Category Archives: General

Lean Out?

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I am please to share with you my latest SHRM blog post.

Sometimes clients ask me relative to gender:

1.  Would it be gender discrimination if we do X?

2.  Does the law require that we do Y?

Of course, we need to start with the legal imperative.  But, as HR professionals, we know we must transcend the legal imperative and focus on the business necessity (and moral obligation) to ensure gender equality.

For example, some subtle harassment may not be severe or pervasive enough to rise to the level of actionable harassment.  But it very well may create a place where women don’t want to work so they take their talent and contacts to a competitor.

Another example:  the law generally does not mandate that employers provide flexibility to help employees with work-life management.  But rigid employers will lose talented women (and men) to employers who get that flexibility and accountability are not inconsistent if managed correctly.

To paraphrase Sheryl Sandberg’s message in Lean In, organizations cannot survive, let alone thrive, if they exclude half of the pool of talent.  So, HR professionals lean in hard on the business case for gender equality or you may find successful women and women of promise “leaning out” rather than “leaning in.”

Bye, Bye, Bad Precedent

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I am please to share below my most recent blog for SHRM:

As we all know, in EEO termination claims, how we treat the “comparators” is critical. Two (2) key questions:

1. Did you let anyone else go for a same or similar reason?

2. Did you not let someone else go even though they had engaged in same or similar conduct?

What do you do if you have an inconsistent practice historically?

If you take a hard line, you may get an EEO claim. You are treated more harshly than X because of my [insert protected group or protected activity].

If you play it safe and a avoid hard line, you run the business risk by making bad precedent a consistent policy.

The beginning of a New Year is a great time to minimize the risk of bad precedent.

Prepare a document now stating that, regardless of what may have been the practice in the past, effective January 1, 2016, you will do X consistently.  You may even want to communicate something to that effect to the workforce (but without directly stating that there may have been prior inconsistencies).

What is the benefit?  You can show you have decided how you will handle the situation prior to and independent of knowing who next engages in the conduct at issue. If an employee is fired and brings a discrimination claim and uses pre-2016 comparators, you can defend on ground that the difference is not age, sex, race, etc., but rather the year in which the infraction occurred.

This does not eliminate the legal risk.  But it should minimize it materially. And the legal risk that remains must be balanced against the business risk of tolerating substandard conduct to avoid any legal risk.

Almost all predict that 2016 is going to be a difficult year. To meet your business needs, you will need agility without being bogged down by bad precedent.

Of course, it is more complicated with unions. You may need to negotiate with the  union. At a minimum, you always should provide the union with notice.

Bad precedent is, well, bad. Now is an ideal time to start making good precedent. Happy New Year.

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

How Philadelphia’s New ‘Ban the Box’ Law May Hurt Employers and Employees

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I am please to share below my blog for Philadelphia Business Journal. 

“Ban the Box” initiatives are hot and likely to get even hotter. Indeed, for employers in Philadelphia, the law just did.

By way of background, “Ban the Box” initiatives are state laws or local ordinances that restrict when employers can ask about criminal convictions. The box that is banned is the answer to the question: have you been convicted of a crime…..”

The policy considerations behind these initiatives is quite understandable. African Americans and, to a lesser degree, Latino Americans, are more likely than white Americans to have criminal convictions. It is fair to assume that most employers do not smile with glee when they see an affirmative answer to the application question about criminal convictions.

So asking the question up front may have a disproportionately hard effect on such minority groups. Conversely, if the question is removed from the application, the hope is that more applicants in these communities at least will be interviewed and have an opportunity to show what they can bring to the workplace before the employer learns of any convictions that may exist.

In 2011, Mayor Nutter signed into law an ordinance (that went into effect in 2012) that required employers to wait until after the first interview to ask questions on criminal convictions or conduct background checks with regard to same. It was, in my view, a reasonable balancing of the various interests.

This week, Mayor Nutter signed into law a new ordinance (that will go into effect in 2016, 90 days after signing) that will make the ban-the-box ordinance on the books even tighter. Employers will not be able to ask about criminal convictions (or conduct background checks with regard to same) until after a conditional offer of employment has been extended.

Plus, the new law will apply to all employers, even those with only 1 employee. The current law applies only to employers of 10 or more employees.

How does this play out in the real world? I think almost all reasonable people would agree that some convictions legitimately should result in disqualification of an applicant from employment for a particular job, such as:

1. An applicant who was convicted of embezzlement in the last 7 years applies to be a controller.

2. An applicant who was convicted of rape in the last 7 years applies for a security job in a hotel where he will have unrestricted access to guest rooms.

Under the new law, the employer won’t be permitted to find out about the (what should be) disqualifying conviction until the last moment in the application process, that is, after a conditional offer has been extended.

That means the employer will have wasted scarce time and money to get to the conditional offer stage where the process should have been cut off earlier. Further, by this time, qualified applicants may have found jobs elsewhere and now the employer is back to square one.

In addition to this burden, there is also now greater legal risk. While the current law does not specify the factors that an employer must consider in evaluating a conviction, the new law requires that employers make an individualized assessment considering factors such as:

1. The nature of the offense.

2. The time that has passed since the offense.

3. The nature of the job sought.

4. The applicant’s employment history before and after the offense and any period of incarceration.

5. Any character or employment references provided by the applicant.

6. Any evidence of the applicant’s rehabilitation since the conviction.

These factors are very similar to the factors that the EEOC recommended in 2012 that employers consider in making individualized assessments to minimize their exposure to adverse impact claims. But when it comes to the EEOC, we are talking about guidance; in Philadelphia, we are talking about legal mandate.

Plus, the EEOC recognizes that there may be “targeted exclusions” (narrowly tailored) for certain positions, that is, a per se rule. No comparable employer right appears to exist under the Philadelphia ordinance as amended.

So let’s go back to the rapist applying for a security position. He could argue that his references, job history and other factors were not given sufficient weight by the employer. That may be enough to get to a jury. And that means the employer will have to invest but more time and money.

The public policy issue at hand is very important. But, in my view, the new law goes too far, and I fear may be but another reason (think increased sales taxes, too) why entrepreneurs will look outside of Philadelphia to start their business dreams. And that is not good for racial and ethnic minorities who live in our City.

This may be but another example, as one of my best professors often said, of the unanticipated adverse consequences of virtuous social action. Except that the result can be anticipated.

Note: This article should not be construed as legal advice or as pertaining to specific factual situations.