained in an electronic Form I-94, travelers should go here to review their record. Travelers are also advised to  print out a paper copy of the electronic I-94 information for their records. This record will only be available until the traveler’s next entry into the United States, so it is imperative for foreign nationals who intend on seeking visa extensions or legal permanent residence to maintain accurate and complete electronic I-94 records. Any errors discovered should be immediately reported to nearest CBP  office so that they may be quickly corrected.

Maintaining Accuracy: In the new process, CBP will be relying heavily on the manifest arrival and departure records provided by the airlines to record entry and departure information for foreign national travelers. As a result it is imperative to ensure that  personal information such as name and date of birth is correct and consistent throughout the traveler’s documents and travel record.

 I-9 Completion: The new electronic I-94 will make employment eligibility verification and I-9 form completion more complicated.  The new I-9 form with an issue date of March 8, 2013 should be used for all new-hires and re-verifications. On this form, employees with temporary work authorization are now required to include their passport number and the country of issuance on the form. Employers, when completing Section 2, List A should record passport information and visa information.  The expiration date of the employee’s immigration status should be included in the employer’s tickler system so that reverifciation may be completed on time. Be careful not to confuse the expiration date of the passport or visa with the expiration date of the person’s legal immigration status, as these will rarely be the same.

Phased Implementation: Implementation of  electronic I-94s began on April 30, 2013 and will continue through the end of May 2013.  See the Automated I-94 Rollout web page for implementation information and schedules.  During the first week, the system was implemented at Charlotte (NC) International Airport, Chicago O’Hare International Airport, Houston Bush Intercontinental Airport, Las Vegas International Airport, Miami International Airport and Orlando International Airport.  During the second week, CBP expanded into major air and sea ports by region, including the air sea ports in the New York/Newark, NJ area, Boston and ten other cities. Ports in Los Angeles and San Francisco, among other regions, are being implemented the week of May 14, along with pre-flight clearance stations abroad.  The move to an electronic system is estimated to save the government $15.5 million

For more information on this or any immigration topic, please contact Valentine Brown vbrown@duanemorris.com (215) 979-1840.

Holocaust Days of Remembrance

The United States Congress created the Days of  Remembrance as our nation’s annual commemoration of the Holocaust.  This year, the Days of Remembrance begin on Monday April 8, 2013.

During the week, may each of us remember, even if  for only a moment, the millions who were murdered (including, but not limited to, 6 million Jews) by the Nazi Regime and their willing collaborators.  As a result of the Holocaust,  approximately 2 out of 3 European Jews were murdered.

May we also remember the countless “Righteous Gentiles” who risked their own lives to save those who were targeted for genocide simply because of who they were. 

On a personal note, my family tree is overwhelmed with tombstones for Holocaust victims.  At the same time, we have some survivors.  For example, one aunt survived only because she was hidden by the the courageous inhabitants of a Catholic Church in Poland.

Each year, I try to read at the Holocaust Museum in DC a few of the names of the many millions murdered.  I will do so this afternoon as my way to remember and to respect those who were taken from us.  

Never should these people be forgotten. Never again should this happen to any people. 

Friends Don’t Let Friends Use HR-Ese

I am pleased to post a blog I wrote for SHRM’s We Know Next on using plain speak in the workplace. It can be found here.

Thank you,

Jonathan

Boys Clubs Go Viral: TweetChat with SHRM’s We Know Next

Please join me, @Jonathan_HR_Law for a #NEXTCHAT with SHRM’s @weknownext on “Boys Clubs” in the workplace! March 27 3:00 p.m. – 4:00 p.m.

Hope to “see” you there!

Twitter Coverage of EEOC Commissioners’ “Chat” At the SHRM Employment Law and Legislative Conference

I am pleased to post another blog I wrote this month for SHRM’s WeKnowNext.  The blog includes tweets I wrote, during and after, the chat between Commissionrs Feldblum and Lupnic at the SHRM Employment Law and Legislative Confenence in D.C.  They took the “dis” out of DC “disfunction.

http://www.weknownext.com/blog/eeoc-comissioners-chat-at-the-shrm-legislative-conference

Boys Just Want To Have Fun

It is with gratitude to SHRM’s HRMagazine for publishing my most recent article on Boys Clubs:

Boys Just Want To Have Fun

Vol. 58 No. 3

Shut down boys’ clubs.

3/1/2013 By Jonathan Segal

The term “boys’ club” refers to the unofficial and often impenetrable group of men—usually white men—in an organization or department who have effective control and power. Being part of or having access to the club often is critical to making the right connections to advance within the organization.

Because these groups often form covertly, and sometimes as a result of unconscious rather than conscious bias, the membership does not always correspond to the organizational chart. Moreover, top executives often deny the existence of an exclusionary club. I have never seen a “formal” boys’ club, yet I would be foolish to deny that it exists at some organizations.

When it comes to determining the scope of a boys’ club, official positions may be relevant but not determinative. I have seen organizations with gender equity at the top, but the real power is held by men. Conversely, I have also seen organizational charts where most power positions are held by those with Y chromosomes, but I didn’t think there was any gender bias in general or a boys’ club in particular.

Why are these clubs present in some companies? And how do we eradicate them?

I do not pretend to have all the answers, but I do have some thoughts to help HR professionals move toward equal employment opportunity (EEO).

Bias in Your Backyard

Sex discrimination, including gender stereotyping, is illegal. More than that, it is bad business.

Ensuring gender equality is a business imperative in terms of attracting, retaining and advancing talent that goes beyond the legal imperative. We exclude women or any other group at our peril.

You may be thinking, “Of course. This is hardly news.”

Most executives outside of HR would agree. They understand the business drivers mandating diversity and inclusion.

Still, most do not see the bias in their backyards. Don’t assume that everyone understands the business costs of bias.

Why Boys’ Clubs Exist

There are many reasons an organization or a silo within may have a boys’ club.

The first is what the U.S. Equal Employment Opportunity Commission calls “like-me” bias: the human tendency to be more comfortable with those who are like you.

“I don’t discriminate,” says the executive. But he socializes with, plays golf with and feels more comfortable among those who look like him.

Does this risk exist in an organization where women are in control? You bet. Executives in these organizations face the same risk of like-me bias to the detriment of those with Y chromosomes.

Boys’ clubs do not justify girls’ clubs, legally or morally. Power clubs that exclude men are also bad business.

Like-me bias is usually the product of unconscious affinity toward similarity. Sometimes, however, conscious considerations contribute to a boys’ club.

These considerations may be well-intentioned. We live in a painfully litigious world. One misstatement may later be used as evidence of bias, even if the statement was made out of awkwardness as opposed to malice.

In the “gotcha” world of employment litigation, leaders appropriately want to avoid saying the wrong thing. They sometimes inappropriately avoid people they fear may perceive their words in a negative light. But you can’t avoid bias claims by avoiding those who are different from you. That’s called bias.

There is more room for human error in a diverse group. While that may explain, in part, why some clubs exist, it does not justify their existence.

In addition, members of boys’ clubs often justify their activities as being primarily social. Work is hard and seems to be getting harder. In the 1970s, Spiral Starecase sang, “I love you more today than yesterday but not as much as tomorrow.” The theme song for today’s business world could be “I expect more from you today than yesterday but not as much as tomorrow.” So, when people work hard, they may want to play hard, too.

In mixed-gender groups, the sexist “joke” is more likely to be costly, and the appropriateness of going to strip clubs is more likely to be challenged.

So we move from the ’70s to the ’80s, when Cyndi Lauper sang “Girls Just Want to Have Fun.” Today, the boys who just want to have fun fear that the price tag may be too high if women are included in certain activities, so some don’t include them.

Dismantle Boys’ Clubs

Just so there is no confusion: Even in male groups, the sexist jokes are not funny and the strip clubs are offensive. There are many men—I am one of them—who say so, but fewer men than women will bring claims based on them.

There is no magic bullet to dismantling these clubs, but here are 10 recommendations for your consideration:

  • Educate executives about the potential for the existence of a boys’ club and the business costs of such a group. You cannot stress enough the costs of excluding women from the inner circle. It is not only about the talent women bring but about the fact that men who operate in diverse groups tend to be better employees.
  • Make sure your job descriptions for leadership positions do not inadvertently exclude women. Don’t include a minimum number of years of experience that is not necessary for the position and that women historically have been denied the opportunity to achieve. For example, for an operations position, if the number of years of experience required is unnecessarily high, it may perpetuate bias engaged in by prior employers. Do you really need someone with 15 years of experience? Is 10 enough? At least ask the question.
  • Open the promotion process so that when senior positions become available, credentials, not connections, matter. Leadership roles too often are willed to the next in line, and that person often looks like his predecessor in terms of demographics. So, as a general rule, post the opening.
  • Give a “plus” to differences in experiences, perspectives and leadership styles as part of decision-making. When we focus on these aspects of diversity, we increase EEO diversity. However, do not give gender a plus. Under Title VII of the Civil Rights Act of 1964, employers probably cannot consider gender a plus unless there is a remedial purpose. For private-sector employers, that means either an admission of prior discrimination or proof of a “manifest imbalance” in traditionally segregated positions. For public-sector employers, only an admission of previous discrimination will do.
  • Consider affinity groups that focus on gender issues so that women can learn from one another and develop career strategies. But be careful: As a practical matter, an affinity group should be a launching pad, not a landing pad. As a legal matter, if you support an affinity group for women, do you have to do the same for men? Here comes the annoying lawyerism: “It depends.” If the affinity group is supported by the employer so that it would be considered a term or condition of employment, employers cannot discriminate based on gender. The same would be true of race. Develop EEO-neutral criteria for affinity groups, and allow any groups to argue that they meet them. For example, any group that wants employer support should have to present the business case for the need and a plan for how the group will expand the business. In female-dominated professions, a male affinity group may meet the criteria.
  • Develop a formal mentoring program. In the absence of a formal program, like-me mentoring often benefits people who are like those at the top. Be careful that any formal mentoring program does not do the same. Many formal programs gender-match. If people at the top are predominantly male, doesn’t that mean that men will benefit more? Moreover, isn’t it misguided to suggest that men cannot mentor women or vice versa? And doesn’t gender-matching, when it comes to mentoring, deprive men of power the opportunity to learn of barriers that they did not know existed? When there is cross-gender mentoring, mentors often learn as much as they impart.
  • Pay attention to micro-inequities that collectively may result in macro-exclusions. Leaders need to think about with whom they have lunch, go for drinks, attend sporting events and connect through social networking. We all know it is in the context of these informal interactions that relationships are strengthened and information is shared. These informal interactions may be the visible and discoverable manifestations of a boys’ club.
  • Diversify organizational social events so that many interests are covered. Mix things up. Of course, not all women like to shop for shoes, and some men do. But I suspect more women do than men. (I once was on a panel on gender bias in the legal profession, and the only issue on which there was a good-natured gender divide was shoes. I still think two pairs is enough: one formal and one informal.) In any event, can you imagine if your only company-sponsored social events involved shoe shopping? Are male-dominated sporting events different? By offering diverse activities, you will maximize inclusion and have some fun, too. How do you know what might be of interest? Ask.
  • Focus on alcohol. Why? Many boys’ clubs have as charter members Jack Daniels, Jim Beam and Old Grand-Dad. Drinking buddies and membership in boys’ clubs often overlap. That does not mean women don’t drink socially or even excessively. But often the boys’ clubhouse is a neighborhood bar.
  • Don’t deceive yourself into believing that only cave dwellers engage in sexual harassment. While we have made progress as a society, sexual harassment is alive and well. Sexist jokes, verbal innuendo, visits to strip clubs—sometimes these missteps result in a claim. Just as bad, they effectively push women away.

Some women will stay with your organization but opt out of the social events where inappropriate behaviors occur. Marginalized, these employees don’t realize their full potential. Worse, they may take their talent and outside relationships to a more inclusive employer. Inappropriate conduct may not be severe or pervasive enough to create a hostile work environment, but it may create a boys’ club when women choose not to go along to get along, a choice no one should ever have to make.

 

Common Pitfalls: The Devil Is In The Details; Regulatory Compliance

Here are 10 common or potential regulatory hurdles that may confound employers:

1. Under the Fair Labor Standards Act (FLSA), a meal period of less than 30 consecutive and uninterrupted minutes is work time unless “special conditions” exist. Be prepared to litigate hard to establish those special conditions. Bon appetit.

2. What constitutes “exercise of discretion and independent judgment” for the administrative exemption? The FLSA definition is as clearas mud.

3. The FLSA does not permit docking pay for exempt employees who are ready, willing and able to work when the employer shuts down, for example, for holidays or weather emergencies. Don’t jeopardize exemptstatus by treating these employees like nonexempts.

4. Expect more age discrimination claims as some Baby Boomers postpone retirement and others re-enter the workforce.

5. Under the Americans with Disabilities Act, the U.S. Equal Employment Opportunity Commission all but suggests that employers should assume that an employee has a disability, ensure nondiscrimination andmake accommodations where reasonable. Expect the EEOC–and probably many courts–to spend less time on threshold coverage questions.

6. When it comes to making hiring decisions based on criminal records, the EEOC prefers that employers make individual assessments. Theagency’s aggressive position will be tested in the courts.

7. Family and Medical Leave Act regulations allow employees to take extraordinarily short periods of leave. Unscheduled intermittent leave continues to flummox employers, but call-in policies can help.

8. Employers cross the border into problematic territory for not purging 1-9 forms when permitted, if such forms are not in compliance.

9. The Uniformed Services Employment and Reemployment Rights Act requires employers to work to re-employ service members. They have to track factors from compensation to promotions employees would have received had they not been on military leave.

10. Proposed rules for the Labor-Management Reporting and Disclosure Act would make those who advise employers “indirect persuaders.” That means an employer might have to report that a lawyer gives adviceon how to stay union-free. This arguably is a government intrusion into attorney-client privilege.

The author, a contributing editor of HR Magazine, is a partner with Duane Morris, a Philadelphia. based law firm.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an atttorney-client relationship.

PA SHRM State Council Legislative and Legal Conference (April 19)

Register today for PA State Council of SHRM’s Legislative & Legal Conference.

The Pennsylvania State Council of SHRM, Inc. will hold its 13th Annual Legislative & Legal Conference on Friday, April 19, 2013 at the Harrisburg Hilton. Join us for an educational day of state and federal employment law updates as well as great networking opportunities. With a focus on the IMPACT OF THE 2012 ELECTION, we are pleased to offer a total of five programs for this year’s full-day conference. The presenters for the three morning sessions will be Lynn Outwater Esq., SPHR of Jackson Lewis, LLP, Michael Layman and Nancy Hammer, Esq. of SHRM. Presenting for our afternoon sessions will be Glenn Spencer of U.S. Chamber of Commerce, Alex Halper of Pennsylvania Chamber of Commerce and Jonathan A. Segal, Esq. of Duane Morris LLP. Topics will include:
 Employment Law Update
 Public Policy Update
 HR Regulatory and Judicial Outlook for the Obama Administration
 Labor Initiative in Pennsylvania
 State Law Trends in General and Pending Legislation in Pennsylvania In Particular
CLE and HR Certification Institute credits pending approval.
REGISTER BY MARCH 23 TO RECEIVE A DISCOUNT! For registration, please go to: http://msg.shrm.org/site/R?i=PDO8Aa4-kc_lAv1ncTRBvA. Please direct your questions to Deborah Margulies at dlmargulies@duanemorris.com.

Join us for the pre-conference Reception on Thursday, April 18, 2013 from 6:00 p.m. – 8:00 p.m.

We hope to see you there!

This is an advertisement on behalf of the Pennsylvania State Council of SHRM, Inc.
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Criminal Background Checks in 2013: FCRA, Meet Title VII

As we all know, if an employer uses a third party to conduct criminal background checks for it, the Fair Credit Reporting Act (FCRA) applies. Generally speaking, there are three (3) steps mandated by the FCRA in terms of the communications between the employer and the applicant or employee:  (a) prior written authorization; (b) pre-adverse action notice; and (c) adverse action notice. Effective January 1, 2013, there are new  forms that must be used as part of the process.  In particular, an updated “A Summary of Your Rights Under the Fair Credit Reporting Act,” must be given to applicants and employees as part of pre-adverse action notice (with regard to criminal or other records).

In the case of investigative consumer reports, which include personal interviews as opposed to relying solely on documents of record, the revised notice must be given as part of the first step, too.

For a copy of the new form, paste and see Appendix K: http://bit.ly/Rv6XqS

In this regard, it is important to note that the FCRA no longer is enforced by the Federal Trade Commission (FTC).  Rather, it is enforced by the Consumer Financial Protection Bureau (CFPB).  The CFPB assumed enforcement and rule making authority from the FTC under the Dodd-Frank Wall Street Reform and Consumer Protection Act. As employers update their forms to comply with the FCRA, now is also a good time to update their forms to take into account the EEOC’s guidance on criminal records. See http://www.eeoc.gov/laws/guidance/arrest_conviction

Generally, the EEOC requires that employers make individualized assessments, using the Green factors:  (a) nature of job; (b) nature of conviction(s); and (c) time frame since conviction. Green refers to the seminal appellate court decision in this area. As part of recommended individualized assessment, the EEOC encourages employers to do more than consider the Green factors.

