Valentine’s Day and Kindness

General

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

We are approaching Valentine’s Day and the risks that go with it.

Of course, everyone should know that it is inappropriate to send a card with a sexual or suggestive message.  This is particularly problematic where there is a power disparity, but it is not limited to such occasions.

But when you look at Valentine’s Day cards, there are cards to parents, grandparents, children and grandchildren.  I do not believe they have any romantic or sexual message; I need this belief to survive.

So if we are thoughtful and careful with the cards we pick out, or the words we say, what’s wrong with acknowledging the “holiday?”  Is this not just another way to show employees that you care?

Your intent may be pristine, but the impact may be quite to the contrary.

The risk is great in the #MeToo era.  So why take an unnecessary risk?

No matter how careful we are, Valentine’s Day is a holiday that revolves around love and romance.  Even if not stated, the embedded message may be sex.

Rather than wishing our employees love on Valentine’s Day, let’s show them kindness throughout the entire year.  Yes, work gets harder every day, and employees need more kindness to get through it.

By kindness, I mean warm and gentle thoughtfulness with no expectation of a return on investment.  A casual smile.  Picking up coffee for a colleague.  Pulling back when you know someone needs space.  Making yourself available when you sense someone needs to talk.  Asking someone if they are feeling better.  Looking the person in the eyes with attention and not agitation.

We all have heard the expression “random acts of kindness.”  That we need to be reminded to do them randomly speaks to their deficit in the ordinary course.

Being kind to people means more than caring about their concerns or appreciating their contribution.  It means truly recognizing the humanity of a colleague without thinking about how what you do may benefit you.

So let’s not express our love on February 14.  Let’s practice kindness every day.

Don’t Make These Mistakes When Checking for Pay Bias

General

I am pleased to share my latest article posted on Bloomberg Law.

In the context of sexual harassment, we all are aware of the hashtag #timesup. Well, the same is true for pay inequity and pay discrimination.

In 2018, a majority of states have considered bills to address pay inequity. A number of these bills passed and we can expect even more activity in 2019. The number of lawsuits alleging pay discrimination has also increased. For example. in 2018 alone, the Boston Symphony Orchestra, Five Guys, Nike, and Spotify were among the many companies sued for pay discrimination.

For legal, business, and fairness reasons, employers need to get ahead of the curve and conduct an analysis to make sure they are paying fairly. But a pay equity analysis is deceptively complex.

Below are eight of the more salient mistakes/misconceptions I have observed when companies do pay equity evaluations and ways to address them.

1. Initial Assessment Not Under Privilege
An analysis to identify potential pay inequity later may be used against your organization to prove bias. So, consider analyzing your pay parity analysis under the attorney-client privilege.

However, even if structured and administered properly, a privileged investigation does not necessarily mean everything is privileged. For example only, the fact and scope of the analysis may not be privileged.

So don’t do an analysis, unless you are prepared to act on it.

2. Not Using an Expert
Many organizations have individuals who are technically qualified to do a multi-regression analysis, the heart of the pay equity analysis. But you want someone with deep expertise to guide you on what is a deceptively-complex process.

For example only, you will want to look at not only total compensation but also each element separately, including variable compensation where inequity may be more likely to exist. The variables to be held constant will differ depending on the element of compensation. Plus, there is the matter of “sequencing.” Not sure of the nuances of sequencing? I rest my case on the value of an expert. Plus, if there is litigation, relying on a strong expert has obvious benefits.

3. Looking Only at Jobs That Are Exactly the Same
Unlike the federal Equal Pay Act, many recently-enacted state pay equity laws do not focus only on pay equity where the jobs are the same. They require comparisons of jobs that are substantially similar, comparable or some other similar standard. This is true, for example, in California, Maryland, Massachusetts, New Jersey, Oregon, and Washington.

But what about jurisdictions where there is no pay equity law that goes beyond looking at pay relative to the “same” job, at least not yet?

