Tag Archives: HR Magazine

9 Tips for Closing the Gender Pay Gap

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.

That Difficult Conversation

Please enjoy my latest article for SHRM’s HR Magazine.

Every HR professional and manager has had to have a tough talk with an employee about his or her performance. Sometimes it is in the context of an annual appraisal. Other times, it may be a final warning prior to termination. But regardless of when the discussion happens, careful planning is necessary. Otherwise, the wrong things may be said or done, and difficult conversations can quickly evolve into difficult lawsuits. Here are 11 tips to help take some of the pain—and risk—out of those closed-door meetings.

1. Don’t Delay

Understandably, many of us defer uncomfortable confrontations. But while we’re procrastinating, the employee may be well-aware that a performance discussion is in the offing—and may use that to his or her advantage. For example, the individual may consult with a lawyer and allege a legal wrong, engage in protected activity, or take protected leave.

When situations like these occur, they put you in a tough spot. That’s because when you finally have the difficult conversation you’ve put off for so long, it may appear retaliatory.

Delaying only gives the employee power to make a pre-emptive strike. If you must defer the discussion, document what the conversation will be about, when it will occur and why you have to wait to talk at that particular time.

2. Avoid Chitchat

People often try to break the ice at the beginning of a difficult conversation with casual chatter. It is understandable but problematic. No good can come from starting with “How is your daughter recovering from her surgery?” Well-intentioned though it may be, this question could result in a discrimination claim under the Americans with Disabilities Act (ADA).

Treat the person respectfully, but don’t engage in small talk to put off the issue. Acknowledge immediately that this is going to be a difficult conversation about serious performance issues.

3. Document in Writing

Ideally, you should prepare two documents before meeting with the employee. The first lists talking points for yourself; the second is a document for the employee.

Consider giving the memo (or appraisal) to the worker at the beginning of the meeting and allowing him or her a short period of time to review it. After all, you have (hopefully) spent considerable time writing it, so give the employee some time to digest it before you begin discussing the situation.

4. Provide Examples

Of course, you should broadly identify where an employee’s performance has fallen short, such as in the area of customer service. However, without more information, such generalities provide little guidance. They also don’t offer the employer much support in the event of a claim.

Provide a number of specific behavioral examples of times when the employee did not meet objectives. If you are recounting only a small sampling of many such incidents, make that clear.

5. Avoid Focusing on Intent

When an employee fails relative to performance expectations, the employer may be disappointed or even angry. You may want to say, “You don’t care” or “You’re not trying.” This is ill-advised, for multiple reasons.

First, intent is largely irrelevant. The issue is results.

Second, you can’t prove intent. An employee has the upper hand in being able to demonstrate how hard he or she has tried.

Finally, by impugning intent, you are, albeit unconsciously, attacking the employee. When attacked, employees fight back.

6. Stay Away from ‘Why?’

It is critical that managers do not inquire or speculate as to whether a physical or emotional condition or a work/life management issue may be giving rise to the performance deficiency. For example, if you ask an employee whether he or she is depressed, the worker may answer, “Not anymore. Now I have a perceived disability claim under the ADA.”

That does not mean that you should not try to help. Just don’t speculate as to the reason for the performance deficiency.

There are plenty of supportive things you can say, such as, “We want you to succeed. Is there anything we can do to help?”

If the employee mentions a disability, condition or religious belief, you must begin an interactive dialogue.

7. Make No Excuses

No employer is perfect, and sometimes an employee’s failings are due to those of the organization. If that is the case, the worker should not be held accountable.

However, too often managers say things like, “It’s probably just as much our fault as it is yours,” simply to soften the blow.

That can come back to haunt you. In fact, in a case I handled many years ago, an employee used a similar statement from his employer as evidence that the organization was at fault rather than the worker and that the reason given for terminating the employee was a pretext.

Don’t take responsibility unless you are responsible.

8. Watch for Code Words

Of course, before having a difficult conversation, you need to make sure that there is no bias. However, even when the employer has a legitimate cause for complaint, sometimes individuals use words that may hint at discrimination.

For example, what might be the problem with labeling one employee as “too emotional” and another as “too rigid”? If you guessed possible gender and age discrimination, respectively, you are correct.

In the first instance, an employee yelled and then failed to meet her deadlines. In the second, the individual refused to do what was being required of him.

The behaviors were unacceptable, but the labels suggested bias.

9. Avoid Absolutes

I remember in law school hearing “always avoid always and never say never.” That’s because absolutes are absolutely assailable.

It takes only one example to the contrary, and the statement you have made is no longer accurate and may be evidence of pretext. The argument: You are exaggerating in an attempt to “get” the employee because he or she is [fill in the protected category].

In difficult discussions, it’s better to say “almost always” or “almost never.”

10. Listen

Give employees an opportunity to talk. Sometimes the worker has a valid point—or may provide clues as to why he or she is underperforming. With that may come a road map for improvement.

As important as what the employee says is what he or she doesn’t say. If an individual says nothing and later claims he or she was denied a needed accommodation, the prior silence may help the employer defend itself from the employee’s subsequent lawsuit.

11. Clarify Expectations

Yes, you need to clarify what the problems are. But you must also articulate what your expectations are going forward.

Set specific objectives and talk about when you will meet to discuss them—then do it.

Remember, the primary objective of the difficult discussion is not to create a record that can withstand scrutiny. That is the secondary purpose.

Rather, your first goal is to enable the employee to make the needed improvements so that both he or she and the organization can succeed.

 

Give Me a Break

I am pleased to share with you my latest article written for SHRM’s HR Magazine.

Legal Trends
Give Me a Break
Vol. 58 No. 12
Know the rules for different kinds of work breaks.
12/1/2013

There’s no taking a breather from the requirements of the Fair Labor Standards Act (FLSA). Some of its most arcane requirements pertain, in fact, to breaks. Got all of those rules memorized? What about your managers—do they remember the rules? Probably not, if it’s been more than a year since your last FLSA training. No, it’s not required, but it’s the best way to reduce your potential (and realized) liabilities. So get out a pen and paper—it’s time for a refresher on the FLSA. Continue reading Give Me a Break

Affinity Group Danger Zones

I am pleased to post my recent article for SHRM’s HR Magazine:

Legal Trends
Affinity Group Danger Zones
Vol. 58 No. 9
Structure affinity groups so they are lawful.
9/1/2013

Smart organizations want to increase employee engagement and inclusion. One way to do that is through affinity groups. Continue reading Affinity Group Danger Zones

Employers in the Crossfire

From SHRM’s HR Magazine:

Employers in the Crossfire
Federal and state gun laws have ramifications for employees and employers alike.
6/1/2013

Last year’s massacre at Sandy Hook Elementary School in Connecticut was beyond tragic—and there have been more school shootings since then. In response, lawmakers in Washington have launched a game of political football. Continue reading Employers in the Crossfire