The EEOC has stated that the  individualized assessment also requires “that an employer informs the individual that he [or she] may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him [or her]; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.” The FCRA requires only that employers notify applicants and employees of the conviction record which would be disqualifying and provide them with an opportunity to correct any mistakes.

The individualized assessment inquiry is a due process right that gives the applicant or employee an opportunity to provide potentially “mitigating” factors for the employer to consider, even assuming the conviction record is correct. This very small change can make employer decision-making more defensible before the EEOC. It also is consistent with general notions of fundamental fairness.

It should be noted that the EEOC recognizes that there can be “targeted exclusions” such that an individualized assessment is not necessary.  That is where there is tight nexus between the 3 Green factors.  More detail on targeted exclusions can be found in guidance referenced above.

Don’t forget state and local laws, too.  For example, Newark has become the most recent jurisdiction to “ban the box.”

For now, however, let’s keep it easy.  Update your forms to comply with the FCRA and consider including an inquiry as part of your pre-adverse action notice consistent with the EEOC’s preference for individualized assessments.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATION OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

Santa and The FLSA by my colleague: NATALIE HRUBOS

Santa and the FLSA – Natalie F. Hrubos – 12-16-12

Delivering presents to the well-behaved children all over the world in a single night is hard work.  Sure, Santa Claus makes it look easy with his jolly disposition, magical sleigh and team of nine flying reindeer.  But does that mean he is any less entitled to compensation? Of course not!  Let’s just assume that Santa’s employer – the North Pole, obviously – is covered by the Fair Labor Standards Act (FLSA).  To comply with the law, the North Pole, like any other employer, has to ask itself certain questions.

First, is Santa’s position exempt or non-exempt?  There’s no doubt that Santa works more than 40 hours per week during the holiday season.  Think of all the letters pouring in from kids across the globe.  Think of how much time it takes to figure out who’s been naughty and who’s been nice.  The guy sees you when you’re sleeping.  If Santa’s non-exempt, the North Pole owes him some serious overtime.

Santa may qualify for one of the FLSA’s white collar exemptions.  For instance, Santa likely meets the duties test of the executive exemption if his primary duty is managing the North Pole enterprise, he customarily and regularly directs the work of at least two or more full-time elves, and he has the authority to make employment decisions, such as when to promote someone to lead reindeer.  But if it’s really Mrs. Claus and the head elf who perform these duties, then Santa likely does not qualify for the executive exemption.

Santa may however qualify for the administrative exemption.  He probably meets the duties test for this exemption if his primary duty is the performance of office or non-manual work that is directly related to the management of the North Pole or its general business operations and if his work involves the exercise of discretion and independent judgment with respect to matters of significance.

Who goes on what list (naughty or nice) is certainly a matter of significance for the North Pole.  But how clean must a child’s bedroom be to earn her a spot on the nice list? How often must she share her toys with her siblings?  And what if she tells the truth most, but not all of the time?  Santa necessarily uses his discretion and independent judgment when making these determinations.

That said, to qualify for the exemption, Santa’s primary duty must be the performance of office or non-manual work. Traveling from house to house, sliding down chimneys and placing presents under Christmas trees would surely be considered non-exempt, manual work.  But Santa does that only one night per year.  Responding to letters from children could qualify as office work, but is that Santa’s primary duty and is it directly related to the running or servicing of the North Pole’s business?  If either answer is no, Santa may not qualify for the administrative exemption.

The reality is that even though the North Pole may pay Santa on a salary rather than an hourly basis, that doesn’t mean Santa qualifies as exempt from the FLSA.  If he doesn’t meet the duties test for one of the FLSA exemptions, Santa is non-exempt and must be paid overtime compensation for every hour he works over 40 hours per week.

If Santa’s position is non-exempt, then his Christmas Eve responsibilities present a number of additional compensation issues, such as whether the North Pole has to provide and/or pay Santa for his milk and cookie breaks, whether Santa is “on the clock” when he’s using his iPhone to check in with the head elf, and whether his travel time to and from the North Pole and from house to house is compensable.

In some cases, the law of the North Pole may be more restrictive than the FLSA and Santa’s employer will be required to comply with whichever law is more beneficial to employees.  The same is true with state law.  For example, if a certain state requires employers to provide meal breaks, an employer is required to comply with the state law even though federal law does not impose such a requirement.

It doesn’t take three wise men to figure out that an underpaid Santa Claus could put a real damper on the holiday season.  But even if you’re not the North Pole, you don’t want to be on the wage and hour naughty list.  Much like Santa, costly wage and hour lawsuits keep coming to town, so check with counsel on how best to review and if necessary correct your pay practices. Happy holidays!

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS CREATING AN ATTORNEY-CLIENT PRIVILEGE.

Time is Money: On or Off the Clock Work?

As published by SHRM’s HR Magazine:

Time is Money: On or Off the Clock Work?

Vol. 57 No. 12

Many managers still don’t understand the Fair Labor Standards Act.

12/1/2012 By Jonathan Segal

Virtually every week I hear about another employer allegedly requiring, encouraging or tolerating situations in which nonexempt employees are working off the clock. Even large employers with robust compliance programs are not immune to such legal missteps.

Of course, it is not just larger employers being sued. Employers with relatively few workers—that literally cannot afford the cost of defense—are being sued, too.

The goal for employers is not to win “off-the-clock” cases but to avoid them.

Consider these suggestions for minimizing your exposure to such claims and maximizing your chances of winning if such a claim is brought.

Basic Principles

Some strategies for avoiding off-the-clock cases should take employers back to the basics, including training and retraining, enforcing policies that prohibit off-the-clock work, and encouraging managers to report suspected off-the-clock work to HR.

Train and retrain.

Provide supervisors with training that makes clear they cannot require, encourage or even suggest that nonexempt employees work off the clock.

The most important message to convey is that supervisors cannot direct someone to work off the clock, explicitly or implicitly. Also, include guidance on how to address restrictions on overtime.

The untutored have said, “We cannot pay for any overtime.” Some employees have heard “work it but don’t record it.”

Where overtime is not permitted, make clear that “No one is permitted to work any overtime” as opposed to saying, “We cannot afford any overtime.”

Let supervisors know that if they break the foregoing rule, they will be subject to discipline up to and including discharge.

Carry a big stick.

Let supervisors know that if they require, encourage or even suggest that an employee work off the clock, they will be subject to discipline up to and including discharge. This prohibition will help prove that deviations were those of a rogue supervisor and not part of an established corporate culture.

Make clear that among the most serious violations would be altering an employee’s time to reduce the amount owed to him or her to stay within budget. Almost always, such “wage theft” should result in immediate discharge.

Don’t go it alone.

Train supervisors to report incidences to HR if they know, or have reason to know, that an employee may have worked off the clock, even if the employee has not said anything.

In harassment cases, it is not enough to avoid objectionable conduct. If employers have actual or constructive knowledge of it and ignore it, they are condoning it. Doing nothing is not a defense; it is an admission.

The same principle has been adopted in the wage and hour context. Even if employers don’t require, encourage or suggest that an employee work off the clock, employers cannot allow it if they have reason to believe it may have occurred.

Supervisors need training on the obligation to report to HR potential off-the-clock work so that HR professionals can talk with the employee and determine whether and what is owed to him or her. If there is a pattern of working extra hours without permission, this may be cause for discipline of the employee, but the employee almost always should be paid.

Clear Policies

Don’t leave employees guessing about the organization’s policy on off-the-clock work. Spell out the employer’s policy on payment for time worked, but make it clear that off-the-clock work is not permitted and that there may be disciplinary action for it. That said, set up a process encouraging employees to report off-the-clock work to HR without fear of retaliation.

Pay up.

Develop a procedure HR professionals can use when they speak with employees who report off-the-clock work.

Use the procedure to determine if they are telling the truth, and then make sure they are properly paid.

If a supervisor reports that an employee has or may have worked off the clock, an HR professional should contact the employee. HR needs to determine whether the employee performed any off-the-clock work and how much time is involved. An appropriate adjustment must be made.

Sometimes, HR professionals make the mistake of assuming that no money is owed as long as the employee does not go over 40 hours in a workweek or eight hours in a day in California. Payment may be owed for off-the-clock work, even if the employee does not become eligible for overtime.

For example, assume that an employee is paid a salary for working 35 hours for a workweek. If the employee works additional hours but is short of 40, the employee generally must be paid for the “gap time.”

Be specific.

Develop a policy that prohibits off-the-clock work. Leave no doubt that employees must record all time worked.

Make clear that you will not tolerate any off-the-clock work.

Make clear that you will not tolerate any off-the-clock work and that all work must be on the clock.

A general rule is not enough. Spell it out. For example:

An employee may not do any work before clocking in, and, if he or she does, management must be contacted to override the start time so that he or she will be paid for all time worked.

An employee may not do any work after clocking out, and, if he or she does, management must be contacted to override the stop time so that he or she will be paid for all time worked.

Have an open-door policy.

Develop a complaint procedure with appropriate assurances of nonretaliation so that employees can report concerns without fear of retribution.

There must be a strong policy and a robust complaint procedure. Contacting their supervisors should not be employees’ only option. After all, supervisors often are the perceived perpetrators.

At a minimum, employees should be given the option of speaking with HR as an alternative. Employers may want to go one step further and provide another option outside of HR, just in case the problem employee works for HR.

Of course, the policy should prohibit retaliation, which should be defined broadly. If employees don’t feel comfortable raising their concern in-house, they could consult with a plaintiffs’ lawyer and you could end up in court.

Automated Backup

Technology can be HR’s friend or foe in preventing off-the-clock work. On the one hand, time-keeping systems may be adjusted to provide HR with notifications about interrupted meal breaks or other off-the-clock work.

While technology may facilitate telework, however, telecommuting poses unique compliance risks to employers, particularly regarding their nonexempt employees.

Tweak time-keeping system.

Determine whether questions should be included in your time-keeping system that ask employees if they have done work off the clock, so that you can follow up with the employees, capture any time worked but not recorded, and then pay them for it.

Most employees are honest, but some are not. How do you protect yourself against those who may claim later that they worked hours off the clock but then bring bad-faith claims?

Most modern time-keeping vehicles include the potential for questions at the beginning or end of each shift. The answers may be helpful in ensuring that employees are paid in real time, as they should be, and in defending against false claims.

For example, at the beginning of every shift, employees can be asked before they clock in if they have done any work since they clocked out on their last shift. If they answer yes, HR should receive notification and speak with the employees.

Similarly, at the end of the day, ask a question about the employee’s meal break, such as “Did you enjoy an uninterrupted meal break of 30 consecutive minutes?” If the answer is no, either HR would be contacted to determine if payment is owed or the unpaid meal break would be automatically converted to paid time.

If an employee who responds affirmatively to the meal break query later claims that he or she was interrupted almost every day but not paid, any subsequent allegations are inconsistent with his or her prior answers, sometimes referred to as attestations. This should weigh heavily against an employee’s credibility.

Limit telework.

Establish clear rules about whether and when employees may work remotely, such as checking e-mail, and how to ensure that time is properly documented and paid.

Sometimes it is your hardest-working employees who can cause trouble in this area because they log in at all hours and perform work. While their intentions are likely noble, you could pay a handsome price for such dedication.

Set boundaries for remote work, even for stellar employees. For example, you could block remote access to your network by nonexempt employees. Or, you could allow access only if approved and provide guidance on how to record the time to ensure proper payment.

A similar issue arises with personal digital assistants. The safest policy legally is to deny your nonexempt employees smartphones, BlackBerry devices and the like. But is that smart from a business perspective?

There may be times when nonexempt employees need these devices, so set limits as to when they can use the devices and pay them appropriately.

For example, you might set a specific block of time outside of working hours when a marketing employee away on business can use his or her BlackBerry. If you allow such periodic use, under the continuous day rule your duty to pay could be continuous, too.

Even if you have not developed specific policies yet, if you have reason to know an employee may have done work remotely, you must speak with the employee and pay him or her accordingly.

To illustrate this point: A client forwarded me an e-mail from her assistant regarding information that we needed to respond to a U.S. Equal Employment Opportunity Commission charge. The message was “Good news. See below.”

My response: “Not really. See when your nonexempt assistant sent it to you!”

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS CREATING AN ATTORNEY-CLIENT PRIVILEGE.

Harassment Quiz Webinar

Be sure to make your December CLE and Harassment Training deadline.

DMi PRESENTS A WEBINAR: Harassment QuizSM

Wednesday, December 12, 2012

Pacific: 11:00 a.m. to 1:00 p.m.

Central: 1:00 p.m. to 3:00 p.m.

Mountain: 12:00 p.m. to 2:00 p.m.

Eastern: 2:00 p.m. to 4:00 p.m.

When registering online, you will be prompted to sign in as a new or existing student.

 

ABOUT THE WEBINAR
While this highly interactive webinar complies with California law, the webinar discusses federal and other
state laws so that it would be of value to supervisors and managers in every state. The webinar emphasizes
the “gray areas” where good people with no bad intent sometimes engage in problematic conduct
nonetheless. It explores not only sexual but also racial, ethnic and other forms of unlawful harassment. The
webinar also provides guidance on the affirmative responsibilities of supervisors that go beyond simply
refraining from inappropriate conduct, for example, when and how to report complaints and how to ensure
that avoiding retaliation does not result in avoidance that may be seen as retaliation.

By way of reminder, California law requires employers with 50 or more employees to provide two hours of
sexual harassment training to all new supervisors within six months of their assumption of a supervisory
position as well as retraining every two years. Participation in this webinar will fulfill these training
requirements without the expense of on-site classroom training.

The webinar is modeled after a training program created by Jonathan Segal that was the focus of a
television program, “The Sexual Harassment Quiz,” produced by WHYY (Philadelphia) and broadcast on
more than 200 local PBS stations. Jonathan has delivered the Harassment QuizSM
at national, state and local human resources, legal and business conferences, as well as to hundreds of employers throughout the
country. Jonathan has provided training on harassment and discrimination issues to federal and state judges
across the country.

Approved for CA, NY, NJ and PA CLE credit and HRCI credit.

PRESENTED BY
Jonathan A. Segal

Pricing: $80 | $64 for Nonprofit

For more information on financial assistance, please contact Deborah Margulies at dlmargulies@duanemorris.com or 215.979.1957.

Safe Sex: A Workplace Oxymoron?

Take a break from the campaign rhetoric and read my newest blog for SHRM’s WeKnowNext.  The topic is workplace romance: http://www.weknownext.com/blog/safe-sex-a-workplace-oxymoron?

This blog should not be construed as legal advice, as pertaining to specific factual situations or establishing an attorney-client relationship.

Employees with Extended Shifts and Sandy: Wage and Hour Issues

Some employees may be required to stay on site for extended periods of time as a result of Sandy.  Here is summary of the FLSA payment rules for non-exempt employees from the DOL website:

Sleeping Time and Certain Other Activities: An employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep. No reduction is permitted unless at least 5 hours of sleep is taken.

Keep in mind state law may be more restrictive and employers must comply with whichever law is more beneficial to the employees. Indeed, many state regulations provide that employes must be paid for all time they are required to remain on the employer’s premises.

Stay safe!

This blog should not be construed as legal advice, as applying to specific factual situations or as creating an attorney-client relationship

Avoiding Wage and Hour Hurricanes After Sandy

At the risk of being jaded, it seems that, after every natural disaster, plaintiffs’ lawyers follow.  So, now is good time to brush up on wage and hour rules relatives to closings that may result from Hurricane Sandy:

 1. As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed.  However, you generally can require that an exempt employee use PTO during a day in which you close. [Note: general rule most probably would not apply to sick days; same is true for #2 below]. 

2.  If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day.  If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time.  You also must pay him or her if he or she works from home.  

3. No legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for non-exempt employees who are paid under the fluctuating work week.

4. Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed. 

5. Also, if non-exempt employee works at home, you must pay for all time worked.  Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid.  Remember, break rules apply to working at home too.

6. Keep in mind state law may impose additional requirements or restrictions. For example only, in New Jersey, there are call-in requirements; that is, if an employee comes to work and is sent home, there is a minimum number of hours’ pay the employee must receive.

7. Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.

8. Be safe: http://www.cdc.gov/Features/HurricanePreparedness/?s_cid=tw_DrCP38

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATINSHIP

Social Media Webinar: October 29

DMi PRESENTS A WEBINARSocial Media: From Hiring to Firing

Monday, October 29, 2012

Pacific: 10:00 a.m. to 11:00 a.m.

Central: 12:00 p.m. to 1:00 p.m.

Mountain: 11:00 a.m. to 12:00 p.m.

Eastern: 1:00 p.m. to 2:00 p.m.

When registering online, you will be prompted to sign in as a new or existing student.