To minimize claims (even if you prevail) and to maximize true equity, employers may benefit from looking at some jobs that are substantially similar or comparable, even in jurisdictions where it is not yet required. At a very minimum, consider looking at single incumbent positions, where employees may make the comparisons on their own.

4. Focusing Only on Gender
Federal and state anti-discrimination laws cover pay bias. And, these laws apply to a broad range of protected groups, not just gender. Further, the thee most recently-enacted pay equity laws—New Jersey, Oregon and Washington—apply to all protected groups under the state’s applicable non-discrimination law.

So, don’t focus only on gender. At a very minimum, employers should consider race, national origin, and age, too.

5. Relying on Defenses That Are Not Defenses
The fact that, as a result of the multi-regression analysis, there is a statistically-significant disparity does not mean that there is unlawful bias. It means the employer must evaluate whether there are legitimate, non-discriminatory reasons for the “outliers” (both high and low, not just low).

Some possible “defenses” include performance, seniority, and experience. But employers cannot simply pluck a defense listed in the applicable law.

Employers must ask: was the defense a factor considered, and applied consistently, in the process of determining this aspect of the employees’ compensation?

6. Assuming Good Statistics Means No Bias
It is dangerous to assume that no statistical problems mean there are no pay parity problems. A deeper dive is recommended.

For example only, there may be a perfect correlation between merit and performance evaluations, but that does not mean the performance evaluations are not tainted by conscious or implicit bias. How to address bias in performance evaluations and other factors that may include implicit or conscious bias is also complex.

Employers may be inclined to centralize and institute strong guardrails to limit the discretion that may lead to bias with regard to performance appraisals, discretionary bonuses, etc. But the centralization and guard rails may create the commonality of which class actions are borne. Employers need to walk the razor’s edge to avoid individual bias without creating an easy argument for certification of the class action.

7. Making Unnecessary Admissions in Taking Corrective Action
Let’s assume there are some low outliers that cannot be explained by legitimate reasons and need to be increased. The disparity could have been caused by bias. It also could have been a good faith mistake, a bad manager, etc. The reality is that, in most cases, you really won’t know the cause for sure; you will “know” only there is a problem to be corrected.

So make corrections without admissions that may not be true and invite back pay claims. Focus on the need for a change without speculating as to the cause of the inequity.

8. Documenting Outside of Privilege
If there is a pay equity challenge, you may want to rely on your analysis. If your initial analysis was conducted under privilege and you waive the privilege, how far does the waiver go? A court has discretion to hold that the desired discrete waiver of privilege results in a waiver over the entire subject matter of the analysis.

How do employers mitigate this risk? When the analysis is done under privilege, employers should consider re-running the final analysis and document the final decisions outside of privilege so that the employer can rely on non-privileged information in defending any challenge. This critical step, so important in protecting the privilege, is often missed.

 

A Jewish Guy Who Wears a Chai Gets Personal

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

For many years, around the holiday season, I have written cautionary tales from “The Jewish Guy Who Wear A Chai.”  Chai is the number 18 in Hebrew and means life.

This year, I was reluctant to use the title.  For the first time in a long time, I have been the target of antisemitism.  Then, there was the massacre of 11 Jews at the Tree of Life Synagogue.

Hatred against Jews is not new.  But it is increasing—there is a meteoric spike in hate crimes against Jews across the globe (both before and after the Pittsburgh massacre).

The day after the massacre in Pittsburgh, I decided to avoid the Jewish Guy theme. That was until I went to an interfaith service at my synagogue.

Even with every effort to accommodate those wishing to attend, there was an overflow crowd with people standing close to each other against the walls.  People of all faiths, races and ethnic backgrounds were there.

I heard from Jewish, Catholic, Protestant and Muslim clergy.  Political leaders from both political parties and leaders of various racial and ethnic groups who were not Jewish made sure, along with the choir of clergy, that their Jewish brothers and sisters were not alone.

