Category Archives: In The News

Men Must Do More to End Harassment

But again we have been rocked by explosive allegations of sexual harassment and sexual assault. In the case of Harvey Weinstein, there are now more than 30 women who have stepped forward. Weinstein admits to bad behavior but claims it was all consensual. From what I have read, this is not a good defense, even for a science fiction movie.

Weinstein is far from the only predator in Hollywood, and Hollywood is just a symptom of the problem. The casting couch can affect who gets plum assignments, leads, contacts, etc. in any industry. Few men with power would ever consider, let alone engage in, the kind of conduct engaged in by Weinstein and others but they must do more than just refrain from the indefensible. With power, men have the opportunity, indeed the obligation, to create cultures where harassment does not flourish. So what do we do?

1. Stand up in the moment.
You don’t need to have a daughter to stand up. You just need a conscience and a spine. So speak up if you see or hear bad behavior. To be silent is to condone. Yes, the worst behaviors are very often private but sometimes they are accompanied by less serious but still bad public behavior. For example, don’t laugh at the sexist jokes. Instead, make clear they are offensive to you and then take corrective action.

The less serious public behaviors may be but the tip of the iceberg. Where appropriate, engage a third party to see if there is more than meets the eye. Climate surveys by skilled professionals can uncover what has not been reported without creating claims where none may exist.

2. Don’t wait for the direct complaint.
The victims of harassment frequently are embarassed or feel unwarranted shame. Some women won’t vocalize their discomfort but instead avoid the harasser or become uncomfortable when his name is mentioned. Observe closely for, and listen carefully to, signals that something may be wrong.

There won’t always be signals. But where there are warning signs, think about how to offer your help in a way that respects the recipient and does not create an issue where there may not be one. This can and has been done successfully.
3. Create additional reporting vehicles.
Fear of retaliation is a great inhibitor of timely reporting. So you may want to take a look at your company’s policies and at least consider having a procedure by which employees can report complaints externally, even anonymously.

Not every complaint is true and that applies to anonymous complaints, too. But every complaint should be taken seriously, and I have been involved in matters where the ability to report externally and anonymously has led to the facts that resulted in the unmasking of a serial harasser. So consider the option.

4. Hold other leaders accountable.
Harassers sometimes generate big bucks and that is why individuals sometimes cover up for, and even truckle up to, them. You need to cross their bridge to get meaningful work and the money that goes with it. Make clear to other leaders that you expect them not only to refrain from harassing behavior (severe or subtle) but also to report to a designated person or entity complaints or potential problems which they see, hear or of which they otherwise become aware. Ostriches don’t make good leaders.

As with all expectations, reward those who live up to them and punish those who don’t. Your organization is only as strong as its reputation and it can be destroyed if leaders are passive bystanders.

5. Model what you expect.
Most of all, men in power need to be good role models. There is nothing cool about demeaning women. The abuse is both powerful and pathetic. There is no defense to the indefensible. Sexual addiction is no more a defense to harassment than alcoholism is to driving drunk.

Speaking of alcohol, it is a major risk factor. Some cultures celebrate alcohol and such alcohol-centric cultures take away any slim inhibitors that otherwise might exist. Bottom line: it’s on men. Any questions, pal?

This column was originally published on Entrepreneur.com on 10/20/17.

The Role of HR in Smashing Harassment

Please read my latest post to The SHRM Blog on the importance of HR in stopping harassment.

I have been thinking a lot about Harvey Weinstein and other high-profile cases of serial sexual harassment. These cases are extraordinarily disturbing, to say the very least.

There are some who have suggested that the Weinstein nightmare is simply a Hollywood problem, dismissing it as nothing more than the age old “Hollywood casting couch.”  How patently wrong they are.

Hollywood needs to clean up its act, but it is not just Hollywood. What happens in Hollywood is but a symptom of a much broader societal problem.

Predatory sexual behavior by men with power exists in every industry. Of course, women can engage in harassment, too, but I am not aware of any women who have exploited their power to harass men or women in the way Weinstein and other men have done.

This is not to suggest that all men with power abuse it in such a heinous way. But leaders in general and men in particular must do more than avoid what is wrong, and behavior is wrong long before it rises to the level of what has been reported in the high-profile cases. By their words and their actions, leaders must make the organization’s anti-harassment policy a true reflection of corporate culture.

HR plays a critical role in this battle. Publicly, HR professionals must stand up to harassment and implement holistic programs to prevent it from occurring. But not all preventive efforts will be successful.

