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An Alternative to Voluntary Retirement Programs

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

Under federal and state laws (most or all), employers can have voluntary retirement programs. Of course, there is much litigation on whether and when an employee’s decision to retire is truly voluntary.

However, even if there is no pressure placed on an employee, think about the message that the program sends and/or likely will be heard as sending: we want to get rid of mature employees. This places “age in the air” and can be used to argue age bias when an older employee later is discharged or laid off (even where there is no bias).

Here’s the argument: you tried to incent me to leave; when that failed, you removed me involuntarily. And, how will a jury react?

Jurors have only one common denominator: everyone on the jury hopes they have gift of longevity; that is, that they, too, get older. So there may be sympathy and empathy for the mature worker.

There is an alternative, and safer, approach: a voluntary severance program that is offered to all or groups of employees regardless of age. Older employees with more seniority usually will be eligible for more by virtue of their seniority but the program is not aimed at them.

But what if someone applies and you want to say “No?” No material worries (absent saying “No” in a discriminatory way).

If a voluntary severance plan is properly drafted and distributed in accordance with ERISA, an employer should be able not only to exclude from consideration certain groups, positions etc., but also to reserve the absolute right to say “No” to any particular employee in a non-excluded position who applies for an exit package if the employer’s concludes that the employee’s departure is not in the employer’s best interests.

So this year, the 50th Anniversary of the ADEA, I encourage you to think beyond whether a voluntary retirement program is lawful. I ask you to think about the message it sends.

It is not only a legal issue. It is also a cultural one. What message do you want to send to workers with the experience you need to compete?

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

 

How Are You Honoring Holocaust Remembrance Day Today?

Every year, I write a blog for SHRM on Holocaust Remembrance. Below, is this year’s post.

Today, April 24, 2017, is Holocaust Remembrance Day (Yom HaShoah) .

During the Holocaust, more than 11 million human beings were systemically murdered. Plus, millions more died in battle. That includes our brave military forces that sacrificed their lives to save the lives of others.

Of course, every life is a universe. Every loss of innocent life matters equally.

But, the Holocaust had a disproportionate effect on the Jewish community. Six out of nine million European Jews were murdered—the percentage is staggering.

I acknowledge this is personal to me. Most of my family was killed in the Holocaust and that forever informs my worldview.

Those who were saved also informs my worldview. My cousin’s mom was saved by a Catholic Church at great risk to those who were part of its community.

YomHaShoah is a painful reminder for many of us and that pain does not remain at home. HR can help.

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 an ideal topic for a diversity and inclusion program. We can focus on the Holocaust but conclude with a universal message: We cannot tolerate intolerance against any faith, race, ethnicity, etc.

Invite a survivor to speak. Bear witness to someone who did.

There are many ways that HR can remember. I respectfully request that you find a way to do something.

I close by citing Elie Wiesel:

“For the dead and the living, we must bear witness. Not only are we responsible for the memories of the dead, we are responsible for what we do with those memories.”

Kindness

I am pleased to share my latest post to The SHRM Blog on kindness and leadership.

I like to read and re-read blogs on leadership. They are helpful reminders on what I need to keep doing (or not doing) and where there are opportunities for personal growth. Although expressed from different perspectives, the articles often cover the same attributes or competencies that we rightfully expect from good leaders.

I am struck by how often we need to be reminded to listen. Sound too basic? If you are preparing your response when someone is talking, you are you fully listening? The answer is NO, and I have to remind myself of this on a regular basis.

And, of course, we are reminded that we need to express our recognition. But, too much attention is paid to recognizing concrete accomplishments and not enough to existential recognition: acknowledging someone exists by saying hello or non-verbally recognizing their presence.

I am glad to see more articles/blogs focus on caring. If you don’t care for your employees, they won’t care for you. So, some of our caring, if we are honest, in self-serving. .

But absent from the blogs that I have read is one attribute that feels endangered in our fast-moving, highly-polarized and sometimes cruel world: kindness. 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. Leaning in 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.

As leaders, we need to do more than perform random acts of kindness. Kindness needs to be in our DNA. That does not mean being weak. And, it does not mean avoiding hard decisions. One of the best HR people with whom I have the pleasure to work was thanked after she terminated someone. The terminated employee thanked her for her kindness.

The antithesis of kindness is bullying. When I see bullies, I see weak snowflakes – those who can feel good about themselves only when they make others feel less than them.

When I see kindness, I usually see strength, someone strong and secure enough that they can risk being and being seen as more gentle. And that leads to the ultimate question: are you strong enough to be kinder?

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.