I was particularly touched by the words of a Lutheran Pastor.  She said, in effect:

  1.  When anything bad happens to any of us, it happens to all of us.
  2.  When we do anything good for any of us, we do something good for all of us.

I left inspired to write this blog as who I am:  a Jewish guy who proudly wears his Chai.  I will not be cowered.

But, this year, I am not going to talk about holiday decorations or parties, as much as my sarcastic gene cries out. It is time to be more serious.

Regardless of our faith, or lack of faith, we must speak up when there is religious intolerance and that includes in our workplaces.  Here, too, silence is complicity.

But with religion, I have noted the condemnations, even if well intended, often are problematic.  To quote an article by Yair Rosenberg published in the Washington Post:

“It is impossible to recognize and fight a prejudice if you universalize it beyond all recognition.”

The attack in Pittsburgh was against Jews.  The attack in Egypt was against Coptic Christians.  We must be specific on the identities of the victims or we erase their identities.

That does not mean we should not universalize afterward.  We must.  After all, an attack on any of us is an attack on all of us.

But we must start with the identity of the victims.  So Islamophobia is not religious intolerance.  It is Islamophobia.

So, as I close, I chose my words carefully.

We have different faiths.  Some have no faith but act in good faith.

But we owe it to our employees—and ourselves—not only to condemn antisemitism and other forms of religious bigotry by their names but also to imbue the holiday season with an inclusive net of kindness.  After all, what we do good for any of us, we do good for all of us.

“Cooperative Dialogues” in New York City In Effect Now!

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

Important reminder that, effective today, October 15, 2018, under the New York City Human Rights Law (NYCHRL), employers must engage in a “cooperative dialogue” with applicants or employees in New York City with regard to reasonable accommodations in four (4) circumstances. More specifically, an employer must engage in the “cooperative dialogue” with:

  1. Victims of domestic violence, sex offenses or stalking;
  2. Individuals with pregnancy and related conditions;
  3. Individuals with religious needs; and
  4. Individuals with disabilities.

It is important to remember that, under the NYCHRL, the following are defined very broadly:

  1. The definitions of the 4 circumstances set forth above under which there may be a duty to make reasonable accommodations.
  2. The triggering event for when the duty to engage in the cooperative dialogue may arise in determining whether a reasonable accommodation may exist.
  3. The scope of the cooperative dialogue (in contrast to the interactive dialogue under the ADA).

With regard to the last point, under the NYCHRL, employers must provide to the individual requesting an accommodation a written final determination identifying any accommodation granted or denied. This critical requirement does not exist under federal or any other state or local law (to the best of my knowledge). Note: even where there is no such legal requirement, documenting the analysis is generally recommended.

The City of New York has provided guidance on the cooperative dialogue with regard to disabilities: https://www1.nyc.gov/assets/cchr/downloads/pdf/NYCCHR_LegalGuide-DisabilityFinal.pdf.

Guidance on the cooperative dialogue begins on page 51. The Guidance will be of some value for cooperative dialogues other than with regard to disabilities in terms of the process that New York City generally is looking for employers to follow.

Starting on page 112 are sample forms for the cooperative dialogue with regard to disabilities. These forms are a good starting point for employers, but should be reviewed by counsel for potential changes appropriate in light of other laws and/or the employer’s policies.

As always, this blog should not be construed as legal advice or as pertaining to specific factual situations.  

The Deceptive Complexity of Criminal Background Checks

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

In order to conduct a compliant criminal background check, employers ordinarily must comply not only with the federal Fair Credit Reporting (FCRA) Act, but also state and local laws.  This includes not only ban the box laws, but also laws that impose additional restrictions and requirements beyond when a criminal background check can occur.

Not to be forgotten is EEOC Guidance on criminal background checks. Do not dismiss it as mere guidance. Much of it incorporates what the courts already have said.

Here are some issues employers must consider. I have used the FCRA as a framework for the discussion.