When bad behavior happens, there must be consequences. More quietly, HR has and will continue to play a key role in helping to remove from workplaces those who abuse their power and assault the dignity of others.

On social media, I have seen some ask whether HR is protecting the employer or its employees. The answer is both.

HR must protect employees and, in doing so, it protects the business from legal and reputational risk. There is a reason that the “H” in HR stands for human.

Recent events do not create a new issue for HR to tackle. The best HR professionals are already all over it.

But HR has an opportunity, indeed an obligation, to ask itself: What more can be done? The HR professionals with whom I speak are asking questions along the lines of:

  • How do we ensure that leaders do not simply pay for but attend anti-harassment training and make clear their support for it — again, by their words and actions?
  • What is the best way to assess whether there may be a culture of complicity and, if there are complicit people with power, how do we best incent them to do what is right and stand up to what is wrong?
  • Knowing that many women who feel harassed do not bring claims out of fear, how can we create complaint procedures and environments in which employees do not fear retaliation if they raise or support concerns?
  • How do leaders respond “in the moment” to unacceptable conduct without engaging in paternalistic rescuing or re-victimization?
  • Other than thanking an employee for bringing any concerns to their attention, what should leaders say (or not say) when an employee has the courage to open up to them?
  • How can we respect the strong desire of many victims of harassment to keep the matter as confidential as possible but still send a strong message that the company will not brook unacceptable conduct, severe or subtle?
  • What are some promising practices to remind employees throughout the year of the reporting mechanisms, assurances of non-retaliation and harassing behaviors that must be avoided, recognizing that, even in the best cultures, training once a year may not be enough?

These and other questions require careful thought. Our employees deserve nothing less.

But one point must be crystal clear in every organization: The more power you have, the more is expected of you. Those who abuse their power must be met with prompt and proportionate corrective action.

In some cases, this will mean terminating the rainmaker. But if you ignore, or worse yet protect, him, a jury can and will take away all the rain. Plus, values matter.

While I am horrified by recent events, I have some hope by the response I see in the HR community. But HR cannot do it alone; it does not “own” civility.

Every leader must join the battle. It is one of the moral imperatives of our time.

Segal was appointed to and served as a member of the EEOC’s Select Task Force on Harassment. However, Segal speaks for neither the EEOC nor the taskforce.            

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

95 Million Reasons to Conduct an I-9 Self Audit…Very Carefully

I am pleased to share my latest post to The SHRM Blog.

In 2009, the Department of Homeland Security (“DHS”) began auditing the I-9 practices of Asplundh Tree Experts Co.  Last month, the Company pled guilty in Pennsylvania federal court to a charge of knowingly employing immigrants without authorization to work in the U.S.  The fine: a record $95 million.

In response, more and more employers are considering self-audits before DHS comes knocking at their doors.   While employers are well-advised to conduct an I-9 self-audit, there are legal minefields that need to be navigated or the self-audit may increase the employer’s potential liability.  Here are but some examples:

  • In the interest of being super compliant, some employers have considered having all employees execute new I-9s.  This is not super compliant, but rather super dangerous.  It raises serious discrimination risks under the Immigration Reform and Control Act (“IRCA”).
  • Other employers have questioned whether the Trump Administration’s Executive Order on DACA workers (Dreamers) requires that employers complete new I-9s for these DACA workers.  The answer is an unequivocal “NO.”
  • Employers cannot select for inspection employees they perceive to be high risk, such as those on visas, or those with “foreign-sounding” last names.  This type of targeted audit raises all but certain liability not only under ICRA but also the employment non-discrimination laws.
  • Inevitably, employers may find that some I-9s are missing.  In these cases, employers should complete new I-9s, dating them on the date in which they are completed.  NEVER back date.
  • In other cases, employers may find I-9s that are incomplete.  In these circumstances, the employer, using a different color ink, should have the document completed (either by the employer and/or the employee, depending on the omission) and, again, the employer should date the change on the date in which it is made.
  • In still other cases, there may be a mistake.  No employer ever should white out anything on the original I-9.  Rather, the employer, in a different color ink, should cross out the incorrect language, substitute the correct language and date same on the date the change is made.
  • The employer should prepare a summary of the scope of the audit, the manner in which it was conducted, and its findings.  But this is another blog for another day.

This blog should not be construed as legal advice.

Florida Employers: Wage and Hour Considerations and Hurricane Irma

I am pleased to share my latest post to The SHRM Blog.