ABOUT THE WEBINAR
You probably are aware of the recent imbroglio over the practice of some employers asking applicants for their passwords to access their private social media pages. Legal risk and bad employee relations. But that doesn’t mean that an employer may not legally benefit from reviewing the public profile of an applicant’s social media page at the appropriate time and under the appropriate circumstances. Similarly, an employer ordinarily cannot discipline an employee for fulminating about the terms and conditions of their employment, unless they wish to tango with the NLRB. Conversely, an employer must take corrective action if an employee posts legally-protected information, for example, PHI under HIPAA. With regard to marketing, employers need to communicate that, when employees are promoting their products or services, they make clear their affiliation with their employer, even if the social media is “personal.” Conversely, however, employers also should make clear that, when employees are engaging in truly personal social media (for example, posting a political blog), they make explicit that they are not speaking for their employer (but without mentioning their employer by name). Supervisors should think twice before friending subordinates; they may learn more about them than if they looked in their medicine cabinets (not that we recommend that either). However, that does not mean that supervisors should not connect with subordinates in a professional network. By reviewing a subordinate’s social media activity, a supervisor may learn that a valued subordinate is considering alternative employment and have an opportunity to re-recruit her. Social media is not an “on-off” switch. There are business risks in ignoring it. There are legal risks in jumping in without thinking through how the use of social media could be argued to violate the actual or perceived rights of applicants or employees. This webinar focuses on the intersection between social media and the employment relationship. Recommendations will be made to maximize the business benefits while minimizing the legal risk.

Approved for CA, NY, NJ and PA CLE credit and HRCI credit.

PRESENTED BY
Jonathan A. Segal 

Pricing: $65 | $55.25 for Nonprofit

For more information on financial assistance, please contact Deborah Margulies at dlmargulies@duanemorris.com or 215.979.1957.

How to Break Through the Glass Ceiling Without Getting Cut

I am pleased to share with you my latest post on SHRM’s “We Know Next” blog.

How to Break Through the Glass Ceiling Without Getting Cut can be found here.

Did the NLRB Bless Employees Who Use Social Media to Defame? Sort Of!

A manager gives an employee a final warning.  The employee is upset and tweets that her manager is a drug dealer. The employee knows her tweet is patently false but tweets anyway with malice.

Two employees compete for a job. The employee who does not get the job wants revenge. He posts on his Facebook page that his co-worker is a pedophile. The employee knows his Facebook posting is patently false; he maliciously posts it anyway.

Both employees have engaged in defamation and probably should be fired for their malicious conduct.  Moreover, the victims of the defamation could sue these malicious employees and potentially recover not only compensatory but also punitive damages.

What if the employer addresses the issue proactively?  Isn’t that what we all try to do? Avoid problems in the first instance. That’s what Costco did.

Costco  prohibited employees from using social media “to defame any individual or damage any person’s reputation.” Indeed, such a rule could not only avoid damages to the victims of venom but also save an employee’s job to the extent it serves as a deterrent to wrongful conduct.

So there is nothing wrong with the rule, unless you are on the NLRB. In its first decision on social media, the NLRB held the Costco rule violated section 7 of the National Labor Relations Act (“NLRA”).

The Board acknowledged that the rule did not directly prohibit employees from carping about the terms and conditions of their employment. Instead, the NLRB held the rule reasonably would be constued by employees to prohibit the exercise of section 7 rights, and therefore, was unlawful.

Really? No!  But that is, sadly, the way the NLRB views the world.  So what do we do now (until the NLRB opinion, hopefully, is appealed and reversed)?

In finding the Costco rule unlawful, the NLRB impliedly suggested two ways an employer could avoid the same result.

First, the Board emphasized that Costco did not expressly exclude protected activity under section 7. The Board stated: “there is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule.”

So, contrary to some prior guidance from the Board’s general counsel, “carve outs” may save a rule the NLRB otherwise might strike down. But how robust must the carve out be?

Also, if there is a carve out for protected activity under section 7, the employer does not want to suggest all concerted activity is protected. So does the employer attempt to draw a line between protected and unprotected concerted activity?

And, should not the carve out, if there were one, carve out from the carve out supervisors and managers? Afterall, they are not employees under the NLRA.

But they are covered by Title VII. So shouldn’t we have a carve out for communications protected by Title VII? And what about other employment or whistleblower laws? More carve outs?

I guess it’s no secret:  I am not wild about carve outs.

Second, the Board says that the rule is narrow and does not address other wrongs,  such as postings which are  abusive, harassing, malicious or unlawful. The opinion suggests that, if the Costco prohibition on defamatory and disparaging postings had been a part of a broader list of horribles, the prohibition, seen in context,  may not have led a reasonable employee to believe it precludes concerted activity protected by section 7.

So before you gut your social media policy’s prohibitions in this area, consider including a contextual framework for your rules on disparagement and defamation.  Include them among other “egregious conduct” so that you have “accompanying language” to serve as the potential  basis for a contextual defense.   This should minimize (not eliminate) your risk.

The Board’s decision is, I believe, not just wrong. It is sad.  It underestimates the intelligence of American workers and puts their reputations and potential livelihoods at risk in doing so.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

Defending Your Reduction in Force

As originally published in SHRM’s HR Magazine.

Defending Your Reduction in Force

Vol. 57 No. 9

A defense of the Age Discrimination in Employment Act comes of age.

9/1/2012 By Jonathan A. Segal

In Smith v. City of Jackson (544 U.S. 228 (2005)), the U.S. Supreme Court held that adverse impact claims are available under the Age Discrimination in Employment Act (ADEA).

However, the Supreme Court also held that, when a plaintiff establishes adverse impact, the employer’s defense differs from that under Title VII of the Civil Rights Act of 1964. For years, it has been unclear exactly what this means.

Under Title VII, an employer must establish “business necessity,” a difficult burden to meet. In contrast, under the ADEA, the Supreme Court said a different defense may apply: “a reasonable factor other than age.” While the Supreme Court said that the reasonable factor other than age defense was a lesser burden to satisfy than business necessity, it left undefined what the employer must establish to meet the defense.

This spring, the U.S. Equal Employment Opportunity Commission (EEOC) issued final regulations setting forth what an employer must establish to meet the defense. While these regulations apply only to the reasonable factor other than age defense, they are also instructive in avoiding both disparate treatment and adverse impact claims in the first instance.

This article discusses the defense in the context where it is most likely to apply: reductions in force.

Commission Regulations

Under the final EEOC regulations to establish the reasonable factor other than age defense, “an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.”

The EEOC enumerates five factors that should be considered. However, it also makes clear that no one factor is determinative.

Moreover, the commission states that additional undefined factors may be relevant.

The Known Factors

Here are the factors as stated in the regulations, and some suggestions on how to apply them:

Business purpose. “The extent to which the factor is related to the employer’s stated business purpose.”

Sometimes, the business purpose for an employer’s reduction in force is so obvious that the employer forgets to document it. Forget no more.

Before beginning a reduction in force, an employer must document its business purpose.

Simply saying you are trying to cut costs may not be enough because that is the goal of virtually every reduction in force. Employers should be more specific. For example, note that “The demand for product X has dropped by Y percent. Therefore, we need to cut our sales force by Z percent.”

The employer also needs to define how it will achieve its business goal. As the EEOC has made clear in the preamble to the regulations, a cost-cutting goal, without more, will not be sufficient to establish the reasonable factor other than age defense.

Fair application. “The extent to which the employer has defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination.”

Based on this general factor, which includes multiple components, a number of recommendations follow.

First, the employer should define and document the selection criteria. Obviously, seniority is the least risky rationale because it is the most objective. However, in a reduction in force, when you need to rely on fewer people to get the work done, you want to retain your best employees.

While it may make good business sense to lay off poor performers, doing so poses greater risk from a legal standpoint. Performance is often inherently subjective.

That does not mean that employers should not consider performance as the sole criterion or one of the criteria. However, employers need to be aware of, and mitigate, the risk involved in doing so.

One way employers can mitigate the risk is to make sure that there are behavioral bases to measure subjective competencies. For example, if an employer is going to consider initiative, there should be specific behavioral factors to measure initiative.

The employer also needs to determine whether the decision-making will be based on prior evaluations. To the extent that decisions differ from prior evaluations, the employer needs to document the reasons for the difference—for example, a decline in performance.

Alternatively, employers may wish to conduct new evaluations for those subject to consideration. But, again, to the extent that the new evaluations differ from the most recent evaluations, the employer should document the reasons for the differences.

Second, the employer should document how the selected criteria were applied to each individual. Often, that explanation is conspicuously, and fatally, absent.

Third, to minimize the risk that bias will infect the decision-making process, decision-makers should be provided with training on age discrimination and other forms of unlawful bias. The training should focus on blatant animosity and stereotypes—for example, that older employees are less productive and more resistant to change.

Fourth, when the decision-making is based on input provided by third parties, if there is any question about their input, the reduction-in-force committee should interview them to make sure there is a nonbiased reason and behavioral support for the input. Otherwise, if there is bias, such bias may be attributed to the reduction-in-force committee—that is, cat’s paw discrimination.

Finally, the committee ideally should be diverse. Diversity in the committee ensures diversity in perspective and makes it more difficult for someone to argue credibly that the committee favored its “mirror image.”

Objective assessments. “The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes.”

As mentioned above, training is critical. So is a review process. During a review, the reduction-in-force committee should focus on “proxy adjectives” that may be codes for age bias.

For example, assume that an employee is selected for reduction because she is “resistant to change.” The reduction-in-force committee should probe to determine whether there is a behavioral basis for the conclusion or whether it appears to be a proxy for age bias.

In one case I handled, a similar label was used. When the committee asked for examples of this characterization, none could be given. So, the decision to include the employee in the group to be terminated was revisited.

In another case, upon further inquiry, it became clear that the employee was not resistant to change but rather insubordinate when change was required. In this case, the explanation was noted and the employee was appropriately included among those subject to the reduction.

Adverse impact. “The extent to which the employer assessed the adverse impact of the employment practice on older workers.”

Virtually every employer knows the importance of conducting an adverse impact analysis.

However, some employers make the mistake of including equal employment opportunity demographic data when making initial decisions to assess the potential risk. This practice is dangerous because a finder of fact may believe that the employer included the data not to assess the risk but rather to make the decision.

No equal employment opportunity demographic data should be discussed or included in any documentation reflecting the initial decision-making. Rather, only after the preliminary decisions have been made should an adverse impact analysis be performed. In the context of such analysis, demographic data obviously will be essential.

With regard to age, employers should not focus only on “age 40 and over” vs. “under age 40” groups. Employers, as plaintiffs and courts do, should also focus on subgroups—for example, “age 55 and over” vs. “under age 55.”

In one case, when we looked only at under and over age 40 groups, there was no adverse impact. However, when we looked at under and over age 55 groups, the numbers were startling: Individuals age 55 and over were twice as likely to be let go as those under age?

Employers should look at subgroups in terms of age and then slice the data based on other factors, such as decision-maker, department and location. Again, while there may not be adverse impact if you look at the entire workforce subject to the reduction in force, there could be in the case of a particular decision-maker, department or location. This multidimensional adverse impact analysis should be conducted with regard to age and other factors, such as gender and race.

Degree of harm. “The degree of harm to individuals within the protected age group, in terms of both the extent of injury and the number of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.”

Under Title VII, even if the defendant establishes business necessity, the plaintiff still can prevail by establishing that there was a less discriminatory alternative to achieve the employer’s business goals. While the EEOC states that the less discriminating alternative analysis is not part of the reasonable factor other than age defense, it is in fact embedded in this factor.

There are steps, in the context of a reduction in force, that an employer may wish to consider to help avoid disparate treatment claims and to meet the less discriminatory alternative analysis implicitly embedded in this factor.

When there are multiple incumbents and salary is a factor, consider reducing the maximum salary that will be paid and offering an employee with the highest salary the option of remaining but at the lower pay, if he or she is a good performer.

When an individual is the sole incumbent, an employer may wish to consider offering the individual the option to transfer to another position, if he or she has high seniority and good performance.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

Frailty, Thy Name Is Woman

As published by SHRM’s We Know Next: found here.

From Shakespeare’s Hamlet 1602:

Heaven and earth,
Must I remember? Why, she would hang on him
As if increase of appetite had grown
By what it fed on, and yet, within a month—
Let me not think on’t—Frailty, thy name is woman!—

Hamlet is angry at his mother for marrying shortly after his father’s death.  He sees her as weak.  He generalizes the weakness he sees in his mother to women generally.

No progressive manager would say a sexist comment like that today. Actually, they might, just when they think they are being progressive!

Every responsible employer has a harassment prevention program.  So, managers are more sensitive with what they do and say. But sometimes their heightened sensitivity takes a dangerous turn.

A business meeting takes place among executives.  There are four men and one woman.  During the meeting, the group realizes they are not going to meet Wall Street’s expectations. One of the men snaps “oh f—”  For my friends in Texas, I don’t mean “federal.”

After he said it, the f-bomber looks to the woman at the table and says “I’m sorry.” Another man at the table digs the hole deeper by adding, “He did not mean to offend you.” (How did he know that?)

By focusing on the one woman at the table, both male executives not only drew attention to her but also suggested that she was a fragile creature who needed to be rescued and protected from their vulgar mouths.

In this not-so-hypothetical example, the woman was not offended by the expletive when it was used in response to bad economic news.  But she certainly did not like the attention being placed on her.  Having finished reading Jane Austen, she was not going to fall off her Victorian chair because of a curse word.  Do you think she never said it, let alone heard it?

In this case, if anything were to be said, it should have been, “Let’s keep it professional” without focusing on the woman.

But what if the comment were blatantly sexist?  Shouldn’t someone apologize to her now?

No!  Again, that only makes her the focus.  In other words, it makes it worse.  And, it suggests that, were she not there, the sexist comment would have been okay.

The focus should be on the troglodyte. And, one of the men should respond appropriately by saying immediately, “I am offended.” After all, you don’t need to be a woman to be offended by sexism any more than you need to be a person of color to be offended by racism.

You need to do more than the right thing….you need to do it the right way.  Pauline does not need to be rescued from her perils. She just needs an equal opportunity to succeed–or fail–on a level playing fiel

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

In The Year 2525

As published by SHRM’s We Know Next: See it here.

In 1969, Zager and Evans sang “In the Year 2525.”  If you are smiling, you too probably have looked in a mirror and asked: how did that happen? Did you ever wonder what the employment world will look like in 2525?  Perhaps the following:

  • The NLRB will help unions which are failing to thrive by trying to make employers post union-marketing notices to drum up business for them.
  • The DOL will create a smart phone application to help employees track their time so that they can more easily sue their employers.
  • The EEOC will interpret the ADA so broadly that even shy bladder syndrome (the ability to “pee on cue”) may be a disability.  While I have no doubt that Shy Bladder Syndrome is a real syndrome, I also have no doubt that illegal drug users are likely to develop bashful bladders in need of assertiveness training.
  • California will pass 22 employment laws in one year.

Oh no, we don’t have to wait until 2525.  All of the above have happened in the last year or so.
If this is where we are now, can it go any further in 2525?  Of course it can. Consider:

  • The Unconscious Dreaming Pay Protection Act. Why shouldn’t the unconscious get paid for its hard work? And, should not there be a higher minimum wage since, as we all know, the unconscious does the heavy lifting?
  • The Social Media Right to Bash Your Employer Act. Why should employees be dependent on the NLRB for protection? We need to create a private cause of action so employees can go right into federal court. Of course, it’s not about the money.  Just knowing you have hurt your employer’s brand, pushed away customers and put your colleagues’ jobs at risk if customers flee should be satisfaction enough.
  • The California Right to Choose Your Manager Act. Of course, the relationship will be at will so that employees can change managers at any time and for any or no reason and with or without prior notice.   And, there will be no exceptions to this at-will principle!
  • The Endangered Species Union Act.  All new hires must be given union authorization cards “for their consideration” when they are asked to complete their portion of the I-9.  After all, it is possible that they might miss whatever union notice the employer may be required to post.

As much as we try to do the right thing, not all employers do. Just as there are good and bad employees, there are good and bad employers. And, there is no question that we need the law to protect employees from wrongful conduct.
But overly aggressive plaintiffs’ lawyers and government agencies continue to push the boundaries of the law. And that does not always benefit employees.
As employers pay more to their lawyers, the reality is that there may be less money for their employees. Just as important: if everything is a legal issue, then we risk trivializing the important purposes underlying the laws. If everything is harassment, then nothing is harassment.
I hope we don’t have to wait until 2525 to find balance in protecting employees but without turning the workplace into what sometimes feels like a legal war zone. Moderation and balance are not inconsistent with protecting and enforcing employee rights. The extremes are, to me, extremely scary.
But, since we won’t be here in 2525, let’s continue the conversation at the Annual Conference. I will be speaking on the Year 2525 at Monday at 10:45 AM. I hope to see you there! Travel safely.

This blog should not be construed as legal advice or as pertaining to specific factual situations.

Widening Web of Social Media

I am pleased to post an article I wrote for HR Magazine on minimizing the risks and maximizing the rewards of social media: http://www.weknownext.com/trends/widening-web-of-social-media

Thank you to SHRM’s We Know Next for tweeting the article!

Jonathan

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

Guilty Without Bad Intent: The EEOC and Adverse Impact (June 18)

Register for webinar re-offered due to popular demand, here.

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Where in the World Is Aaron Greenberg?

As Published by SHRM’s We Know Next: find it here.

I was out of town, more than a thousand miles from my home town, Philadelphia, where I had lunch with some people I had never met. They could not have been nicer and we talked about many things including where we grew up and where we live now.  Being the worldly person I am, I mentioned that I live outside of Philadelphia, about 10 minutes from where I grew up.

Toward the end of the meal, one of my lunch mates asked me if I knew Aaron Greenberg in New York.   I didn’t, so I asked him why he thought I might. I did not want to jump to any conclusions.  He responded honestly:  I just assumed you would.