One:  the first step under the FCRA is an authorization.  Among other things:

A.  This must be a separate document and cannot be part of the application for employment.

B.  It cannot include a waiver of claims.

C.  In California, there is a different authorization under state law.

Two:  the second step under the FCRA is the pre-adverse action notice.  Among other things:

A.  Per se rules that result in preliminary disqualification are per se dangerous.  In addition to the EEOC, many states and local jurisdictions require that certain factors go into the analysis.  Such states include New York and Pennsylvania and New York City and Philadelphia go even further than their respective state laws.

B.  Certain factors cannot be considered in deciding whether a conviction is disqualifying.  New rules have gone into effect in 2018 in, among other locations, California and Massachusetts.

C.  The FCRA Notice of Consumer Rights that must accompany the pre-adverse action notice recently has been changed to address freezing credit.  And, some states, such as New Jersey, have their own notice which must be given, too.

Three:  under the FCRA, the final step is the adverse action notice.  In some jurisdictions, the adverse action notice must do more than inform the individual of the final decision, for example:

A.  In California, for example, individuals must be told they have the opportunity to appeal to the California Department of Employment and Fair Housing.

B.  In Philadelphia, there is effectively a repeat of the pre-adverse action step—individuals must be given the opportunity to challenge with the employer (not an appeal to City) the employer’s disqualification finding.

This short summary includes only but a few of the minefields in criminal background checks.  Employers must consider a patchwork of federal, state and local laws that is deceptively complex, a particular challenge for multi-state employers. Don’t go it alone.

This blog is not legal advice

2018 DOL Opinion Letter Under the FMLA

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

Many employers have no-fault attendance control policies.  Stated generally:

  1. An employee’s employment terminates if he or she has a certain number of occurrences in a specified period of time.
  2. An occurrence “falls off,” and therefore is not considered, after a specified period of time, for example 12 months after the occurrence.

The law is clear that employers cannot consider time off under the FMLA as an occurrence under its no-fault attendance control policy.  But does the time that the employee is on FMLA leave count toward the period of time after which a point “falls off?”

The Department of Labor issued in August its first opinion letters under the FMLA in more than 9 years, and one (1) of the two (2) addresses this precise issue.  The opinion letter can be found at: https://www.dol.gov/whd/opinion/FMLA/2018/2018_08_28_1A_FMLA.pdf

The Department of Labor concluded that the period of time in which an employee is on FMLA does not need to be considered as part of the time necessary for an occurrence to fall off, provided that the employer applies this rule on a non-discriminatory policy basis.  For example, if the time an employee is on paid parental leave beyond the FMLA counts toward the period of time after which a point falls off, then not counting the time off covered by the FMLA would be discriminatory.

It is important that employers focus on this issue.  It is also important to note that a court might not agree with the DOL opinion letter.  As important, agencies or courts interpreting the ADA could come out with a different result under the ADA.

Further, the answer may be different with state and local leave laws.  We know that many state and local leave laws provide employees with greater protection than federal law.

So, while I am sure I am not alone in being grateful that the DOL has started to issue opinion letters again not only under the FLSA but also under the FMLA, employers need to be careful not to reach certain conclusions too quickly based on them.

This blog should not be construed as legal advice or as pertaining to specific factual situations.

A Very De Minimis De Minimis FLSA Exemption

In The News

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

As a general rule, employers must pay non-exempt employees for all time that they work (broadly defined) and that includes getting ready for work (preliminary activities) and finishing work (postliminary activities).  As discussed below, there is a de minimis exemption under federal law (FLSA).

In a recent case involving Starbucks, the California Supreme Court held the de minimis exemption was not available under California state law under the facts of the case.  If and when the de minimis exemption may be available under California state law will be decided in future litigation.

Some of the legal summaries of the Starbucks case suggest that the federal de minimis exemption is broader than it is. It is very narrow.