Love, Lust and Valentine’s Day

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

There were times when I cautioned HR to keep a firewall between Valentine’s Day and the workplace. The reason for the caution is the initial purpose of Valentine’s Day.

We all know that the initial purpose of Valentine’s Day was for individuals to express their love to those whom they love in a non-platonic way. I was tempted to say romantic, but I once had a manager deny there was any romantic relationship because “it was only sex.”

Over time, however, the meaning of Valentine’s Day has changed. Just look at cards to parents, grandparents, kids, etc. There is no sexual message.

Many employees acknowledge the day too by simply saying “have a nice Valentine’s Day.” I don’t think they mean: “I want you here and now.”

And, some managers will bring in Valentine’s candy or other treats. I don’t think they have any predatory motive.

So, I am not sure it is reasonable to say Valentine’s Day has no place in the workplace. Does that not make an employer seem excessively restrictive? And that may have an unintended effect of undermining critical restrictions.

But here are 8 guard rails to consider as we approach Valentine’s Day:

  1. Okay to say Happy Valentine’s Day. I would avoid happy V.D.
  2. Better to say Happy Valentine’s Day to a group than an individual. You don’t want anyone to feel singled out.
  3. Be thoughtful not only on what you say but also how you say it. An accompanying wink can make earnings disappear in a blink.
  4. Managers should be more careful if, when and how. Perhaps respond only but don’t initiate.
  5. Managers should never send a card, e-mail or social media message to a subordinate over whom they have direct or indirect authority. Most certainly the card should not include an audio of I Honestly Love You.
  6. Never ask anyone who their Valentine is or whether they have one, unless you want to be a defendant.
  7. Any food you might bring in can be shared without fanfare. Don’t need to say anything. The food will speak for itself.
  8. Remember, not everyone has a “Valentine” in the traditional sense. While not having an intimate partner is not a “protected group,” such individuals are human beings who matter. Be thoughtful on how such individuals may feel when we share what is a common bond to most but not all.

The business world is becoming painfully competitive. Sometimes businesses get lost in defining and crowing about their cultures without genuinely caring for people who compose it.

No, HR does not need to coddle employees, but we need to help bring back some of the warmth in our workplaces that has been replaced by an increase in harassing behaviors, bullying and political infighting.

That we need to be careful on Valentine’s Day not to send intended to unintended romantic messages does not mean that our workplaces would not benefit if our words and actions manifested the love we feel in our hearts.

If you share metaphorically a little love in your heart:
And the work world will be a better place
And the work world will be a better place
For you and me
You just wait and see

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!

IT and HR Must Work Together to Improve Security

I am pleased to share my latest article for SHRM regarding the role of HR in cyber security.

Cyber security is a significant concern for businesses, and it is only going to get bigger.

In 2016, many companies of all sizes were affected by cyber attacks from outsiders.

But some cyber security breaches are inside jobs. Sometimes they are deliberate. Other times, the breach is due to human error. Either way, these attacks can have disastrous effects.

The National Cyber Security Alliance, a Washington, D.C.-based think tank, reports that a data breach can shutter a small business. And a survey by Russian cybersecurity company Kaspersky Lab, 2016 Corporate IT Security Risks, stated that the average amount of damage caused by one attack may cost small and medium businesses up to $99,000.

The practice of cybersecurity carries with it legal and reputational implications. So the question becomes: Who owns these responsibilities?

However, I bristle at the notion that a single function “owns” an issue because then employees in other functions may believe by negative implication that they do not need to do anything. In this case, while IT plays a central role, ownership of cybersecurity must go beyond IT and include HR, among other departments.

Let’s divide HR’s role into five categories.

HR as the Problem 

Sometimes in HR we feel like we are the policy or procedure police. Well, sometimes we are the culprit, too. As you well know, HR has access to highly sensitive information, including employees’ Social Security numbers and some medical information. HR needs to evaluate whether the background check procedure for those seeking positions in the HR department is robust enough. In some organizations, criminal record and credit checks are done for some employees in finance and IT but not for employees in HR. HR needs to consider this gap.

HR Policies

HR may want to consider including in the employee handbook or other policies a summary, developed with IT, of do’s and don’ts relative to cyber security. This is not in lieu of but in addition to mandatory employee training.
Here is but one example: Employees must report immediately the loss of any device, including a mobile phone, that contains their employer’s confidential information. Immediate reporting and rapid wiping can mitigate the risk materially.

HR and Employee Training

As noted, employee training is essential. IT can develop the training program, but HR plays a key role, too. For example, HR can listen to the proposed program and make sure it works for the intended audience. Simply telling employees not to fall for phishing schemes is meaningless unless you define phishing and give concrete examples.

