Category Archives: General

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.

 

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

General

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

General, ,

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.