The following statement comes from the website of the United States Department of Labor:

Insignificant Periods of Time

In recording working time under the FLSA, infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, may be disregarded.  The courts have held that such periods of time are de minimis (insignificant).  This rule applies only where there are uncertain and indefinite periods of time involved, a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities.  As noted below, an employer may not arbitrarily fail to count any part, however small, of working time that can be practically ascertained….

https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenee29.asp

Notice some key concepts from the DOL’s enforcement position: (a) short (few seconds or minutes); (b) uncertain (cannot be regular occurrence;) (c) indefinite (which generally means not predictable amount of time each occurrence) and (d) cannot be precisely recorded (vague enough?)

Employers should draft their policies, train their managers, and review their practices to minimize the possibility that there will be any work for which an employee is not paid.  Think of the de minimis exemption only as last resort for litigation.

Employers need to consider work not only at beginning and end of the day but also any work that may be done during an unpaid meal period.  Another issue that needs to be considered is any work that may be done remotely, such as by telephone or e-mail.

The possible case scenarios go beyond this blog but employers need to think them through in drafting compliant policies, training managers and reviewing actual practices. Failure to do so may result in off the clock cases with off the clock judgments.

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

Suicide and the Workplace

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Because mental health matters, here is my SHRM Blog on suicide and the workplace.

This past month, two celebrities took their lives, Kate Spade and Anthony Bourdain.  To be more specific, they committed suicide.

It is important to say the word “suicide” because many media reports, at least initially, did not.  There is still, for some, discomfort with mental health issues in general and suicide in particular.

As with #metoo, high-profile cases draw our attention to an issue that is not limited to the high-profile.   Alarmingly, the suicide rate has increased by 25 percent since 1999.

But what does this have to do with employers?  Do employers have any legal duty to prevent suicide?

For the most part, the answer is generally “no.”  But that does not mean employers should not focus on the issue.

The law sets a minimum.  Responsible employers who genuinely care about their employees go further.

What can you do as an employer? What should HR do?

  1. Educate yourself and your leaders on suicide.  Severe depression, often coupled with substance abuse, is one of the primary causes of suicide.  Do not expect employees to just “deal with it.”  Substitute “cancer” for “depression” and you will see how cold and/or ignorant someone may sound if they suggest mental illness is weakness.
  2. Offer your employees access to professional help by way of an employee assistance program (an “EAP”).  As we all know, an EAP is a very inexpensive way to offer employees anonymous support for myriad issues from substance abuse to marital problems to suicidal ideation. If you don’t have an EAP, make the business case to get one.
  3. Share with your employees information about the national suicide prevention hotline.  I will do that just now: 1-800-273-Talk (8255). Why would you not?
  4. Emphasize when you discuss your health benefits both physical and mental health.  It does not hurt to message explicitly that there is no stigma in getting mental health support—no more than getting dialysis.
  5. Consult with a professional if an employee is talking about suicide, directly or indirectly, or if you have objective reason to be concerned about an employee (e.g., talking about helplessness). Obtain guidance on how to speak with the employee.  Yes, there may be some risk under the ADA in removing the employee from the workplace and requiring an assessment (‘perceived disability’ claim).  But that risk must be balanced against the human risk (among others) if your fear contributes to the employee’s decision to end it all.  Further, with careful planning, while the ADA risk cannot be eliminated, it can be minimized materially.
  6. Respond to disparaging, demeaning or hurtful comments about mental disabilities.  Such comments may increase the unwarranted shame and the risk of suicide.  Indeed, address as part of your efforts to educate your workforce on unacceptable behavior of a harassing nature.
  7. Revisit your wellness program.  Is there enough focus on mental health?  Do not assume the answer is yes. We need to add light to the issue so that people do not hide for fear of societal judgment and the life-threatening risks that go with it.
  8. Focus on respect in your leadership training. Being abusive may not be illegal but it is bad behavior that may take its victim to an even darker place.  Bullies are weak but they inflict penetrating pain.
  9. Get help yourself if you have had thoughts about suicide.  It is not weakness.  I cannot think of any greater act of strength.

