All posts by Jonathan A. Segal

Jonathan A. Segal

About Jonathan A. Segal

Jonathan’s preventive and corrective approach to employment/HR issues includes counseling, policies, training, agreements and audits. Areas of substantive focus include, for example: gender equality, wage and hour compliance, social media and employee engagement. When Jonathan isn’t counseling employers or dedicating his time to SHRM and the HR community, he can be found volunteering his time and efforts to animal rescue. Jonathan is also mad about Mad Men, writing and speaking on the employment issues arising out of the MadMen Era! Follow Jonathan on Twitter @Jonathan_HR_Law.

Sheryl Sandberg, Lean In 2.0 and Corporate Gender Bias

General, ,

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

General, , ,

I am pleased to share 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?

How to Prevent Presidential Debates From Becoming Disruptive Workplace Debates

In The News, ,

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

In The News, , , ,

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.

6 Ways to Lawfully Embrace Social Recruiting

General, , , ,

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

General, , , ,

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

General, In The News

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

General, In The News, , ,

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

General, , ,

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

General, , , ,

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.