HR and a Rapid Response Plan 

In the event there is evidence that someone is appropriating confidential information, HR needs to be prepared to work with IT in questioning the employee and taking corrective action as appropriate. These are not IT investigations alone. IT should not be expected to have the expertise necessary to handle employee rights issues in the context of these investigations.

HR and a Business Continuity Plan 

If there is a cyber attack or an internal breach, whether deliberate or as the result of carelessness, the company is going to need to move quickly in response. How will the organization work if its systems are shut down? When must employees be paid if they cannot work? Legally, what notification requirements exist if certain employee information (or that of patients or customers) has been exposed? As with any other crisis, whether it be a weather disaster, an incident of violence or a pandemic, the role of HR in the business continuity plan cannot be underestimated.

Swinging for Singles

I am pleased to share my latest post to The SHRM Blog regarding goals in the new year.

As we start the New Year, many of us have made resolutions for personal growth in the professional space. After a few days off and the excitement of the promise of a new beginning, many of us set bodacious goals for ourselves. When we do so, we set ourselves up for failure.

To be clear, I am not talking about business goals. We need to stretch ourselves and often are stretched by the business needs beyond our own stretching. I am talking about how we handle ourselves in reaching those goals. That’s the kind of personal growth about which I write.

Many opportunities for growth are our strengths taken to the extreme. For example, we are driven but sometimes lack the patience with others who don’t drive at the same speed. This may leave them feeling less than so they deliver less than we expect of them.

The bodacious goal is to become as copacetic as the colleague who is deeply driven but also has breathtaking patience. You may not be wired that way. I for sure am not.

The more realistic goal is to try to be more patient (not patient) and think of specific situations where it is attainable. Not sure of what they are? Ask a trusted colleague. Or, think of times when you did not get the response you had hoped for and ask: what was my role?

When I was a little guy, I loved playing baseball. I had a great eye but was not very strong. So, I swung for singles and did rather well. When I swung for the home run, I missed every time. Actually, the same is true for doubles.

In life, I try to swing for singles. And, that includes in personal growth. I think if we are realistic and gentle with ourselves, we are more lucky to be successful and gentle with others.

So happy New Year and may the year be full of singles. And, if you miss the ball, keep swinging. If you improve by “only” 30%, you are batting 300. Not bad, huh?

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

Sheryl Sandberg and the Need for More Male Allies

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

Last month, a study on gender and leadership conducted jointly by LeanIn.Org and McKinsey & Co. was published. Accordingly to the study, women account for only 19 percent of the C-suite executives (based on responses from 132 companies).

The numbers are even more distressing if one focuses narrowly on Fortune 500 companies. The percentage of female CEOs dropped in 2016 to only four percent. Yes, four percent.

Needless to say, women are grossly underrepresented at the top. And, that hurts women more directly but men too, because companies indisputably do better when there is gender (and other) diversity at the top.

On the same day as the study was released, the Wall Street Journal published an article written by Facebook COO Sheryl Sandberg “Women Are Leaning In—but They Face Pushback.” As almost everyone knows, Sandberg wrote (3 years ago) the ground-breaking book, Lean In: Women, Work and the Will to Lead.

When Sandberg wrote Lean In, she acknowledged the obstacles women who want to lead face. She chose to focus more heavily on how women can navigate these obstacles.

In her Wall Street Journal article, Sandberg focuses on the wall women hit when they lean in (a meme for “go for it if you want it.”) Citing the McKinsey/LeanIn study, Sandberg states: “women who negotiate are 67 percent more likely than women who don’t [negotiate] to receive feedback that their personal style is “intimidating,” “too aggressive,” or “bossy,” and they are more likely to receive that kind of feedback than men who negotiate.”

This is consistent with what Sandberg wrote in Lean In:

  • “She is very ambitious is not a compliment in our culture.”
  • “Men are continually applauded for being ambitious and powerful and successful, but women who display these same traits often pay a social penalty.”
  • “When a man is successful, he is liked by both men and women. When a woman is successful, people of both genders like her less.”
  • “But since women are expected to be concerned with others, when they advocate for themselves or point to their own value, both men and women react unfavorably.”

Sandberg’s article is a clarion call for companies to do more. In this blog, I want to narrow the focus: men must do more.

Too often the burden of eradicating gender bias is left to women. This is wrong in so many ways.

Women and men alike are hurt by gender bias. Why should women alone tackle the problem?

Mentoring and sponsoring is essential, yet in many organizations the responsibility as it relates to women is placed almost solely on women. This investment in others diverts women in or near leadership from their own goals. Why should women bear this responsibility alone?