I told him that I appreciated his honesty, but that even though I am Jewish, I don’t know everyone who is Jewish.  But if he could help me find Aaron Greenberg, my card would be filled and I could get a prize. I explained, gently, that I was kidding, and that even though I love to use Yiddish, I don’t know everyone who is Jewish!

I told the story to an African American colleague who smiled and told me she has had similar experiences. People have asked her about people she would have no reason to know; only common denominator—race.  Gut in Himmel.  (God In Heaven).

We live in a world in which overt bias is less (although still existent).  But that does not mean that there is not bias. Bias is still alive and well, living in the unconscious.

Sometimes, it is tempting to strike back.  Get it. But  we need to try to educate individuals who may not realize the implications of what they are saying.

Consider the following:

  • You don’t sound black.
  • You don’t look Jewish.
  • You don’t act gay.

Scream internally but then ask calmly, “Help me understand:”
“What do black people sound like?”
“What do Jewish people look like?”
“What do gay people act like?”

More often than not, you will be pleasantly surprised with the response when the person realizes that what they said is based on a painful premise: you don’t look like the stereotype I held.

Of course, not always. I wear a replica of my grandmother’s chai (Hebrew for life) and someone once told me I do not look Jewish when they saw it. When I asked what Jewish people look like, I was told not to be so sensitive.  With a smile, I explained the rule of holes. When you are in one, stop digging.

We all make mistakes. And others will make mistakes, too. As HR professionals, when we hear assumptions (euphemism for prejudging), we have an opportunity to educate. Not everything is disciplinary.

Zero tolerance for good faith mistakes can lead to zero tolerance.   So, if you can, assume good faith and help the person reach his/her higher self.

Of course, this does not apply to hate words and symbols, or the like. There, we don’t educate. We terminate.

As Matt Lauer travels the world,  I have asked him to help me find Aaron Greenberg. No luck, yet.

So, if you find Aaron, please let me know.  I want to complete my card already!

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

Off-the-Wall Judgments/Settlements in Off-the-Clock Cases

Virtually every week we hear about another employer allegedly requiring, encouraging or tolerating non-exempt employees working off the clock.  Even large employers with robust compliance programs are not immune to such attacks.  It takes just one manager to edit down an employee’s time to stay within budget—true wage theft—and the legal ball may start rolling.

It was an honor to have published an article for Fortune on wage and hour issues in general and off-the-clock issues in particular: http://management.fortune.cnn.com/2012/05/29/the-new-workplace-revolution-wage-and-hour-lawsuits/

Here are 10 steps you can take to minimize your legal exposure to off-the-clock cases:

1.         Train supervisors that they cannot require, encourage or even suggest that non-exempt employees work off-the-clock.

2.         Let supervisors know that, if they break this rule, they will be subject to discipline, up to and including discharge.

3.         Train supervisors to report to HR  if they know, or have reason to know,  that an employee may have worked off-the-clock (even if the employee has not said anything).

4.         Develop a procedure by which HR speaks with employees about whom reports are made to determine  if they have worked off-the-clock and then sure that they are properly paid.

5.         Develop a policy that prohibits off-the-clock work which makes clear that employees must record all time worked.

6.         Develop a complaint procedure with appropriate assurances of non-retaliation so that employees can report concerns that they may have in this area without fear of retribution (broadly defined).

7.         Determine whether  question(s) or attestation(s) can be included in your time keeping system that asks employees if they have done any work off-the-clock so you can follow up with the employees, capture any time worked but not recorded and then pay them for it.

8.         Establish clear rules about whether and when employees can work remotely, such as checking e-mail, and how to ensure time is properly documented and paid.

9.         Establish clear rules on when overtime can be worked (for example, only with permission or if emergency circumstances); if an employee works overtime that he should not have, manage his/her performance, not his/her pay.

10.       Review supervisory changes/edits periodically to make sure that supervisors do not reduce the time of their subordinates so that they come in under budget.

Of course, some of these are best practices as opposed to legal mandates.  But best practices in this area can save a lot of money.

Under federal law, if a violation is found willful, you may be required to pay double what is owed to the employee, interest and two sets of attorneys’ fees, yours and the employees. Plus, a longer statute of limitations may apply.

And, under federal and state law, in some cases, there can be criminal liability.

Plus, state law damages may be even greater.

Have your attention?

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

Because Happy Workers Are Better Workers

There are studies that show we are more productive when we are happy.  So read, look, smile and then do good things for your employer.  Enjoy Memorial Day Weekend, too.  Please take a moment to remember those who lost their lives to keep us safe.

TRUE STORY:

After losing his parents, this 3 year old orangutan was so depressed he wouldn’t eat and didn’t respond to any medical treatments.  The veterinarians thought he would surely die from sadness. The zoo keepers found an old sick dog on the grounds in the park at the zoo where the orangutan lived and took the dog to the animal treatment center. The dog arrived at the same time the orangutan was there being treated. The 2 lost souls met and have been inseparable ever since.   I don’t know, some say life is too short, other say life is too long, But I know that nothing makes sense if we don’t touch the hearts of others in our journey of life!

The orangutan found a new reason to live and each always tries his best to be a good companion to his new found friend.

They are together 24 hours a day in all their activities.

They live in Northern California where swimming is their favorite past time, although Roscoe (the orangutan) is a little afraid of the water and needs his friend’s help to swim.

Together they have discovered the joy and laughter in life and the value of friendship.

They have found more than a friendly shoulder to lean on.

Long Live Friendship!

Guilty Without Bad Intent: The EEOC and Adverse Impact

For full course details and to register, Click Here.

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PA State Council of SHRM – 13th Annual Legislative and Legal Conference

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DMi – Remaining Programs for Spring 2012

To see full course details, or to register for a program, click here.

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The Devil Doesn’t Only Wear Prada

As originally published by SHRM’s “We Know Next,” found here.

We all know that powerful women face Catch-22s.  When Donald Trump exercises control, he is in control. When Martha Stewart exercises control, she is controlling.  Same behaviors; different labels.

A lot has been written about these Catch-22s.  Less has been written on how women with power can handle them.
Here are three of the many Catch-22s women with power face and my suggestions for how to navigate them.

1. Ice Queen

Women who maintain emotional control are sometimes described as Ice Queens.  Of course, those who demonstrate emotion may be equally criticized.

I once had a male client scream at me about how an emotional woman working for him was making him nuts.  I was glad he was not emotional.

It’s okay to show passion, compassion and emotion.  Just make sure that it’s in the framework of control.

Indeed, consider getting ahead of the curve. Whether you are male or female, educate your team on the importance of emotional intelligence.

And, don’t react to fears of being perceived as too emotional by being non-emotional.  That goes too far, unless you want your subordinates to wear winter coats in August.

Ice Kings and Queens are not likely to inspire passionate followers.  But subordinates tend to be tougher on the queens than the kings.

2. Tough

Women with power who are simply as tough as men are sometimes described as tough in either a disparaging way (“bitch”) or with surprise (“wow, is she tough”).  What were you expecting from the COO:  a shoulder to cry on?

Of course, if a woman is more collaborative, she may hear that she is not tough enough. Why can’t she make a decision on her own? Why does she need so much buy in?

Whether male or female, you need to be tough to lead.  And, regardless of gender, being strong is not inconsistent with being collaborative.

But, for women, this can be a more difficult balance in the eyes of the beholder.  Same behaviors may produce different responses.

People continue to tune in to hear The Donald say “You’re fired.”  People tuned out when The Martha said the same thing (in a less direct way).

Be strong.  And that doesn’t mean out-toughing Cro Magnon man.

Be collaborative. But be clear that you will make the decision (when it is your decision) and be decisive when you do.

3. Anger

When men are angry, they’re often seen as powerful.  Anger is a very powerful emotion if coming from a Y chromosome.  When women are angry, they are sometimes viewed as one step away from Glenn Close in Fatal Attraction.

There are times when you should be angry.  But recognize the double standard and be careful that the anger be focused on what was done and less on how you feel about it.  Contrary to therapeutic advice, keep the focus on actions and not on feelings.

Related, when men complain, they push.  When women complain, they sometimes are labeled “whiners.”  Don’t get me wrong:  incessant whiners, regardless of gender, are irritating.

But women often are judged more harshly when they complain so be careful when and how.

Compare:  “I am so mad I was excluded from the meeting” with “Glad to be here.  I’m sure you simply forgot to include me.”

Of course, not all women face all (or even some) of these or other stereotypes.  And, where they exist, they tend to be subtle pastels rather than the fluorescent lines I have painted to make the point.

The devil does not only wear Prada.  How easy it would be if it were that simple.

Where these stereotypes exist, they are often the product of unconscious bias and sometimes hard to detect.  Women with power need to deal with them consciously.  But, they do not need to go it alone.

There are plenty of progressive (and secure) men who do not hold these stereotypes.  To suggest that a progressive (white) male is an oxymoron is also an unfair and untrue stereotype.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

Costly Unpaid Internships

As originally published by SHRM’s “We Know Next,” found here.

An important customer, client, colleague or business partner asks an executive if her son can intern with your company for the summer.  Don’t worry about the money, she says.  My son is only looking for the experience.

As we approach the summer, expect more of these requests.  I personally have received quite a few already!

Sounds like a classic “win-win.”  The intern learns something and you strengthen an important relationship at no cost. So, the executive says “of course.”  Not so fast, please!

There have been several recent high-profile cases in which interns have alleged that they were really employees and should have been paid. While mere allegations do not mean actual liability, the fact is that the Department of Labor and the plaintiffs’ bar are focusing very closely on this issue.

In September 2011, a case was filed against Fox Searchlight Pictures, Inc. by two interns who had worked on the production of “Black Swan.”  They claim that they were misclassified as unpaid interns and that they should have been paid.

In February of 2012, an unpaid intern who worked for Harper’s Bazaar sued Hearst Corporation, the publisher of the magazine, claiming that her unpaid internship did not meet the internship requirements, and she should have been paid.

And, just last month, a class action suit was filed against Charlie Rose and the production company Charlie Rose Inc., alleging that unpaid interns who worked for the Charlie Rose Show should have been compensated saying they were really employees, not interns, under the federal Fair Labor Standards Act (FLSA).

Under FLSA, six requirements must be met for an individual to qualify as an intern. Take the time to read the regulations now or you may find yourself reading them later — responding to a DOL audit or answering a complaint.

The six requirements are:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Of the six factors listed, the fourth is typically the hardest to meet. It requires that the employer not receive any real benefit from the intern’s “work,” and that, at times, the intern’s presence actually impedes operations.  Ouch.

So, talk with your executives.  Let them know that before they say yes to an offer that sounds too good to be true, they should check with you — because it may be too good to be true. You don’t want your unpaid internship to make a plaintiff’s lawyer rich at your expense.

THIS ARTICLE SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP

Never Again: Holocaust Remembrance (Yom Hashoah)

Tomorrow, Thursday, April 19 is Holocaust Remembrance Day, Yom Hashoah.

It has been more than 60 years since this period of unspeakable horror when more than 11 million people were killed. This includes more than 6 million Jews. While each life is equally precious, in many countries, entire Jewish communities were exterminated.

There were also many righteous gentiles who fought the Nazis. A Catholic Church in Poland saved my aunt, at personal risk to those saving her.  She is not the only one whom they and others saved.

On a personal level, the families of 3 of my 4 grandparents were exterminated. There were but a few survivors.

A few years ago I visited Auschwitz where some family members died and, beyond odds, a few survived. There are no words.  My world view has been forever altered having been there.

We say Never Again.  May that apply to all people.

In gratitude to my firm for recognizing this day.

In memory of my family members and a special prayer for all the children whose lives were taken from them.

Federal Court Finds NLRB’S Employee Rights Posting Unlawful

Judge David Norton of the federal district court in South Carolina in a case brought by the South Carolina Chamber of Commerce on Friday, April 13, held that the rule announced by the NLRB in September of last year that employers must post a Notice of Employee Rights under the National Labor Relations Act exceeded the Board’s statutory authority and is, therefore, unlawful. Judge Norton held:

Based on the statutory scheme, legislative history, history of evolving congressional regulation in the area, and a consideration of other federal labor statutes, the court finds that Congress did not intend to impose a notice-posting obligation on employers, nor did it explicitly or implicitly delegate authority to the Board to regulate employers in this manner.”

In the opinion, the Judge excoriated the Board by noting that:,

“The Board also went seventy-five years without promulgating a notice-posting rule, but it has now decided to flex its newly-discovered rulemaking muscles,”

As noted in my blog last fall when the proposed rule was first published, nothing in the National Labor Relations Act mentions, let alone authorizes the Board to compel employers to post, a notice advertising the protections of the Act for those employees who engage in or contemplate engaging in union activity. Simply, even the Obama Board cannot ignore the law to further its partisan agenda.

The Board’s action was contrasted to the explicit authority granted by Congress to various other agencies to publish and require notices in non-remedial situations, e.g., employment discrimination, workplace safety.

This decision conflicts with an earlier holding by Judge Amy Berman Jackson of the federal district court of the District of Columba that upheld the Board’s authority to require the posting.

Unfortunately, it is not entirely clear what the Board or the courts will do now. The South Carolina decision is just that, a South Carolina decision. It is possible that the Board may take the position that its effect will not go beyond that court’s jurisdiction. The district court of South Carolina is in the Fourth Circuit (Virginia, West Virginia, Maryland, North Carolina, South Carolina). Consequently, unless you are in one of those states, the decision may not shield you from the obligation to post the notice by April 30. However, it is possible that the South Carolina decision will be construed to have a broader application because it appears to enjoin the Board and its General Counsel from doing anything to enforce the rule.

For now, employers who do not wish to voluntarily post the notice should wait until their obligation, if any, is further clarified or, at least, until after the Board indicates what it believes the application of the South Carolina decision should be.

Hopefully, the Board will suspend generally the obligation to post the notice, pending the resolution of the discrepancy between the holdings of the District of Columbia and South Carolina district courts and other outstanding issues. Most certainly, the Board will appeal the South Carolina decision, just as the DC decision has already been appealed. What it will do or be permitted to do in the meantime is still unclear.

One can hope the Board will again delay the application of the rule to permit time for these issues to be resolved, but prudence suggest that we not depend on the realization of our hopes when it comes to this Labor Board.

Elephant in the Living Room

As originally published by SHRM in HR Magazine Vol. 57 No. 3.

Alcoholic employees present a range of legal risks.

3/1/2012   By Jonathan Segal

Al has been employed by his company for 15 years. For the first 12 years, he was a superstar. He worked hard and consistently exceeded performance expectations. Clients loved him. Employees admired him. During the past three years, Al’s performance has steadily declined in quality and quantity. And he’s had a number of exchanges with clients and employees that have been anything but positive. Al talks a lot about his three closest friends: Jack Daniels, Jim Beam and Old Grand-Dad. On occasion, colleagues smell what they believe to be alcohol on his breath. What do you do? Do you focus only on the declining performance? Or, do you address the elephant in the living room—Al likely has an alcohol problem?

Disability Defined

While the Americans with Disabilities Act (ADA) was designed to protect applicants and employees with disabilities from discrimination, one unintended adverse consequence is that it also makes it legally riskier for employers to deal directly with physical or mental disabilities that may be the cause of performance or behavioral issues.

Enacted in 1990, the ADA defines a disability as a physical or mental impairment that substantially limits a major life activity. An individual may be protected if he or she has a present disability, has a record of a past disability, or is regarded as having a disability.

In a number of decisions, the U.S. Supreme Court construed the definition of disability narrowly. In response, in 2008, Congress passed and President George W. Bush signed the Americans with Disabilities Act Amendments Act, which was effective Jan. 1, 2009. Although the amendments did not change the definition of a disability, they did include provisions that compel a broader interpretation of the definition. Indeed, it now seems that almost everyone is disabled.

Critical to the “regarded as” disability prong, the amendments provide that an individual may be regarded as having a disability if he or she is subject to an adverse action because of an actual or perceived physical or mental impairment, regardless of whether the impairment limits or is perceived to limit a major life activity. This definition is so broad that any discussion by an employer of an employee’s physical or mental condition may serve as the predicate for a perceived disability claim, discussed in detail below.

In 2010, the U.S. Equal Employment Opportunity Commission (EEOC) published regulations under the amendments. The regulations take the expansive provisions of the amendments further.

For example, the regulations provide that:

•           The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination occurred, not whether the individual meets the definition of disability.

•           While individual assessment is still required as to whether an individual has a disability, whether an impairment “substantially limits” a major life activity “should not demand extensive analysis.”

•           “Substantially limits” shall be interpreted and applied to require a functional limitation lower than the standard applied prior to the ADA Amendments Act. Curiously, while the commission states that the standard is lower, it does not state what the standard is.

The regulations then include examples of conditions that “in virtually all cases” will meet the definition of disability. The broad list includes physical disabilities, such as cancer and HIV, as well as mental disabilities, such as bipolar disorder and major depression.

Substance Abuse

The regulations are conspicuously silent on alcohol and drug dependency. However, the law preceding the amendments to the ADA with regard to alcohol and drug abuse remains unchanged. The rules with regard to substance abuse generally are:

•           Alcoholism is usually a disability under the ADA. The same is true of dependency on prescription drugs, as long as the drugs were prescribed for the individual who has grown dependent on them.