Just as Texas begins its slow recovery from Hurricane Harvey, Florida braces for Hurricane Irma. So, we must, again, look at wage and hour rules:

  1. As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed. However, you generally can require that an exempt employee use PTO during a day in which you close.
  2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day. If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time. You also must pay him or her if he or she does any work from home.
  3. There is no legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for non-exempt employees who are paid under the fluctuating work week. Under the FLSA, they must be paid if you close due to the hurricane for less than full work week and they do any work in the work week, whether it be few or many.
  4. Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed.
  5. Also, if non-exempt employee works at home, you must pay for all time worked. Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid. Remember, break rules apply to working at home too.
  6. Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.
  7. Thankfully we all know that no employee should be told to put themselves at risk to come to work. Just in case there is a manager who does not know this, you should make sure they do. Thoughts and prayers to our colleagues and their workers in Houston and its surrounding areas.

Guidelines for How Employers Should Respond to DACA Uncertainty

This column was originally published on Entrepreneur.com on 9/7/17.

Yesterday, the Department of Homeland Security (DHS) ordered the wind down of the program known as the Deferred Action for Childhood Arrivals (“DACA”). In a memorandum issued with the rescission order, the DHS announced how the program will end.

DACA was founded by the Obama Administration in June 2012. DACA allows certain illegal immigrants who entered the country as minors to receive deferred action from deportation and eligibility for a work permit. It is estimated that approximately 800,000 individuals are covered by the program.

The DHS memorandum is clear that all current work permits remain in effect and will not be revoked. However, as of September 5, 2017, USCIS will not accept any new DACA requests.

The DACA program is scheduled to terminate on March 5, 2018 unless Congress saves the program. According to a press release by DHS, the deferral was designed “so Congress can have time to deliver on appropriate legislative solutions.”

What should employers do when they have DACA employees in their workplace? Three critical points:

1. Focus on the workplace issue as apolitically as possible.

Some employers will undoubtedly focus on the political, as is their right. However, if employers want to take a stand without creating polarity in their workforce, they are generally advised to be as apolitical as possible. The message is simple: you stand behind your DACA employees and will do what you reasonably can to support them.

2. Provide employees support but be careful of promises.

You can let employees know what you will be doing, such as writing to your senator or legislator. But be careful not to promise DACA employees that you will protect them no matter what. No one knows what the status of the law will be on March 5, 2018. As sympathetic as you may be, you cannot promise that you will protect these employees if the law is to the contrary.

One thing employers can do is seek work permit extensions to the extent permitted by the DHS Memorandum. While the details of seeking extensions should be discussed with immigration counsel, keep in mind that any such extensions must arrive at the USCIS no later than October 5, 2017.

Again, seeking extensions may slake some of the anxiety of DACA employees. But make clear there are no guarantees so they cannot later claim they relied to their detriment on your actions in not developing a plan B.

3. Don’t push employees to lobby for a legislative solution.

Employees may ask you if there is anything they can do to help their DACA colleagues. You can respond that they can contact their representatives in the Senate and House (mentioning that is what you are doing, if that is case.). But make clear that you are responding to their request and whether they choose to reach out to their representatives is entirely voluntary.

Do not reach out to all employees and encourage them to engage in grassroots advocacy (one way or the other). Not all employees will agree, and your doing so will then turn your workplace into a political battlefield. Plus, there are potential legal risks, to boot!

DHS has promised more detail. Stay tuned.

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

Houston Employers: Wage and Hour Guidance and Hurricane Harvey

I am pleased to share my latest post to The SHRM Blog.

For Texas employers, particularly in and around Houston, the priority is helping employees and remaining as operational as possible.  Just a reminder of the wage and hour rules that apply to remaining as operational as possible:

  1. As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed.  However, you generally can require that an exempt employee use PTO during a day in which you close.
  2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day.  If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time.  You also must pay him or her if he or she does any work from home.
  3. There is no legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for non-exempt employees who are paid under the fluctuating work week.  Under the FLSA, they must be paid if you close due to the hurricane for less than full work week and they do any work in the work week, whether it be few or many. http://www.twc.state.tx.us/news/efte/h_regular_rate_salaried_nx.html
  4. Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed.
  5. Also, if non-exempt employee works at home, you must pay for all time worked.  Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid.  Remember, break rules apply to working at home too.
  6. Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.
  7. Thankfully we all know that no employee should be told to put themselves at risk to come to work.  Just in case there is a manager who does not know this, you should make sure they do.  Thoughts and prayers to our colleagues and their workers in Houston and its surrounding areas.

