Monthly Archives: May 2016

Mad Men: Where Are Our Friends One Year Later?

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I am pleased to share my latest SHRM blog post regarding what “Mad Men” can teach us about life and career: http://blog.shrm.org/blog/a-year-later-what-can-mad-men-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

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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

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I am pleased to share my latest blog for Entrepreneur: https://www.entrepreneur.com/article/276004

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

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I am pleased to share my latest post for the SHRM blog:  http://blog.shrm.org/blog/the-often-unacknowledged-bias-against-asian-americans

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

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I am pleased to share my latest post from the SHRM blog in honor 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 Days (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

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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: https://www.entrepreneur.com/article/274623

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.