•           Current use of illegal drugs is not protected. There is a specific carve-out under the ADA for this. Illegal drugs include drugs such as heroin and prescribed drugs used by someone other than for whom they were prescribed.

•           An individual who is in recovery from a problem with alcohol or with legal or illegal drugs is protected from discrimination under the ADA.

•           However, even if an employee is disabled—for example, an alcoholic—an employer generally can take adverse action against an employee who:

•           Uses or possesses alcohol or drugs in violation of the employer’s policy.

•           Is unfit for duty because of alcohol or drug use.

•           Fails to meet the employer’s expectations in terms of performance, conduct or attendance, even if the failure is because of substance abuse.

•           Two more background points:

•           Even if an individual is not protected by the ADA, he or she may be protected by the Family and Medical Leave Act (FMLA) or state law. For example, substance abuse is a serious health condition under the FMLA, and substance abuse is not limited to legal drugs.

•           The distinction between current and prior illegal drug use is easy to articulate but often difficult to apply. According to the EEOC, “current drug use” means “that the illegal use of drugs occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is an ongoing problem.” It is not limited to use on that particular day or in recent weeks or days, but is instead determined on a case-by-case basis, according to the commission’s A Technical Assistance Manual on the Employment Provisions (Title?I) of the Americans with Disabilities Act.

Statistics vary, but at least 7 percent of the U.S. adult population is estimated to suffer from alcoholism.
Only a very tiny fraction of that figure actually seek alcohol addiction treatment in Point Loma, CA or any other place in the United States. 

Three Approaches

With this background, let’s return to Al.

While there are varying statistics, at least 7 percent of the U.S. adult population is estimated to suffer from alcoholism. In some professions or cultures, the number is considerably higher.

Moreover, according to the U.S. Department of Health and Human Services:

•           7 percent of U.S. workers drink during the workday, usually at lunch.

•           9 percent of U.S. workers have nursed a hangover while working.

For purposes of our discussion, we will assume that an alcohol problem is causing Al’s declining performance and behavior.

Generally speaking, there are three approaches for dealing with Al. One option would be to wait until he reeks of alcohol and then test him under your reasonable-suspicion policy, providing that you have one. This hits the issue head-on.

There are, however, a couple of potential problems with this approach. For one thing, his poor performance will continue in the interim. For another, even if Al is tested, he may test negative. Sometimes an alcohol smell comes not from the breath but from the skin.

The second option would be to deal directly with the performance issue and only the performance issue. There are two clear benefits to this approach: You focus on what you are qualified to judge (whether the employee meets performance expectations), and you minimize your risk under the ADA. If you focus on the performance issue and stay away from the alcohol issue, Al will have a more difficult time alleging that an adverse action was taken because you perceived him to be disabled.

However, there is a potential problem with focusing only on performance and ignoring the alcohol use: Performance management will not always work.

“Because the sense of denial is so strong, it needs to be pierced,” says Paul Hokemeyer, an addictions specialist with Caron Treatment Centers in Boca Raton, Fla. “Sometimes you can pierce the denial by focusing on performance; other times, a more direct approach is required.”

The third option is to address the performance problems as well as the alcohol issue—to pierce the denial. There are three variations of the third option:

Simply mention the issue and offer to help. It’s possible that just raising the issue may be enough, but it’s unlikely—unless the individual is ready to receive help.

Mandate an evaluation. Here, you ask a reputable substance abuse professional whether there is an objective reason to question the employee’s fitness for duty and then require an evaluation if the answer is in the affirmative.

This approach carries with it greater legal risk because you are requiring a medical evaluation under the ADA and you are potentially setting yourself up for a perceived disability claim, too. Do not expect a “Thank you for caring.”

“People who suffer from addictions may react like a mother tiger protects her young. The individual may feel trapped and threatened and could respond with hostility and anger,” Hokemeyer says.

Hire a substance abuse professional to conduct an intervention to encourage the employee to submit to the required evaluation. When conducting the intervention, the professional often elicits the help of family and friends.

This approach involves the greatest legal risk, but it has the greatest likelihood of being successful. Be sure to hire a skilled professional who knows how to respond to the denials and inevitable attacks.

Risk Selection

It is not illegal to address the alcohol use. It is simply a course of action that carries with it legal risk. But not taking the legal risk in some cases can carry with it other types of risks; in these cases, you are engaging in risk selection, not risk avoidance. In other words, simply doing nothing for Al is not risk-free. To the contrary, an employer may “buy” other risks.

There are the human and employee relations costs. The employee’s alcohol problem is often recognized by everyone but the employee, and most people care about the deterioration they see.

Alcohol and other substance abusers often abuse more than alcohol. Sadly, but indefensibly, addicts sometimes abuse those who work for and with them.

There is a financial cost of ignoring the alcohol issue. “Alcoholism is an acidic cancer that will ultimately turn the performer’s gold into lead,” says Hokemeyer. “We also see performance not just recover but reach even higher benchmarks after the person enters a recovery program.”

Finally, depending on the employee’s job, if you focus solely on performance and avoid the alcohol use, you may be setting yourself up for a claim by a third party injured by the impaired employee’s conduct. For example, in health care, would you rather have a wrongful death claim or a perceived disability claim? Pick your plaintiff.

Such discussion invariably leads to the question “How many elephants do you have in your corporate living room?”

THIS ARTICLE SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP

Hooked Up On Twitter (A CAUTIONARY TALE)

Hooking Up On Twitter (A CAUTIONARY TALE)

by Jonathan Segal

on February 27, 2012

As published by SHRM’s We Know Next: www.weknownext.com

I begin this cautionary blog with a story. After the story, you’ll understand why I began the blog as I have.

I wrote an article on holiday parties for Business Week. I discussed the risks, including too much alcohol consumption and sexual harassment. Of course, the two often are connected.

Well, the article included a little sarcasm. Perhaps a little more than a little. So it was tweeted pretty heavily.

As you know, when people tweet, they can add their own message. As I learned later, one tweeter included the words party, alcohol and sexual. They forget the harassment. No Freudian miss there.

So one night I went to the movies and came home late (10 p.m. for me) and decided to go to bed without checking my e-mail. I try to do that twice a year to deceive myself into believing that I am mentally healthy.

The next morning, I logged on and noticed that I had many new Twitter followers. Twit that I am, I am very happy.

Until, I see the followers. They saw alcohol, sexual and party and were very interested.

But they were not interested in legal issues. They were selling sexual services, quite literally and explicitly.

I immediately sent messages: do not follow me. But I don’t think Candy Cane is a big reader.

So, now I decided it was time to ratchet things up. I copied my bio (hoping a big law firm would intimidate) and, to my delight, they went away. I would like to think that it was the law firm and not the fact my bio has a picture!

After cleaning this up, I learned of a very important twitter feature: block. And, when it comes to social media it is a critical tool… beyond responding to sex workers.

All too often people tweet or follow and think more is better. Not always.

Social media is a form of communication. And, at the risk of the obvious, it is a two way street.

Check your followers and make sure there is no one you do not want following you. I have advised clients to do this, and they have found among their followers piranhas masquerading as plaintiff’s lawyers. Block!

If you follow someone, read their tweets. If their tweets are offensive or unseemly, unfollow. I followed a reporter. I thought one of his tweets was sexist. Unfollow.

In social media, it is the quality of your relationships that counts, not the number of them.

Gotta go. Wrote a blog last month for WeKnowNext on Valentine’s Day called  “I Love You.” They’re back!

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

Jonathan Segal will speak at the SHRM 2012 Employment Law & Legislative Conference on Tough Love: What Your CEO Won’t Tell You About HR, But I Will and Inside the Mind of the State Rep. For more information, please click here.

7 Ways Employers Can Protect Their Ass(ets)

As originally published by ALM’s “Law.Com,” found here.

From the Experts: 7 Ways Employers Can Protect Their Ass(ets)

Some things you need to know about labor law in 2012.
A list of seven action items for employers to help minimize exposure to labor and employment law litigation.

We’re in the first quarter of 2012, and the government and plaintiffs’ lawyers are continuing their assaults on businesses. Perhaps the biggest job growth this year will be in the employment of defense counsel. Here are seven areas where employers already are—or are likely to be—challenged in 2012 and recommendations for minimizing exposure to such attacks.

1. GINA

The Genetic Information Non-Discrimination Act generally prohibits employers from asking employees about genetic information. You may be tempted to skip this section because most of your managers don’t start Monday mornings by asking: “How was your weekend, and do you have any genetic information that you would like to share with me?”

Yet, under GINA’s regulations, our managers may be doing just that. More specifically, the regulations make clear that there are some very particular dangers regarding an employee’s genetic information. When you ask for medical information, if you do not tell the employee’s doctor not to disclose the genetic information to you, and if you then get genetic information, it is as bad as if you had actually asked for it.

The regulations include a “safe harbor” disclaimer that is recommended be included with all requests for medical information. If you include the disclaimer and you receive genetic information, you still cannot use it, but it will not be treated as though you had asked for it.

Action Item: Review your policies and practices to make sure that you include a GINA disclaimer whenever your HR manager asks for medical information to support a leave under the FMLA, an accommodation under the ADA, etc.

Also, make sure managers are trained in what to do and not do if an employee discloses that a family member has a medical condition. If an employee tells her supervisor that her mother has breast cancer and so did her grandmother, the supervisor may be tempted to encourage the employee to be screened.

But if the employee later is subject to an adverse employment action, the employee may claim it was because of the supervisor’s concern about her genetic likelihood of getting cancer. Sad but true, like the ADA, GINA can make kindness risky.

Tell the employee she is in your thoughts and prayers. Even offer to help. But stay away from medical recommendations.

2. ADA and Leaves of Absence

The EEOC loves consistency, except when it doesn’t. The subject of maximum leave provisions is one of those areas where it doesn’t.

To maximize consistency, many employers have policies that provide that employment will terminate automatically if an employee is absent a certain number of weeks, for example, 26 weeks. The EEOC has taken the position that these automatic termination provisions violate the ADA and has sued numerous employers—and includes on its website the multimillion dollar settlements it has extracted from employers.

Action Item: Revise your policies to make clear that an employee’s employment will not terminate automatically when the “flexible maximum leave” is reached. Rather, before the maximum is reached, the employer will reach out to the employee to determine whether there are any accommodations that would enable the employee to return to work or whether the employee needs additional leave, and whether such additional leave may be a reasonable accommodation. Develop a protocol to implement the policy.

3. FLSA—Remote Work

The FLSA was enacted in 1938 when people worked at work. We now work everywhere—all the time—and the question now becomes: how does the FLSA apply to work outside of the workplace?

Last year, the U.S. Department of Labor developed a smartphone application so that employees could keep track of their own time. The DOL also created hard copy “exhibits” for employees to track their time. In taking these steps, the DOL has stated that employees must be paid for any work they do, regardless of where they do it.

Some have suggested that the DOL is encouraging claims rather than adjudicating them. Whatever the intent, the effect will be to add wind to the tsunami of wage and hour claims. The number of collective actions has increased by more than 400 percent since the 1990s.

Action Item: Focus on off-duty work in terms of your wage and hour practices. Make it clear that non-exempt employees cannot do work remotely, absent prior permission from their supervisor. For example, if BlackBerries or other PDAs are given to non-exempt employees, tell them when they can use them, how to record their time, and pay them for such time.

4. Like Me Bias

We all know that there is not only conscious bias but also unconscious bias. Of course, the unconscious bias exists only at your competitors but never in your own organization!

The EEOC and private plaintiffs’ lawyers are attacking subjective hiring practices where hiring managers hire or promote someone who is like them—in other words, “like me” bias.

When white men look in a mirror, they don’t see a woman of color. Of course, the converse is equally true. So, if we hire and promote our mirror images, we may be engaging in unlawful bias, albeit often unconsciously. At a minimum, we may be excluding talent to our detriment.

Action Item: Have a diverse team make your key hiring decisions. It would be hard to argue that a diverse team hired its mirror image. Plus, diverse teams tend to come up with better decisions by including different perspectives.

Also, be careful of “cultural fit,” which may be seen as a proxy for bias against someone who differs from the group. Where cultural fit is an issue, focus on behaviors exhibited or expectations expressed that were problematic. If you cannot explain them, you have a problem. And if the explanation sounds stereotypical, you have a problem.

5. Social Media and Disparagement

Before the advent of social media, when employees were unhappy, they used to talk with their co-workers. Now, they may blog, tweet, or otherwise send a postcard to the world fulminating about their employer. The initial response may be to fire the employee. Be careful: the posting may be protected.

The National Labor Relations Board is beyond protective of employees who complain about the terms and conditions of their employment by way of social media. While the National Labor Relations Act protects only “concerted activity,” the NLRB has defined concerted activity so broadly that even narcissists who complain only about their individual treatment may be protected in some circumstances. And, remember, the NLRA applies to non-union employers too.

“Disparaging” postings may be protected by other laws, too. For example, allegations of unlawful bias or other unlawful activity may be protected by federal, state, and local non-discrimination and whistleblower laws. Plus, some states have off-duty conduct statutes that may provide further protection.

Action Item: Review your social media policy and minimize the risk that it will be deemed to prohibit protected activity. Prohibit supervisors from taking adverse action based on a social media posting without checking with HR/counsel first so you can assess whether the posting may be protected. And don’t forget the practical reality that terminating an angry blogger only gives him/her more time to post crazed vituperations about you!

6. Performance Management Guidelines

To ensure due process, many employers have progressive discipline policies. I am a believer in progressive discipline, but there are risks in spelling out in too much detail what you will do and how you will do it. If you don’t follow the policy and/or procedure, the employee will argue this is evidence of bias. Don’t let your best legal defense in these circumstances be the lame: “We never follow our policy and/or procedures anyway, so our failure here is not bias“ That’s hardly the sort of defense you want to assert if you want to be seen as a great place to work.

Assume that, over the next year and beyond, we will continue to expect more and have less time and tolerance for those who don’t meet our higher expectations. In the 70’s, Spiral Staircase sang, “I love you more today than yesterday, but not as much as tomorrow.” The update today could be, “I expect more from you than yesterday, but not as much as tomorrow.”

Action Item: Make sure you reserve the right to skip steps in any policy you may have. Consider listing possible steps without suggesting there is a progression from one to the next.

7. Retaliation

The U.S. Supreme Court has leaned toward employers in every area except one: retaliation. In retaliation cases, employees have won every case before the high court. In 2010, retaliation charges were the most common charge filed with the EEOC (for the first time). The same was true in 2011, and we can expect the same in 2012 again.

Sometimes retaliation claims happen because we wait too long to act. An employee knows he/she is in trouble. Before the manager approaches the employee, the employee consults with a lawyer. Then, the employee approaches his/her manager: “I know my performance is not what it should be. That’s because I am clinically depressed, ADA style, because you have been discriminating against me, Title VII style.” The retaliation claim has been set up if and when adverse action follows.

Action Item: Don’t put off the inevitable. When you have made a decision to take adverse action, do not delay. Delay creates a window of opportunity for a protected complaint. Develop a robust retaliation policy that tracks the broad holdings of the Supreme Court’s decisions—for example, prohibited retaliation is not limited to tangible employment actions, but also may apply to other material terms and conditions of employment. Emphasize in training that the fact that a complaint lacks legal merit is almost never a defense against retaliation claims.

And treat retaliation as seriously as discrimination and harassment, which we should treat very seriously. Remember, even if the regulators have taken certain legal rights to the extreme, discrimination, harassment, and retaliation are still wrong. Very, very wrong.

The enormous regulation and extreme litigation result in employers spending too much time and money on lawyers. While legal fees are unavoidable, they can be minimized with careful and proactive planning so that you can achieve your legitimate business goal with less risk.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

March 14: DMi Spring Semester Kick-Off

Join us on March 14, 2012 for the start of another DMi semester. My colleague, Jonathan Wetcher, and I will present:

AM: Documenting Discipline  (Segal)

PM: Employment Agreements: Paperwork that Matters  (Wetchler)

You can attend one or both

Click here for full course descriptions and registration details.

We hope to see you!

Jonathan

215-979-1869

I Love You (A Valentine’s Day Warning)

As originally published by SHRM’s “We Know Next” found here.

I Love You

It is 9 am.  The secretary reports to her desk.  Waiting for her is a sealed card.

The secretary opens the envelope and it is a Valentine’s card from her manager.  Having undergone sensitivity training, the manager signs it “fondly” as opposed to “lovingly.”

The employee is creeped out and goes to HR.  HR talks with the manager based on a script we had prepared together.

HR asks the manager if he knows why the card is inappropriate.  He responds “no.”

HR asks the manager to whom else he gave a Valentine’s card and he answers his wife.  Again, it is asked:  do you know why card was inappropriate?  Again, he answers “no.”

We now take out the crow bar.  Is there anything you do with your wife in privacy that you don’t do with secretary?  Ding.  Ding. Ding.

Every year, we get 1 or 2 calls about harassment claims arising out of Valentine’s Day cards.  Employees can be so sensitive when their bosses tell them:

To the love of my life

I cherish our moments together

I love you

Recommendation:  no Valentine’s day cards at work.  This is particularly true in terms of supervisory-subordinate relationships.