 

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

The Oscars Tragedy and You

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

I watched in anticipation Sunday night as the of the best movie of the year was about to be revealed. l was pulling for Fences or Lion so I knew they would not win.

And, then Bonnie and Clyde, also known as Faye Dunaway and Warren Beatty, announced the movie of the year. Beatty looked confused, knowing something was wrong. He showed the card to Dunaway, who blurted out La La Land.

The winning team went on stage and happily accepted the award. But there was background noise. And, soon, the reason became clear.

Not all was la la in La La Land. A mistake had been made. The real winner was announced: Moonlight.

Now, we are not dealing with an amateur production. We are dealing with the Academy Awards. And, a big mistake was made on the biggest award on the biggest night in Hollywood.

What happened:

1. The Academy immediately corrected the mistake.
2. The La La Land team graciously announced the Moonlight winners.
3. The Moonlight winners graciously talked about sharing the stage with the La La Team

Our work lives are not choreographed like the Academy awards. We must respond “in the moment” without cue cards or rehearsals.

And, yes, we make mistakes, too. Most importantly, that includes those who work with us but, in their eyes, for us.

Some delighted in the Academy’s mistake. I delighted in the honesty and grace by which it was handled.

You might want to think about that the next time an employee makes a good faith mistake. Their mistake is a test of your grace.

3 Ways Entrepreneurs Can Protect Employees From Trump’s Immigration Executive Order

I am pleased to share my latest post to Entrepreneur.

On Friday, President Trump issued an executive order that:

  1. Suspends entry of all refugees to the United States for 120 days;
  2. Bars Syrian refugees indefinitely; and
  3. Blocks entry into the United States for 90 days for citizens of seven predominantly Muslim countries. The countries are: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

Four federal judges have blocked implementation of at least parts of the Executive Order. Even so, it appears the Administration will continue to enforce the Executive Order.

This is not a political but a business blog, so I will not focus on the issue of refugees, but focus solely on what the Executive Order means for employers relative to employees who have green cards or other foreign nationals who are lawfully working for them.

On Sunday, the White House Chief of Staff Reince Priebus said the Executive Order is not intended to apply to green card holders. Even so, it is not clear that this is the President’s position. Nor does it appear consistent with ongoing enforcement actions. Even if the Executive Order does not apply to green card holders, there are other foreign nationals lawfully working in the United States on temporary visas. Among the issues for employers to consider are the following three:

1. You can’t be certain employees who travel will be allowed to return.

Employers should not require (or even permit) employees with green cards or other visas from the seven designated countries to engage in business travel outside of the United States. If an employer requires or permits work-related travel outside of the United States as part of their jobs, at least two bad things may happen.

First, on a strictly business level, these employees may not be allowed to return to provide service to their employers. On a more personal level, these employees may be separated from their families and other loved ones. Caring for employees must go beyond work.

2. Educate affected employees about the risk of personal travel.

Employers cannot prohibit personal travel and you wouldn’t want to anyway. Indeed, a foreign national from one of the seven nations may have the legal right under the Family and Medical Leave Act to return to Iran to care for a parent with a serious health condition.

However, employers should consider talking about the risk of traveling outside the United States for those who hail from the seven countries covered by the Executive Order. But employers need to be careful how this is done. Even if well intended, a “rounding up” of employees from these seven countries to discuss the issue can lead only to greater anxiety and more. Plus, employees not from the seven countries may care about the issue, too.

Consider a communication to all employees. Analogy: if there is a new child care benefit, you would not announce it only to those known to have children.

3. Do you take a position?

We often have heard it said there are two topics we should try to avoid: politics and religion. Well, they are now the elephants in the corporate living room, and I am not sure employers can or should entirely avoid them.

A number of large technology employers have condemned the Executive Order. What should you do? Regardless of your politics or presidential vote, this Executive Order may negatively affect you as an employer. It already has increased anxiety among foreign nationals from the seven-targeted majority-Muslim countries.

At a very minimum, leaders are well advised to make clear that they will do what they reasonably can to protect their employees. An example of this may be, not putting employees at risk by sending them out of the country until this issue is resolved. Do not expect a quick resolution.

Some employers may want to go further and express their personal views. In doing so, employers are best to focus on the Executive Order and not the President who signed. it. Said otherwise, focus on the business issue. Some may conclude silence on the “political” issue is best. Fair enough. But sometimes the sounds of silence echo the loudest.