 

Option B: Lessons from Sheryl Sandberg on Supporting Grieving Employees #SHRM18

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I am pleased to share my latest post to The SHRM Blog regarding Sherl Sandbergs advice on how to support grieving employees.

I am excited to hear Sheryl Sandberg, COO of Facebook, speak later this month at SHRM’s Annual Conference & Exposition in Chicago.

Sheryl is best known for her 2013 book Lean In. In this blog post, I want to focus on the book she wrote last year, Option B, with her friend and professor at the University of Pennsylvania, Adam Grant.

Option A is the employee’s life with a loved one. Option B is surviving without him or her

Option B is based on Sheryl’s loss of her husband, Dave, and her painful but inspirational journey forward. While the book is primarily about emotional resilience, it also provides valuable lessons for HR and other leaders. Here are seven:

  1. Do not avoid discussing the issue for fear you will remind the person of the loved one he or she has lost. Do you really think he or she can forget?
  2. Do not avoid the person. We may do that consciously or unconsciously to avoid the discomfort associated with the issue. Even Sheryl said she felt isolated. Try being as strong as the person suffering.
  3. Ask “How are you today?” rather than “How are you?” As she notes, this shows that you recognize there is something bigger than the day going on in the person’s life without expressly saying it.
  4. Don’t ask “What can I do?” She explains that this puts the burden on the person struggling to help you help them. Instead, offer a specific way you can help.
  5. Do something specific. Tell the person you are thinking of her. Buy him coffee. Send her a book by an author she likes. Just do it.
  6. Don’t say things that unwittingly diminish your colleague’s pain, such as “He’s in a better place.” Are you sure? Instead, tell the person you know it is hard and you are available to listen or help (but only if you mean it).
  7. Revisit your bereavement policy. You may want to add additional unpaid days that a person may take in some circumstances.

In addition to what I learned from Sheryl, I need to add a legal caution that, fortunately, is consistent with common sense.

Listen more than you talk. Do not ask if or suggest that the person is depressed or otherwise needs help. That could buy you a perceived disability claim under the ADA.

Of course, you can remind the employee of the EAP. Is there some risk in recommending the EAP? Sure. But not as much as appearing heartless.

I am excited to hear Sheryl at SHRM18. It is not too late to register.

An Epic SCOTUS Decision on Class Action Waivers

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I am pleased to share my latest article, written for Philadelphia Business Journal, on a recent ruling of the U.S. Supreme Court.

By a 5-4 vote authored by Justice Neil Gorsuch, the U.S. Supreme Court held in Epic Systems Corp. v Lewis that the National Labor Relations Act does not prohibit employers from using arbitration clauses in employment contracts to prevent workers from filing class actions over workplace issues.

Some describe this as a big win for employers. I think it can be described more accurately as an opinion that creates a decision point for employers.

As a purely legal matter, some employers may prefer one class claim before a judge than the specter of a large number of individual claims before an arbitrator.

As an employee and public relations matter, some employers may elect to exclude sexual harassment claims from any ban on class claims for the same reason that some employers are voluntarily taking the position that their mandatory arbitration agreements do not apply to any sexual harassment claims.

As a public policy matter, the decision likely will rejuvenate support for the Senate Bill entitled Ending Forced Arbitration of Sexual Harassment Claims, which has bi-partisan sponsorship.

The bill goes further than its title suggests, preluding mandatory arbitration of any claim of sex discrimination that could be brought under Title VII, such as pay equity claims, even if Title VII is not mentioned.

It should be noted that a bill that restricts mandatory arbitration, if applied only to sexual harassment, may not be as partisan as most of what we see in Washington.

In February, all 50 state attorney generals, Democrats and Republicans alike, signed a letter to Congress demanding that the law be changed to preclude mandatory arbitration of sexual harassment claims.

This would not be first time a Supreme Court decision spurred legislative action. Remember Lilly Ledbetter‘s loss before the high court only to have congress enact a law with her name?

Stay tuned—this story is far from done!