Monthly Archives: June 2016

I Wish

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

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

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

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

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

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

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

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

2. I Wish I Spent More Time with Strong Workers

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

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

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

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

3. I Wish I Spent Less Time On Compliance.

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

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

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

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

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

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

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

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

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

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

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

5. I Wish I Could Have More Fun

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

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

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

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

EEOC Commissioners Feldblum’s and Lipnic’s Clarion Call to Prevent and Stop Harassment

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I am pleased to share my latest post to the SHRM blog regarding the EEOC’s report on the prevention of workplace harassment.

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 today (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

General

Below, is my latest post to 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?

General,

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

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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

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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

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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, for Fanilows.

We can’t smile without you unless you are at #SHRM16. So we hope to see you there! Annual.shrm.org.