Men have a perspective that is needed to tackle the problem. Gender diversity is a “plus” and that includes in tackling gender bias.

We need more male allies. Of course, that means at looking at systemic issues.

But there is a lot men with influence can do “in the moment” on a day to day basis. Here are just a few examples:

  • Continue to call out successes by men who work for and/or with you. But make sure you do the same for women and with the same enthusiasm. If you are aware that unconsciously this may not be your proclivity, you can consciously overcome the bias.
  • If you begin to think that a woman is too assertive, pushy, bossy (get the picture?), focus on what she is doing and then ask yourself: how would I react if Jim rather than Jane were engaging in this behavior? Again, with conscious awareness of the potential unconscious double standard, you can overcome it.
  • Use your voice to speak loud and often about the business benefits of gender diversity. Yes, it is a moral issue, but money talks so talk money.
  • Speak up when you hear assertive women called “bitch” or worse. To ignore is to condone. There is no such thing as a passive bystander if you are a leader.
  • Engage in cross-gender sponsorship and mentorship. Where men hold disproportionate power, this is necessary for women with potential to have access to power. Plus, you will learn as much as you impart.

Don’t wait for a formal program. Time is of the essence.

Sheryl Sandberg has asked women: what would you do if you were not afraid?

I ask men: how much will you do if you are secure?

Political HR Tale in Wacky World of Election 2016

I am pleased to share my latest post to The SHRM Blog regarding the upcoming election and the workplace.

In less than two months, the Presidential election will take place. You are thinking about that when you see your receptionist wearing a button for her political candidate.

You ask her to remove it because you have customers of diverse political views. She says “NO,” promising to file a case with the Supreme Court because you are violating her First Amendment rights. Note to SCOTUS: we hope you enjoy her as much as we do.

Well, First Amendment restrictions do not apply to private employers. The First Amendment restricts only government action. So you nicely tell your employee either the button goes or she goes. She walks off the job. Note to file: discuss reserve for litigation.

You continue down the hallway and you see two employees wearing buttons for opposing candidates:

-A Clinton supporter’s button talks about need for paid parental leave.

-A Trump supporter’s button talks about religious liberty and Obamacare.

Thinking of the First Amendment, you tell both employees: off with the buttons. And the NLRB responds: off with your heads.

If political buttons relate to terms and conditions of employment, they may be protected under the NLRB. I won’t say anything negative about the NLRB, even though the NLRB seems fond of disparagement as they attack non-disparagement clauses!

You go to your office and you hear two employees fighting over the election. Neither can believe their colleague would consider voting for the other candidate. Time to play referee.

Just focus on the disruptions without regard to the content. The NLRB probably would allow employers to focus on the disruption, if substantial, even if the issues discussed were work-related. I say probably because, as you well know, this NLRB has defined employee rights very broadly and management rights narrowly…

You go back to your office and you close the door. The phone rings: a manager asks if he allows an employee to solicit for one candidate during his working time, does he have to grant equal access to another employee soliciting for the other candidate during her working time?

You reach into your pocket and take a pill. Yes, it was lawfully prescribed after the last holiday party.

Neither federal nor most state or local laws consider political affiliation a protected group. But forget the law: you don’t want to alienate a sizable portion of your workers, customers or business partners.

But allowing solicitation uniformly is not the answer to this question. Your uniform exception to your no-solicitation rule during the employee’s working time now allows employees to solicit uniformly for unions during their working time. Oh what a web the law weaves.

After you talk with the manager, she asks you, as a friend: whom do you favor? You think of changing the topic to something less controversial—your sex life—but the thought is just that.

Temperatures are hot and they will get only hotter. When the election is over, you need to work together. People often feel attacks on candidates as attacks on them.

So, respond only if you have a strong relationship with the person that is beyond merely professional and you are confident you both can survive knowing you may vote differently. Don’t be too confident.

You breathe deeply and begin to relax until you hear an employee making comments about Muslims or Mexicans. This is not a political, but a factual statement. Do you need to pick a side?

Yes, the law. Brook no bias by either side. You must respond proactively to disparaging comments about Muslims, Mexicans, Evangelical Christians, white men or any “protected group.” To ignore is to condone if you are in a position of power.

You call a friend and share what so many of us feel–you cannot wait for the election to be over. Your friend assures that you have the holidays to look forward to—a time for peace and tranquility.

Your friend clearly either is not an HR professional or just plain crazy if she thinks the holidays are the most wonderful time of year at work. Every holiday decoration designed to increase inclusion is deemed a micro-aggression by someone. Stay tuned for more on holiday headaches in December!).

But until then we must survive. And, we will—with a little help from Gloria Gaynor.