Of course, that does not mean that everyone who sends a Valentine’s day card is intending to convey a romantic message.  After all, there are now Valentine’s day cards for parents, kids, etc.

For some, the Valentine’s day card is simply a way to say you are important to me.  The problem is the nature of the holiday may confuse the reason as to why the employee is important.

Make clear to your employees, by your words and actions, how important they are to the organization.  Recognition and appreciation are the vitamins employees need every day. Just don’t tell them that they are the loves of your life. Unless you want a plaintiffs’ lawyer to fall in love with you.

This blog should not be construed as legal advice, pertaining to specific factual situation or establishing an attorney-client relationship.

Au Revoir Bad Precedent

As originally published by SHRM’s “We Know Next” found here.

Au Revoir Bad Precedent

As we all know, in EEO termination claims, how we treat the “comparators” is critical.  Two (2) key questions:

  • Did you let anyone else go for a same or similar reason?
  • Did you not let someone else go even though they had engaged in same or similar conduct?

What do you do if you have an inconsistent practice historically?

If you take a hard line, you may get an EEO claim. You are treated more harsher than X because of my  [insert protected group or protected activity].

If you play it safe and a avoid hard line, you run the business risk by making bad precedent a consistent policy.

The beginning of a New Year is a great time to minimize the risk of bad precedent.

Prepare a document now stating that, regardless of what may have been the practice in the past, effective January 1, 2012, you will do X consistently.  You may even want to communicate something to that effect to the workforce (but without directly stating that there have been prior inconsistencies).

What is the benefit?  You can show you have decided how you will handle the situation prior to and independent of knowing who next engages in the conduct at issue. If an employee is fired and brings a discrimination claim and uses pre-2012 comparators, you can defend on ground that the difference is not age, sex, race, etc., but rather the year in which the infraction occurred.

This does not eliminate the legal risk.  But it should minimize it materially.  And the legal risk that remains must be balanced against the business risk of tolerating substandard conduct to avoid any legal risk.

Of course, it is more complicated with unions.  You may need to negotiate with the union.  At a minimum, you always should provide the union with notice.

As always, talk with your counsel. Bad precedent is, well, bad.  Now is an ideal time to start making good precedent.

This blog should not be construed as legal advice, pertaining to specific factual situation or establishing an attorney-client relationship.

Wellness Event: January 17 at 6 pm at Duane Morris

KICK OFF 2012 WITH A NEW WORKPLACE WELLNESS STRATEGY!

Take steps this year to improve the wellness of your employees and at the same time support the CROHN’S & COLITIS FOUNDATION OF AMERICA.

JANUARY 17, 2012
6:00 PM – 8:00 PM

Duane Morris LLP
30 S. 17th Street – Philadelphia

Health & Wellness
Networking Opportunities
Marketing Strategies

Wellness presentation by
Dr. Robert Danoff
Aria Health

Includes drinks and appetizers

RSVP to Brenda Greene
bgreene@CCFA.org or
215-396-9100

Severance May Offset Unemployment in PA effective 1/1/12

Act 6 of 2011 was signed into law on June 17, 2011 by then Governor Rendell. It amended the Pennsylvania Unemployment Compensation Law in a number of ways. Most significantly, for the first time in Pennsylvania, severance pay may serve as an offset against unemployment compensation benefits.

The offset is calculated by subtracting 40 percent of the “average annual wage” under the Unemployment Compensation Law from the total severance amount. Currently, this “40% of the average annual wage” calculation equals $17,853. This means that claimants can receive up to a gross amount of $17,853 in total severance pay before their unemployment compensation benefits are affected.The effective date of the Act’s severance pay provision is January 1, 2012. Severance agreements reached between an employer and employee in 2011 should not impact the employee’s unemployment compensation benefits, even if the severance pay continues into 2012. Act 6 states that its severance pay provisions apply to benefit years that begin on or after the effective date, but will not “apply to severance pay agreements that were agreed to by an employer and employee prior to the effective date.”

What does this mean for Pennsylvania employers?

  1. The cost of severance agreements may go up as plaintiffs’ lawyers filter into any settlement the offset. The Commonwealth’s gain may be at the employer’s expense.
  2. Do not state or suggest that severance will not affect unemployment. It may.
  3. Consider including in your severance agreement a statement to the effect that the denial or reduction in unemployment will have no effect on the general release. Many agreements address denial of unemployment but will need to be modified to address reductions in unemployment.

 

This blog should not be construed as legal advice, as pertaining to specific factual situation or as creating an attorney-client relationship.

Holiday Gifts for Plaintiffs’ Lawyers

From www.weknownext.com

Holiday Gifts for Plaintiffs’ Lawyers

by Jonathan Segal on December 8, 2011

The holidays are a wonderful time to share good feelings and sometimes that includes gifts.  But you don’t want your seasonal gift to result in a January gift for plaintiffs’ lawyers.

Now is a good time to look at your policies on giving and receiving gifts and remind employees of their application to the holiday season.  Here are some suggestions:

  1. Never solicit a gift.  The subtle “I am sorry but I don’t recall receiving your holiday cheer this year” is as subtle as Lady Gaga is conventional.
  2. Check your policy to see if you can accept gifts.  There may be a prohibition or requirements, for example, donate to a charity.
  3. Even if you can accept gifts, some gifts may collide with other policies.  For example,  some vendors and suppliers may give a bottle of wine or other alcohol as a gift.  Yet, many employers prohibit alcohol in the workplace.  Address head on:  If you are given a gift of alcohol, do not open or consume at work—take home the day of receipt.
  4. Make clear that there should be no gifts of a sexual or suggestive nature. Yes, managers have given subordinates gifts from Victoria’s Secrets. These same managers send Valentines cards to their subordinates, too. What are they thinking? Yes, I am giving them the benefit of the doubt by using the word “thinking.”
  5. Consider placing limits on the dollar value of gifts that can be given or received, if you have not done so already. Gifts that are expensive may suggest something is expected in return. You don’t want your employees giving or receiving Jimmy Choo shoes, Python golf clubs or trips to Bermuda.
  6. Consider requiring employees to report gifts that have a likely value above a certain number, for example. Many employers already have such a requirement so it is simply a question of reminding employees of the application of the rule to the holiday season.
  7. Make explicit that there can be NO gifts to elected or appointed officials. A gift to the EEOC investigator assigned to your case may result in a referral to the justice department.
  8. When giving gifts, think about the card that goes with it. If you know someone celebrates a holiday, it is fine to refer to the holiday. If I know someone celebrates Christmas, I always wish them a Merry Christmas, just as I appreciate when someone who knows I celebrate Hanukkah wishes me the same. But if you don’t know, don’t guess, stereotype or assume; play it safe with “happy holiday.”
  9. Remember, not all employees celebrate holidays at same time of year (or celebrate holidays at all). Legal and employee relations considerations require that we consider time off (now or at other times of the year) on days other than when our offices close.
  10. Of course, the greatest gift to a plaintiffs’ lawyer can be harassment and other claims that arise from a holiday party. You can still have fun at holiday functions without making plaintiffs’ lawyers rich. See article I wrote for BusinessWeek on this issue here.

Finally, I cannot avoid taking advantage of the opportunity to speak for those who cannot speak for themselves. Consider for a friend or loved one the gift of life: an older shelter cat or dog that may not survive without you! Too many precious creatures are euthanized every day. Please save one.

This blog should not be construed as legal advice, pertaining to specific factual situation or establishing an attorney-client relationship

DMi – Harassment, EEO and Other Investigations

Duane Morris Institute

presents a seminar on Harassment, EEO and Other Investigations

Wednesday, December 7, 2011| 9:30 a.m. to 1:30 p.m.

Presented by: Jonathan A. Segal

 

Seminar Location:
Duane Morris LLP, 30 South 17th Street, Philadelphia, PA 19103

Approved for 3.5 Hours of PA CLE credits, 4.0 Hours of NJ CLE credits,
4.0 Hours of NY CLE credits and 3.5 Hours of HRCI credits

For information and to register, please click here.

ABOUT THE SEMINAR

If an employee alleges that he or she has been subject to unlawful harassment, discrimination or retaliation, an employer ordinarily has an obligation to commence an immediate investigation. In some cases, the investigation may help the employer avoid liability altogether. At a minimum, it may minimize exposure to damages. However, often the focus in litigation becomes the quality of the investigation as opposed to the underlying conduct giving rise to it. This seminar will focus on when and how to investigate allegations of unlawful harassment, discrimination or retaliation. Particular attention will be paid to how to document the input obtained from all of the relevant parties as well as how to document the decision-making and corrective action processes. This 4-hour seminar is designed for in-house counsel, human resource professionals and executives.

END OF SEMESTER REGISTRATION SPECIAL:
Bring TWO people for the price of ONE

For more information on financial assistance, please contact Deborah Margulies at dlmargulies@duanemorris.com or (215) 979-1957.

Plaintiffs’ Lawyers Under the Mistletoe

Please see my recent article in Business Week: http://www.businessweek.com/management/

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS ESTABLISHING AN ATTORNEY CLIENT RELATIONSHIP OR AS APPLYING TO SPECIFIC FACTUAL SITUATIONS

The NLRB and Boeing: The Life and Death Consequences

For the first time I can recall, the NLRB is being talked about as part of the election campaign. No NLRB case is talked about more than Boeing.

In Boeing, the Company had a plant in Washington that had capacity.  Rather than using that capacity for new work, Boeing decided to build a new plant in South Carolina and do the work there.

A Boeing official talked about the risks in having a strike every 3 years as part of decision making process.  The NLRB seized upon that comment and sued Boeing for unlawful retaliation against the union for striking.

The comment by the Boeing official appears to have been take out of context.  Boeing has made clear that other factors, such as lower taxes and incentives from South Carolina, were key to its decision making process.

The law is clear that an employer cannot move work from one site to another to punish employees for exercising their right to strike.  In the Boeing case, there was no loss of work at the union plant.  It was simply a question of where to put the new work to best get it done.

Yet, the General Counsel issued a complaint against Boeing. What are the implications?

Consider the following example in health care.

A hospital has two campuses:  one union and one not.  Assume there have been strikes at the union campus.  During these strikes, there have  been struggles with the delivery of patient care.  Plus, independent of the strikes, the union facility is less productive based on objective criteria.

Assume further, the hospital has decided to build a new center to deal with pediatric cancer.  It chooses the non-union campus because it is more productive and it has had no issues with the delivery of patient care.

No work is lost at the union site.  And the union can try organize the non-union site.  But the NLRB’s “logic” in the Boeing case would suggest that the hospital may have acted unlawfully to the extent any concerns about patient care relate to potential interruptions due to a strike.

Is the NLRB suggesting that the union’s right to get new members (without any work) trumps the hospital’s right to minimize the risk to pediatric cancer patients by picking the location that is the most stable and productive?

The Boeing complaint is not only about management rights.  In health care, it can have life and death consequences.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS ESTABLISHING AN ATTORNEY CLIENT RELATIONSHIP OR AS APPLYING TO SPECIFIC FACTUAL SITUATIONS

Sisyphus Had It Easy

From www.weknownext.com/blog

Sisyphus Had It Easy

by Jonathan Segal on November 9, 2011

In Greek mythology, Sisyphus was a king punished by being compelled to roll an immense boulder up a hill, only to watch it roll back down. No matter what he did, Sisyphus could not get to the top of the hill.

We can all feel Sisyphus’ pain as HR and other executives. We are constantly rolling up against regulatory boulders, plaintiffs’ lawyers and labor unions marketed by the NLRB.

But Sisyphus had it easy in one respect. He did not have to worry about the FLSA.

We are in the middle of a wage and hour revolution. More specifically:

The number of FLSA cases filed per year has nearly quadrupled since the late 1990’s

DOL back wages collected in 2010: $175,652,665

Employees receiving back pay wages in 2010: 208,615

DOL concluded cases in 2010: 26,815

FLSA cases filed in district courts in 2010: 6,081

FLSA cases filed so far in district courts in 2011 so far are close to 5,000.

One of the most common allegations is that employees are required to work “off the clock” but are not paid. Indeed, it is often now referred to as wage theft.

Although only one area of exposure, it is a big one. And, it is one that can be addressed readily quickly and easily.

Here are five recommendations that will minimize your organization’s exposure in this area:

  1. Have a wage and hour policy that includes a statement that no manager, supervisor, etc. can require, encourage or even suggest that an employee work off the clock.
  2. Develop a complaint procedure for employees to report any circumstances in which they believe that they have been required, encouraged or even suggested to work off the clock (with appropriate assurances, such as non-retaliation).
  3. Educate your supervisors and managers on their need to contact HR if they have actual or constructive knowledge that an employee may have worked off the clock so that HR can talk with the employee and ensure that the employee is properly paid.
  4. Focus on “off hours” work, for example, limit use of PDAs or access to your e-mail and make sure that, when use is permitted, employees record and are paid for their time.
  5. Develop a mechanism for employees to report or record time they have worked but which may not be reflected on their hard copy or electronic time card or record (for example, an edit form for employees to add time that they have worked between shifts).

Remember, earlier this year, the U.S. Department of Labor announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. The DOL also has even developed and published an old fashion hard copy calendar for employees to use to record their time.

Want to trade roles with Sisyphus for a day?

This blog post should not be construed as legal advice, pertaining to specific factual situation or establishing an attorney-client relationship.

California Enacts 22 New Employment Laws

Governor Jerry Brown assured California’s position as one of the most regulated states for employers by signing 22 new employment laws earlier this month. Most of the laws will take effect on January 1, 2012. Some of the more significant of these new laws:

· Require that all new hires must be given a statement by the employer of their rate of pay, allowances that will be taken as part of the minimum wage (if any), the pay day, the name and address and telephone number of the employer and the name and contact information for the company’s workers’ compensation carrier. In addition, employers will be required to notify existing employees of any change to any of the information within seven days of the effective date of the change.

· Prohibit credit checks on applicants for employment unless the job for which they are applying is within specified categories, largely either required by some other law or within a position of trust.

· Redefine “gender” for purposes of California’s discrimination laws to include gender identity and gender expression.

· Make it unlawful for any individual to prevent or attempt to prevent the exercise of rights under the California Family Rights Act.

· Enhances penalties for the denial of insurance coverage to same-sex domestic partners if the coverage would have been provided to spouses in different-sex unions.

· Requires paid leave for employees who become organ donors (30 days per year) and for employees who become bone marrow donors (5 days per year).

None of the new laws adds as many complexities or will have as significant an effect as S.B. 459, however. This new law creates civil penalties of $5,000 to $15,000 per violation if a court or the California state enforcement agency concludes that an employer doing business in California has misclassified employees as independent contractors. If the finding is that the employer engaged in a pattern or practice of willfully misclassifying employees, the penalties increase to as much as $25,000 per violation.

In addition to the financial penalties, the law would require employers who are found to have misclassified workers to do the functional equivalent of a “perp walk-” posting on the company’s website (or, if the company has no website, by written notice to employees and the public) a notice that the employer had been found to have “committed a serious violation of the law.

Employers in every state have been struggling with understanding the definition of an independent contractor. Using independent contractors is substantially less expensive than having employees do the work. With employees come taxes, workers compensation, overtime wages, retirement plans and health/disability insurance. All of these can be avoided by using independent contracts. As a bonus, employers have less emotional attachment to independent contractors, making a reduction force less costly, both financially and emotionally.

Misclassifying an employee as an independent contractor, however, results in huge liability which not only will wipe out all cost savings but also result in penalties. Complicating the decisional process is that various government agencies, both state and federal, use different tests to determine whether a worker is an independent contractor or employee. Some agencies and courts have gone to the three factor test, while others continue to hang on to the IRS’s list of 22 factors.

California, in its new law, had the opportunity to bring some clarity to the issue, at least in that state. Unfortunately, the new statutory definition succeeds only to muddy the already opaque water by being not only imprecise but circular: willful misclassification “means avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.” Well, duh.

The best the California’s Division of Labor Standards Enforcement can do is say that the term “independent contractor” has no set definition and that the determination requires an examination of court decisions and guidelines from regulatory agencies.

Employers everywhere, not just in California, must be very careful when making a decision to classify a worker as an independent contractor because the stakes are so high and getting higher. The slake of class actions alleging violations of the wage and hour law now popular among plaintiff’s lawyers is spreading full force into the area of misclassification of workers.

Nowhere is the danger of private class, cooperative and representative lawsuits more extreme than in California because of that state’s Private Attorney Generals Act of 2004. Under that law, private citizens (“bounty hunters”) may obtain 25% of the penalties assessed by the state agency for raising labor code violations. As passed, S.B. 459 does not authorize private causes of action and it is not clearly covered by the Private Attorney Generals Act of 2004. However, the failure to include the misclassification of workers as one of the labor code violations subject to the Private Attorneys General Act of 2004 may have been a legislative oversight, which may soon be corrected either by the legislature itself or the courts. Without question, there will be plaintiffs’ lawyers who will try.

Also unknown is the probative effect of an employer’s entry into the current IRS voluntary settlement program. Under that relatively new program, an employer with workers which it suspects may be misclassified can avoid a significant part of the potential IRS back tax liability by agreeing to cure the difficulties and paying a small portion of the tax due. The new California law does not carve out special treatment for these employers and, as a result, plaintiff’s lawyers may attempt to use that voluntary act as, at least, an implied admission, if not a roadmap to an easy payday.