What Trump’s Immigration Executive Order Means for Employers

I am pleased to share my  latest article posted to Philadelphia Business Journal.

Last Friday, President Trump issued an executive order that:

  1. Suspends entry of all refugees to the United States for 120 days;
  2. Bars Syrian refugees indefinitely; and
  3. Blocks entry into the United States for 90 days for citizens of seven predominantly Muslim countries. The countries are: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

Four federal judges have blocked implementation of at least parts of the executive order.

Even so, it appears the Trump Administration will continue to back the order, causing questions to arise for employers and what it means for their employees who have green cards or other foreign nationals who are lawfully working for them.

Does the executive order cover individuals with green cards or other foreign nationals with the right to work in the United States?

The answer to this question is unclear. Members of the new administration have said it does not apply to those who hold green cards. But these statements are not law. Plus, even if the executive order does not apply to those with green cards, what about those who hold other visas to work in the United States? Until there is greater certainty, employers should assume the executive order may apply to all employees who are citizens of those seven-designated countries.

Should employers make clear that foreign nationals from the 7-designated countries do not have to travel?

Yes – employers should not require employees who are citizens from those seven affected countries to engage in business travel for them outside of the United States. Why not? We don’t know if they will be able to get back in! Such employees should be assured the absence of such travel will not have adverse impact on their employment status.

What if an employee who is a citizen of one of the seven impacted countries wants to engage in international business travel notwithstanding the executive order?

In these cases, employers may be tempted to say no to protect their employees from the unknown. But the courts have generally rejected “paternalism” as a defense to discrimination and this could be deemed discrimination based on national origin.

In these cases, employers should explain the personal risks the employee is voluntarily undertaking and ask him or her to acknowledge same in writing.

Can employers prohibit personal travel to their homelands by foreign nationals from the 7-designated countries?

This probably is overreaching and could be discriminatory. Is relying on an executive order the scope of which is unclear a valid defense to a national origin discrimination claim? I don’t know the answer and would not want any client to be the test case.

However, employers can and should communicate the risks of personal travel for some. At the same time, we don’t want employees from these countries to feel targeted. The reality is that many already do. So make sure the communication goes to all employees; also, employees not directly affected by the executive order care about their colleagues, too.

What will happen next?

I have no idea. I do know the situation if fluid, and that employers need to communicate with their employees. The level of fear and anxiety that can be found on social media does not remain there. It is in your workplaces, too

This is not legal advice pertaining to specific factual situations.

Mary Tyler Moore and Single Women

I am pleased to share my post to the SHRM blog regarding the legacy of Mary Tyler Moore.

A lot has been written about the passing of Mary Tyler Moore. Perhaps we did not know at the time how ground breaking the Mary Tyler Moore show was. In retrospect, it is clear to us.

There are so many episodes that dealt with gender equality, including when Mary was paid less because she was a woman and denied opportunities because she was not a man. With a wonderful combination of strength and humor, she leaned in….and prevailed.

But there was something else about Mary Richards that is getting less attention: the fact that she was single. No, it was not because of a death or divorce but rather a choice.

I have spoken with many single women about workplace issues. A blog on this issue was slated for later this year but the timing unfortunately feels right now.

Single woman have shared with me:

1. They have been asked why they never married. Are married women (or men) asked why they choose to marry? The often unspoken assumption: it was a result, not a choice.

2. They sometimes feel excluded from discussion on managing work and life. While many single people have children, many others don’t. Our respect for life outside of work cannot be restricted to those of either gender who are married with children.

3. They at times feel marginalized when invitations to employer events include spouses, partners or significant others. I know some men who feel the same way. Why not just “adult guest?”

Yes, some state laws prohibit discrimination based on marital status. And, I don’t believe many women (or men) are denied jobs or opportunities because of their single status.

In fact, sometimes they may be given extra work, particularly if they don’t have children. The conscious thought process or implicit assumption: they don’t need to go home.

The dialogue about intimate relations has become refreshingly more inclusive. Yet, we sometimes fails to recognize those who are not in them.

Do single men face the same issues? I am not sure.

I think single men are often seen as having made that choice. Well, this is a choice more and more women are making, too.

So when we remember Mary Richards, we can remember her “spunk.” Lou Grant, I love spunk!

And, we should remember what a pioneer she was for women generally. But I suspect she holds a special place for single women everywhere.

In our workplaces, let’s continue to challenge ourselves to be more inclusive. It’s the least we owe Mary!