The California legislature also made it more difficult for employers to avoid liability for willful violations by asserting that they relied on the advice of an outside “expert.” Indeed, finding an expert in California willing to take the risk of providing such advice may be difficult. Under S.B. 459, anyone who is paid for an opinion that an individual is an independent contractor for the purpose of avoiding the costs attached to employment may be jointly and severally liable for the penalties assessed if the Division of Labor Standards Enforcement or a court concludes that the individuals were misclassified.

California has just become less friendly to employers…even more less friendly.

Profits Down? Your Risk Aversion May Be High

From www.weknownext.com:

Profits Down? Your Risk Aversion May Be High.

by Jonathan Segal on October 5, 2011

There has been an astronomic increase in employment litigation. The result is that there is almost an apoplectic fear of litigation. Indeed, because the cost of litigation can be so high, sometimes we try to avoid risk at all cost.

But we cannot avoid risk. It is not a question of risk avoidance, but rather risk selection.

In my experience, here are the top three mistakes that are sometimes made in managing risk and can result in buying one risk to avoid another.

  1. Failure to distinguish between what is illegal and what has legal implications. 

    Terminating an employee because she complained about harassment is illegal. Terminating an employee solely for poor performance but who also complained about harassment is not illegal but has legal implications.

    Of course, you can avoid the legal risk (i.e., retaliation) by not terminating the employee, even if her behavior clearly warrants it. But what is the message that you send your workforce? Complain about harassment and insure your job?

    Where something is unlawful, we cannot do it. But where the motivation is clearly lawful but there is risk even so, we need to consider the business and employee relations risks in calibrating how much legal risk to take.

  2. Failure to recognize when it is only a question of timing relative to inevitable risk taking

    There are times when it is clear that an employee is not going to cut it. But we know that the employee hangs out in plaintiffs’ bars.  So we keep giving employees warning in the hope that the employee will leave on his own.

    Deferring the inevitable does not always reduce the risk. Often it increases the risk by giving an employee time to make a protected complaint or disclosure so that the inevitable appears retaliatory.

    Plus, again, what are the financial costs of hanging on too long? How much money are you losing by keeping the substandard employee? Wouldn’t you be better off with a severance package and a stellar replacement than retaining mediocrity?

  3. Failure to consider the legal risks in avoiding legal risks

    In some cases, avoiding one legal risk buys another legal risk. In this regard, we cannot consider only employment risks in managing legal risks.

    For example, you are a health care provider and have an employee who falls asleep on the job. You know she is litigious. You don’t fire her to avoid an employment claim. She falls asleep again and a patient dies. Wrongful discharge or wrongful death? That is the question.

    Or, you have an employee who is posting information that the NLRB may consider protected. The employee also is posting information that the SEC may consider insider information. Want to tango with the NLRB or the SEC? The dance is inevitable; pick your partner.

Bottom line: we cannot avoid risk; we can only manage it. Sometimes the biggest risk of all is to think we are taking no risk at all.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

The Human and Economic Cost of Bullying in the Workplace

Last night’s show on bulling on CNN,  AC 360, was remarkable.  It involved bullying in the schools.

But it does not stop there. It continues in our workplaces.

Sometimes, it is unlawful; for example, if an employee is bullied because of his or her race or sex.

Sometimes, it is lawful, because it does not relate to a protected group.

For example, except for morbid obesity, weight is not protected in most jurisdictions. Yet, heavy people are bullied in school and experience bias in workplaces.

Another example: discrimination based on sexual orientation is still lawful in the majority of states.  So, in PA, except for a few counties, bullying based on sexual orientation is lawful too.

In all cases, bullying is hurtful not only to the victim but also to the workplace.

Bullies not only hurt their victims but also create a climate of fear in which the focus is less on the organization’s mission and more on self-preservation.

Bulling is particularly dangerous in health care.  It is inconsistent with a culture of safety where patients may become the victims too.

But how do you define bullying?   Where does pushing appropriately hard become inappropriate bullying?

Are there dangers in having a policy?  What if you don’t live up to what you promise?

Employers cannot ignore the issue. But we cannot prohibit any and all behavior that anyone might find intimidating or offensive.

The Supreme Court Justices once failed to define obscenity, instead saying they would know it when they saw it.  Not the clearest of guidance but perhaps the most honest answer possible.

The same is true of bullying.  There are dangers in defining it too distinctly.  But not as great as ignoring it.

Bullies are co-dependent.  They need victims to feed their self-esteem.

They will not derive the same satisfaction they need if bystanders don’t stand by.  To do nothing is to condone.

Employers should deal with bullying as part of harassment prevention training, making clear that, regardless of whether it is lawful, it is unacceptable.

Refraining is not enough; to date myself, if you are not part of the solution you are part of the problem.

This blog should not be construed as legal advice, as establishing an attorney-client relationship or as applying to specific factual situations.

You’re In Without Urine

A drug user is required to provide a urine specimen as part of an employer’s consistently-applied drug testing program. The individual claims that he or she cannot because he or she has “Shy Bladder Syndrome,” technically known as paruresis. Paruresis is an anxiety disorder as a result of which an individual cannot provide a urine specimen in public places or in close proximity to others.

Is the applicant or employee with paruresis entitled to a reasonable accommodation?  Under a recent EEOC informal opinion letter, the answer may be “yes.” http://www.eeoc.gov/eeoc/foia/letters/2011/ada_definition_disability.html

By way of background, under the ADA, an individual has a disability if he or she a physical or mental impairment that substantially limits one or more major life activity. Under the ADA as amended by the ADAAA,  it is substantially easier for an individual to meet this standard.

The ADAAA includes within the definition of major life activities major bodily functions, such as bladder functions. According to the EEOC’s “informal” opinion, it is possible that paruresis may be a disability for some under the ADA if the anxiety disorder substantially limits their bladder functions.

I have no doubt that some individuals have paruresis. I also have no doubt that some illegal drug users will argue that they have a bashful bladder to avoid detection of  their illegal drug use.

So how should employers respond to bashful bladders?

One option would be to offer assertiveness training so that every bladder can realize its full potential.

A second option (required for donors covered by DOT) would be to ask the MRO to arrange for a medical evaluation to determine if the failure is because of a legitimate medical reason. But this takes time and costs money and the delay may allow the donor who uses illegal drugs to avoid detection.

The third option would be to establish a protocol that, whenever an individual cannot provide a urine specimen, he or she must provide a hair specimen.  This option would not be available if a medical evaluation is required (for example, for donors covered by DOT) or if hair testing is prohibited by a state or local law (or a union contract).

I favor option 3. However, even with hair testing, there are legal issues that need to be considered. What if an individual has no body hair except pubic hair?  The employee’s bladder may be bashful but his or her lawyer won’t be if you go there.  Employers will need to think through how they will address this and other issues relating to hair testing.

Don’t be surprised if we soon hear about Bad Hair Day Syndrome: fear of providing hair specimens on bad hair days. I’ll put that one on the bottom of my list of worries.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP OR AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS

We Know Next

It is a great honor to have been asked by SHRM to blog for We Know Next.  To learn more about We Know Next, please check out www.weknownext.com

I also am pleased to include my first blog for We Know Next:  http://www.weknownext.com/blog/when-is-hr-consistency-foolish

I welcome ideas for future blogs in which the focus will be on what we can do–not what we can’t do.

Thanks

Jonathan

215-979-1869

DMi: Blog on Foolish Consistency and Documenting Discipline Seminar

Please see:  http://www.weknownext.com/blog/when-is-hr-consistency-foolish

Duane Morris Institute presents a seminar on Documenting Discipline

Tuesday, September 20, 2011 | 9:30 a.m. to 12:00 p.m.

Presented by: Jonathan Segal

 

Seminar Location:
Duane Morris LLP, 30 South 17th Street, Philadelphia, PA 19103

Credits: 2.0 PA CLE; 2.5 NJ CLE; 2.5 NY CLE; and 2.25 HRCI

For information and registration, please click here.

ABOUT THE SEMINAR

When it comes to discrimination, retaliation and other wrongful discharge claims, legal liability often turns on the documentation. But it’s not enough simply to tell managers to document, document, document. Poor documentation is as dangerous as no documentation. The key is not only what you say but also how and when you say it. This seminar focuses on the legal and human resource issues implicated in disciplinary documentation. In particular, this seminar focuses on the most common flaws of disciplinary documentation. Because these kinds of flaws are common to performance appraisals, Documenting Discipline will provide value with regard to the performance appraisal process. This 2-½-hour seminar is designed for human resource professionals, in-house counsel and senior managers.

Every Day May Be Labor Day At The NLRB But…

On this Labor Day, it is tempting to rail against the NLRB. The reality is that, at the NLRB, every day is labor day.

While employers have good reason to be concerned about the NLRB, employers cannot forget how important our employees are to our success.  As the New York Times accurately noted yesterday, without engaged employees,  an employer is less successful economically. Happier people do work harder!

Management plays a critical role in helping to create an environment in which employees feel good about their employer and can make a meaningful contribution. The failure of management to meet the reasonable expectations of employees may result in employees being less dedicated, looking at other places to work, bringing claims they otherwise would not bring or seeking the support of a union.

At a very minimum, management should:

1. Provide regular and sincere recognition and appreciation. I firmly believe that, in most workplaces, approximately 85% of the employees do a good job but we spend 85% of our time on the other 15%. We need to re-calibrate the balance as much as we reasonably can.

2. Treat employees consistently where the circumstances are the same or substantially similar. But fairness and consistency are not always the same and managers and supervisors need training on that issue. Sameness does not always equal fairness.

3. Maximize business and social inclusion.  We need to go beyond the legal imperative and harness the diverse talent that exists in our workplaces.

4. Avoid engaging in and respond proactively to abusive and demeaning behavior, whether or not unlawful.  Being an equal opportunity abuser hardly makes one an employer of choice.

5. Help employees solve workplace problems. Respond to those who raise them. Ask those who don’t. Some of your best employees will suffer in silence because they hear the incessant carping of a small few and don’t want to be seen as like them.

6. Provide honest and regular information about the business.  If we want our employees to be business partners, we must treat them as such.

7. Treat employees with dignity and respect.

These are but 7 of the 20 some expectations that I recommend that employers expect of their managers and supervisors.

The last may be the most important of all,  because it is assaults on dignity and respect that often provide the catalyst for union organizing, litigation and other adversarial situations.

Poor performers don’t deserve continued employment. But every employee deserves to be treated with dignity and respect from their first day to their last….employers who forget that are often reminded the hard way.

This blog should not be treated as legal advice, as pertaining to specific factual situations or establishing an attorney-client relationship.

Avoid Wage and Hour Tsunami Following Hurricane

Reminder of wage and hour rules:

1. As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed (unless an employee did not do any work for the company in the work week). However, you can require that an exempt employee use PTO during a day in which you close.

2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day.  If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you can require that he or she use PTO, if available, to cover the non-working time.  You also must pay him or her if he or she works from home.

3. No legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for  non-exempt employees who are paid under the fluctuating work week.

4. Further, under some state laws, such as in New Jersey, there are call-in requirements; that is, if an employee comes to work and is sent home, there is a minimum number of hours’ pay the employee must receive. Plus, there may be CBA obligations.

5. Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed. 

6. Also, if non-exempt employee works at home, you must pay for all time worked.  Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid.  Remember, break rules apply to working at home too.

7. Keep in mind state law may impose additional requirements.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

EEOC Attacks Attendance Control Policies

As you know,  the EEOC has been attacking maximum leave provisions in leave of absence policies for quite some time.  According to the EEOC, maximum leave provisions violate the ADA. See http://blogs.duanemorrisinstitute.com/jsegal/date/201101

Now, the EEOC is going after attendance control policies. Please see summary of recent $20 million EEOC settlement with Verizon for allegedly not excluding absences covered by the ADA from its no fault attendance control policy. See http://www.eeoc.gov/eeoc/newsroom/release/7-6-11a.cfm

Employers need to take a look at their attendance control policies and consider adding a specific exclusion for absences covered by the ADA and then reviewing each absence to make sure none for which points are awarded is covered by ADA.

Employers who do not have a no-fault point system but rather have general policies on absenteeism also need to be careful to exclude any absences potentially covered by the  ADA before concluding absenteeism is excessive.   The employer may wish to document what absences it has considered—and which it did not—so that the employer can demonstrate to the EEOC or a court that it did not consider “protected” absences.

While this blog focuses on the ADA, employers must be careful not to consider absences covered by the FMLA or state leave laws as well.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as pertaining to specific factual situations.

Seven Deadly Sins of Social Media

Please see link to article I wrote for Businessweek on practical guidance for executives, managers and supervisors on use of and responding to social media: http://www.businessweek.com/management/social-medias-seven-deadly-sins-08092011.html. Feel free to forward as appropriate.

This blog should not be construed as legal advice, as pertaining to specific factual siutations or as creating an attorney-client relationship.

Manage Stress; Save A Shelter Animal

Our jobs are stressful, to say the least. One way we can help ourselves is to help others.

The last 6 weeks before Labor Day is Vacation season for many of us. We need it.

For shelter animals, it is euthanasia season. More turn ins and fewer adoptions results in the loss of many healthy and loving animals.

Please adopt an older cat or dog today.  With so many kittens, cats as young as 9 months old are seen as too old by some and are not surviving.

Please call me if I can help you find a new member for your family.  I ask for those who can’t.  Please don’t wait.

Outside the Philadelphia Box: Limited Exemption

On April 13, 2011, the Mayor of the City of Philadelphia signed an Ordinance entitled “Fair Criminal Record Screening Standards.” The Philadelphia Ordinance, which goes into effect on July 13, 2011, applies to private employers of 10 or more employees in the City of Philadelphia.  The Philadelphia Ordinance makes it unlawful for an employer to make any inquiry about, to take any adverse action against any person on the basis of or to require any person to disclose or reveal any arrest or criminal accusation, not then pending, which did not result in a conviction. The Ordinance goes a step further and limits the ability of an employer to ask about or consider criminal convictions as part of the early stages of the application process.  Employers cannot ask about criminal convictions on the application process or during the initial interview. It is only after the initial interview that employers may ask about criminal convictions.  The Ordinance provides limited exemptions, including instances in which “inquiries or adverse actions otherwise prohibited by the Ordinance are specifically authorized by other applicable law.” The scope of this exemption is far from clear.  However, there are three (3) potential ways that one could try to interpret the exemption:

1. If an employer is required to conduct criminal background checks, it is exempt from the Ordinance.

 2. If an applicant is applying for a job that is subject to a criminal background check required by another law, he or she is exempt from the Ordinance.

3. If an applicant is applying for a job that is subject to a criminal background check  required by another law, he or she is exempt from the Ordinance but only with regard to those convictions for which the employer must check.

Based on the language of the exemption, Option 1 is not a viable interpretation.  The exemption is not set forth as an exception to the definition of covered employers and clearly speaks to specific inquiries and actions. For similar reasons, Option 2 probably is not a viable interpretation, either. The exemption speaks to inquires and actions and not more generally to applicants to which they relate. The most probable interpretation is Option 3.  That is, the exemption most probably must be interpreted as co-extensive with any legal mandate that may exist.  This interpretation precludes the kind of uniformity and administrative ease that otherwise would be desirable. For example, Pennsylvania Act 73 requires that employers of prospective employees “applying to engage in occupations with a significant likelihood of regular contact with children, in the form of care, guidance, supervision or training,” must obtain from such prospective employees a criminal record history (federal and state).  More specifically, Act 73 provides that covered employers: [S]hall require applicants to submit with their applications the following information obtained within the preceding one-year period:

(1)        Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal history record information), a report of criminal history record information from the Pennsylvania State Police or a statement from the Pennsylvania State Police that the State Police central repository contains no such information relating to that person.  The criminal history record information shall be limited to that which is disseminated pursuant to 18 Pa.C.S. § 9121(b)(2) (relating to general regulations).

(2)        * * *

(3)        A report of Federal criminal history record information.

23 Pa. C.S.A. § 6344(b).

Accordingly, hospitals (as well as schools, day care centers and other employers where employees have regular contact with children) in Philadelphia most probably can ask a broad question about criminal convictions as part of their initial application but only as to those applicants who are likely to have a significant likelihood of regular contact with children, if hired.  Whether the prospective employee will likely have regular contact with children will depend on the circumstances, including the services provided at the hospital or other employer and the duties of the prospective employee. Another example involves the Federal Deposit Insurance Act, which applies to banks and certain other financial institutions.  Section 19 of the Act prohibits any person who has been convicted of any criminal offense involving dishonesty or a breach of trust or money laundering, or has agreed to enter into a pretrial diversion or similar program in connection with a prosecution, from becoming or continuing as an institution-affiliated party; owning or controlling, directly or indirectly, an insured institution; or otherwise participating, directly or indirectly, in the conduct of the affairs of an insured institution without the prior written consent of the FDIC.  The criminal offenses covered by the Act are specifically defined by the Act. Employers covered the Federal Deposit Insurance Act most probably must limit their inquiry on their application (before the first interview) to crimes involving dishonesty, breach of trust and money-laundering.  Of course, after the first interview, nothing in the City ordinance prohibits the employer from asking a broader question about other criminal convictions, such as murder and rape. The bottom line is that the exemption to the prohibitions in the Ban the Box Ordinance is narrowly worded so that, even where it applies, it most cases, it most probably precludes a covered employer from having a uniform and broad question about criminal convictions on its initial application for employment.

This blog shall not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

The DOL and Smartphones: Be Smart and Take the Offensive

Last week, the DOL issued guidance on how employees can use smartphones to keep track of their time (which could aid employees in investigations and or lawsuits).  You have to read it yourself to believe it:

The U.S. Department of Labor announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed.  Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers.  This new technology is significant because, instead of relying on their employers’ records, workers now can keep their own records.  This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.

The free app is currently compatible with the iPhone and iPod Touch.  The Labor Department will explore updates that could enable similar versions for other smartphone platforms, such as Android and BlackBerry, and other pay features not currently provided for, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.

For workers without a smartphone, the Wage and Hour Division has a printable work hours calendar in English and Spanish to track rate of pay, work start and stop times, and arrival and departure times.  The calendar also includes easy-to-understand information about workers’ rights and how to file a wage violation complaint.

The DOL also has proposed an old fashion hard copy calendar for employees to use to record their time.  See http://www.dol.gov/whd/FLSAEmployeeCard/calendarR5Web.pdfse.

The DOL also includes guidance on what constitutes time worked.  For example, the DOL states: “Generally, you should know that your employer must keep records of all wages paid to you and of all hours you worked, no matter where the work is done.”

Some have interpreted the recent DOL guidance as not simply an advisory on the law but rather as encouraging employees to file wage and hour complaints and providing them with exhibits to do so.  Regardless of the DOL’s intent, the effect likely will be to increase the number of claims by employees for hours allegedly worked but not paid.

We already are in the middle of a wage and hour pandemic.  Consider the following:

·        The number of FLSA cases filed per year has nearly quadrupled since the late 1990’s.

·        The number of FLSA cases filed in federal district courts has more than tripled in the    past few years, from 1,920 cases in 2000 to 6,754 cases in 2006.

·        DOL back wages collected in 2010: $175,652,665

·        Employees receiving back pay wages in 2010: 208,615

·        DOL concluded cases in 2010: 26,815

·        FLSA cases filed in district courts in 2010: 6,081

·        FLSA cases filed so far in district courts in 2011:  2,278 (as of May 16).

Expect the recent actions of the  DOL  to accelerate the trend.

While most employees are honest, it would be naïve to assume all are.  Dishonest employees may use the new DOL tools to claim that they worked hours that they did not.

It is absolutely critical that employers have complete and accurate records of all time worked by employees and that employers pay employees for such time.  If an employee works time that is unauthorized, pay him or her for the work but then counsel/discipline him or her for doing what was not authorized.

In particular, just as the DOL has encouraged employees to do, employers need to address work “no matter where it is done.” More specifically, employers should make clear whether and when employees are permitted to work remotely and, if so, how they should record their time so that they can be properly paid.

Moreover, employers need to make sure that employees know that they cannot do any work off the clock and whom they should contact if any manager or supervisor requires or even suggests that they work off the clock.  Managers need guidance too on the need to contact HR or Payroll if they know or have reason to believe an employee is working of the clock.

If you are not sure whether you should review your wage and hour policies, practices and communications to make sure they are complete and compliant, please re-read this blog.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

Philadelphia’s Ban the Box Plus Federal and State Laws Too

On April 13, 2011, the Mayor of the City of Philadelphia signed an Ordinance entitled “Fair Criminal Record Screening Standards” which establishes requirements for the screening of criminal records by certain employers within the City of Philadelphia and limits an employer’s ability to consider arrests and convictions of job applicants.  The stated purpose of the legislation is to “give the individual with a criminal record an opportunity to be judged on his or her own merit during the submission of the application and at least until the completion of an interview.”

The Philadelphia Ordinance applies to city agencies and private employers of 10 or more people (employees) in the City of Philadelphia. However, even if an employer is covered by the Ordinance, it applies only to applicants who are applying for jobs in the City of Philadelphia.

The Ordinance makes it unlawful for an employer to make any inquiry about, to take any adverse action against any person on the basis of or to require any person to disclose or reveal any arrest or criminal accusation, not then pending, which did not result in a conviction.

The Ordinance goes a step further and limits the ability of an employer to consider even criminal convictions as part of the early stages of the application process.  The Philadelphia Ordinance makes it unlawful for employers in the City of Philadelphia to make any inquiry regarding or to require any person to disclose or reveal any criminal convictions during the application process, which begins when an applicant inquires about employment and ends when an employer has accepted an employment application.

What’s more, the employer cannot make an inquiry regarding or require a person to disclose or reveal any criminal convictions before and during the first interview either.  If the applicant voluntarily discloses any information regarding his or her criminal convictions at the interview, the employer may discuss the criminal conviction disclosed by the applicant.

The Ordinance becomes effective ninety days after it was signed into law, in other words, on July 13, 2011.

Violations of the Ordinance will carry a fine of up to $2,000 per violation.  Further, it is inevitable that violations of the Ordinance will be argued as the basis for wrongful failure to hire claims.

What This Means For Employers

Employers in Philadelphia will need to remove from their Applications for Employment any questions about criminal convictions (except where required by another law, in which case a separate application with an appropriate question consistent with the legal requirement must be developed for such applicants only).

Employers in Philadelphia who wish to inquire about criminal convictions will need to develop a criminal conviction inquiry form (focusing only on convictions) to give to applicants who have completed their first interview and to whom they wish to extend either a second interview or a job offer.

In this regard, employers should be careful to avoid the temptation to give the criminal conviction form to all applicants immediately following their initial interview to make things easier administratively. Why obtain information about applicants in whom you have no interest? Applicant may assume–and argue–the information was the basis for adverse action (even though it was not). At  a minimum, there is the cost of defense.

Philadelphia employers must consider not only the Fair Criminal Record Screening Standards Ordinance, but also the Pennsylvania Dissemination of Criminal History Records Information Act, which restricts when Pennsylvania employers can consider criminal records and includes notice requirements.

Under the Pennsylvania Dissemination of Criminal History Records Information Act, employers can consider felony and misdemeanor convictions only if they relate to the applicant’s suitability for the job for which he or she has applied.   Further,  the employer may be precluded absolutely from considering arrest records (which have not resulted in convictions) as part of the pre-employment process.

Further, both the EEOC and PHRC have released guidance which states that disqualifying applicants due to arrest or conviction records may have a disparate impact on certain racial and ethnic groups, and therefore, have suggested similar (but not identical) factors which should be considered before making any adverse employment decision upon a criminal record.

Employers need to be particularly careful of per se rules (for example, individuals with felonies are disqualified from employment for all jobs).  These rules maximize consistency but also may serve as the basis for class actions alleging disparate impact.

According to the National Employment Law Project, at least five (5) major civil rights lawsuits were filed against employers for blanket prohibtions relating to criminal convictions.

If you have questions about how the various laws affect criminal conviction checks, please feel free to contact me at 215-979-1869 or jsegal@duanemorris.com.

This blog should not be construed as legal advice or as pertaining to specific factual situations.

The Unintended Adverse Consequences of the ADA

When I was in college, I had an incredible professor who used to talk about the “unanticipated evil consequences of virtuous social action.” I had no idea what he meant but he sounded so regal that I wrote down what he said every time until it become indelibly etched in my mind.

I heard my professor’s voice when I read the EEOC’s new regulations on the ADA as amended. While the ADA is indeed virtuous social action, it is now even riskier than before to try to help an employee whom you suspect has a physical or mental problem unless he or she asks for help first and here’s why.

By way of background,  a disability is a physical or mental impairment that substantially limits one or more “major life activities.”  An employer cannot discriminate on the basis of: (i) current disability; (ii) past disability or (iii) perceived (regarded as) disability.

Perhaps the biggest expansion of the definition of disability relates to the “regarded as” disability prong.  More specifically, the law now provides that an individual may be regarded as having a disability if he or she is subject to adverse action because of an actual or perceived physical or mental impairment, regardless of whether the impairment limits or is perceived to limit a major life activity.

This is a very easy standard to meet. Indeed, in its new regulation, the EEOC all but invites individuals to bring claims under the “regarded as” prong without having to prove that the individual actually has or had an actual disability as defined by the ADA. And, here’s where the  unintended adverse consequences come into play.

Assume an employee’s performance is declining and you see what you believe to be is clinical depression based on personal experience or exposure.  Ask the person if they are depressed and their depression may lift when they realize that they now may have a viable “regarded as” disability claim if they subsequently are subject to an adverse employment action. The well-intended question creates an issue of fact for the jury as to what was the employer’s true motivation for the adverse action.

Employers need to train their managers to focus on performance or behavioral deficiencies without inquiring or speculating as to whether there is a physical or mental cause. This counsel is particularly important for health care and social service employers whose managers “know” that, at times, the workplace issue is but a symptom of some underlying physical or mental problem.

What should the manager do if the employee responds to counseling, discipline or an evaluation by disclosing a physical or mental accommodation? Stay tuned for my next blog!

This blog should not be construed as legal advice or as pertaining to specific factual situations.

The EEOC’s Inconsistency on Consistency?

In terms of avoiding discrimination claims, we all have heard (and sometimes preached) the importance of consistency.  Treat people the same and you minimize the risk of being sued for discrimination (unless the employee argues they were not similarly situated so that treating them similarly was discriminatory).

One way we can maximize consistency is by having clear rules.  Clear rules remove the discretion (and sometimes the thinking) that can create the apparent inconsistency that may serve as the fodder for individual discrimination rules.

But per se rules also can create something else:  class actions.  Indeed, the EEOC  is attacking per se rules as  disparate treatment or creating adverse impact in numerous settings.  Here are but two examples:

Some employers with leave of absence policies terminate employees when they reach a certain number of weeks’ leave.  This promotes consistency but the EEOC sees “rigidity” and “inflexibility” and demands that employers determine whether additional leave may be a reasonable accommodation under the circumstances.  Of course, this individualized determination will result in apparent inconsistencies that will invite individual discrimination claims.

Some employers have per se bars on hiring candidates with credit scores below a certain number. Again, the consistency avoids individual discrimination claims but the EEOC may attack, claiming adverse impact based on race or ethnicity, demanding effectively that the employer take a more holistic evaluation (as required by some state laws).  But, again, a holistic approach will result in more individual discrimination claims based on apparent inconsistencies.

The bottom line:  When we are inconsistent, we may be accused of discrimination. When we are consistent, we may be accused of being rigid, inflexible or discriminatory.

Ralph Waldo Emerson once wrote, “foolish consistency is the hobgoblin of a little mind.”  We can update Emerson by saying consistent consistency is the hobgoblin of an uninformed mind.

We cannot avoid risk. We can only manage it.

In a very real sense, in this litigious society, we need to pick our plaintiff.  So we need to replace the mantra “consistency, consistency, consistency” with “think, think, think.”

This blog should not be construed as legal advice or as pertaining to specific factual situations.

PA Act 102: Prohibition On Mandatory Overtime Covers More Than FLSA Overtime

Pennsylvania Act 102 covers health care providers (broadly defined) in Pennsylvania.  It prohibits covered employers from mandating that covered employees work “overtime” except under certain limited circumstances.

Generally speaking, covered employees include employees directly involved in direct patient care and other clinical services.  Employees not covered by Act 102 include, but are not limited to,  physicians, physician assistants and patient care/clinical supervisors who are paid on a salaried (but not hourly) basis.

A common area of misunderstanding is what is meant by mandatory overtime under Act 102.  The definition of mandatory overtime under Act 102 is not based on the FLSA.  In other words, it does not mean work in excess of 40 hours in a work week. Instead, Act 102 defines mandatory overtime to mean work in excess of the employee’s “agreed to, predetermined, and regularly scheduled daily work shift.”

For example, assume a covered employee works three 10-hours shifts as agreed to upon hire.  Assume further that the covered employee’s replacement is late so his employer wants him to work additional time until his replacement arrives.

This additional time, in most circumstances, would constitute overtime under Act 102, even thought it would not result in the employee’s working overtime in the work week as defined by the FLSA.  The employee could agree to work the “overtime” voluntarily or the employer could mandate that the employee work the “overtime” involuntarily if one of the narrow exceptions to mandatory overtime were to apply (for example, unexpected absences, discovered at or before the commencement of a scheduled shift, which could not be prudently planned for by an employer and which would significantly affect patient safety.)

The bottom line is that, even if a health care provider that does not mandate overtime as defined by the FLSA, the health care provider may be covered by Act 102 if it requires that a covered employee remain beyond her or his agreed to, predetermined and regularly scheduled shift.  This is all but inevitable in most health care institutions.

Health care providers who have only voluntary overtime in the FLSA sense need to take a second look at Act 102 and develop, if not a policy, then at least an internal protocol to comply with it.

Three (3) final notes:

  1. If employee works Act 102 overtime, that does not translate into duty to pay overtime under FLSA. Generally, an employee in Pennsylvania  is eligible for overtime under the FLSA only if he or she works in excess of 40 hours in a work week
  2. Rather than paying overtime after 40 hours in a work week, some employers follow the federal 8 and 80 overtime rules.  Whether this alternative manner of computing overtime is available in Pennsylvania  is unclear and one Philadelphia court has said it is not an option for Pennsylvania employers.  While the Philadelphia decision is binding only in Philadelphia, lawyers in other counties may rely upon the decision to challenge 8 and 80 overtime in such counties.
  3. Many states other than Pennsylvania, such as New Jersey, have rules that restrict mandatory overtime in health care. In most of these states, like Pennsylvania, overtime as defined  by the state law differs from overtime under the FLSA.

This blog should not be construed as legal advice or as pertaining to specific factual situations.

You Are Covered by GINA Even if You Don’t Elicit Genetic Information

The EEOC’s final regulations under GINA take a broad and expansive view of the general prohibition on seeking genetic information.  For instance, the regulations make clear that an employer may violate GINA without a specific intent to acquire genetic information.

However, there is an exception to the general prohibition on seeking genetic information that is applicable to lawful requests by employers for medical information sought in the context of requested leaves and accommodations.  But this exception applies only if the employer affirmatively informs both employees and their healthcare providers from whom such information is sought that the employer is not seeking genetic information in response to its request for medical information.

The EEOC’s final regulations include suggested “safe-harbor” language to accompany or include on any FMLA (or related) medical certification forms in which a lawful request for medical information is made.  The purpose of the safe-harbor language is to inform employees and health care providers that the employer is not seeking, and neither the employee nor the health care provider should provide, any genetic information.

By including this safe-harbor language in any such requests for medical information, the employer is not liable under GINA if the employer is then (inadvertently) provided with genetic information in response to its request.  Of course, the safe harbor language does not insolate the employer from liability if the employer subsequently uses improperly the genetic information that was inadvertently disclosed to it.

The suggested safe-harbor language contained in the EEOC regulations is as follows:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law.  To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.  ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Employers will want to review their LOA and accommodation processes to make sure this language is included in all requests for medical information.

This blog should not be construed as legal advice or as pertaining to specific factual situations.

EEOC Continues Its Assault on Automatic Termination Provisions in LOA Policies

Last year, a federal district court in Illinois approved a settlement in the amount of $6.2 million between the EEOC and Sears Roebuck & Co.  The EEOC had brought a class action against Sears Roebuck & Co. claiming that it had violated the ADA by having an inflexible policy of terminating injured employees who had exhausted their workers’ compensation leaves rather than seeking ways to return them to work.  As part of the consent decree, Sears agreed that, prior to terminating an employee for exhausting their leave requirements, Sears would contact the employee to provide them with the opportunity to request potential accommodations, including possibly additional leave, to enable them to return to work. See http://www.eeoc.gov/ for EEOC’s discussion of the Sears’ settlement.Since then, both the EEOC  and private plaintiffs have filed a salvo of class actions, alleging that the following types of policies/practices violate the ADA:

1. Automatic termination of employment upon expiration of FMLA

2. Automatic termination of employment upon expiration of STD benefits

3. Automatic termination of employment upon expiration of fixed medical leave beyond FMLA–for example, upon 26 weeks of leave.

Just this month, the EEOC settled another automatic termination case with a group of supermarkets for $3.2 million. t is the view of the EEOC that, rather than a rigid ‘inflexible’ automatic termination rule, there should be an interactive dialogue initiated by the employer about whether  additional leave is a reasonable accommodation under the circumstances. The EEOC’s position does not automatically mean that the employee must be given additional leave in each of circumstances set forth above.  It means only that an individualized determination must be made. The same analysis arguably would apply to depriving employees of leave who do not qualify for FMLA. Many companies have medical leave policies independent of the FMLA with minimum service requirements, for example, 6 months. The EEOC’s analysis with regard to maximum leave provisions arguably applies equally to minimum service requirements. To avoid the time and expense of litigation, we recommend that employers revisit their FMLA and other leave policies and consider avoiding the kind of per se minimum and maximum requirements that invite class attack.  The result of individualized determinations may be some apparent inconsistencies that could result in individual discrimination claims but that risk must be balanced against the larger class action risk that goes with consistency flowing from per se rules. It’s risk selection, not risk avoidance. Please let us know if we can help with balancing these competing risks.

Pardon the formality, but this blog should not be construed as legal advice or as pertaining to specific factual situations.