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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.

Why Holocaust Remembrance Day Matters: 2018

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I am pleased to share my latest post to The SHRM Blog on the continued importance of Holocaust Remembrance Day.

The United States Congress created the Days of Remembrance as our nation’s annual commemoration of the Holocaust.  This year, Holocaust Remembrance Day (Yom HaShoah) is today, Thursday April 12, 2018.

During the Holocaust, more than 11 million human beings were systemically murdered.  That includes 6 million Jews, 2/3 of the European Jewish community at that time.  That percentage still boggles my mind.  In my family, the percentage was much higher.

But the numbers would have been even worse were it not for the countless “righteous gentiles.”  The term “righteous gentiles” is used to refer to those who are not Jewish and who risked their lives to save Jews during the Holocaust.  They are specifically honored in Israel and throughout the world.

Today, I share with you a link to some of their stories. Please read about these heroes. Their stores are beyond inspiring.

On a personal note, I thank the Polish Church that hid my great aunt at their peril. Her daughter later adopted children from that same Church. .

And, of course, there were the millions of American and other service men and women who lost their lives in fighting Hitler’s machine.  They, too, cannot be forgotten.

I share this link to one story of their bravery.  You can find so many more by  using Google.

Unfortunately, this year Yom HaShoah feels more significant than ever, at least to me. Anti-Semitic acts and attitudes are, according to numerous reports, at post-Holocaust highs worldwide.

So what does this have to do with Human Resources?  Of course, one connection to Holocaust Remembrance Day is the “human” in human resources.  But it is more than just that.

This is not a day or week in which we celebrate the achievement or contribution of any group or people.  In remembering the Shoah in our workplaces, we are reminded of how important it is that we brook no hate.  It is also a time to recognize those employees whose lives were affected and shaped by this horrific period in history.

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. You still have time to do something today.

This is also a great topic for a diversity and inclusion program . The diversity in experience but the universal message that includes all:  we cannot tolerate intolerance against any faith, race, ethnicity, etc.

Include in your anti-harassment training examples of Anti-Semetic comments or actions. Of course, this must be in the context of religion harassment more broadly.

And, of course, every day, we must do our best to make sure that hate has no place in our workplaces.  A strong policy is not enough. When it comes to hate-based harassment, if you are in human resources or other leader, there is no such thing as a “passive bystander.” To ignore is to be complicit.

As Jews, we often say “Never Again.”  And, when we say that, we mean to anyone–at any time–anywhere.

Shalom (Peace) to all.

Bystander Interventions Without Paternalism or Re-victimization

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

Responsible employers, among other steps, train managers on their “bystander” obligations. It is not enough to refrain from bad behavior. As a bystander with power, if you see or hear harassing behavior, you must respond to it. But how?

Let’s take a “hypothetical.” A business meeting takes place among executives.  There are four men and one woman.  During the meeting, the group realizes they are not going to meet Wall Street’s expectations. One of the men snaps “oh F…”

After he said it, the F bomber looks to the one woman at the table and says, “I’m sorry.” Another man at the table digs the hole deeper by adding:   “He did not mean to offend you.” [How did he know that?]

By focusing on the one woman at the table, both male executives not only drew attention to her (re-victimization) but also suggested that she was a fragile creature who needed to be rescued and protected from their vulgar mouths (paternalism).

In this hypothetical, the woman was not offended by the expletive when it was used in response to bad economic news.  But she certainly did not like the attention being placed on her.  Having finished reading Jane Austin, she was not going to fall off her Victorian chair because of a curse word.

In this case, if anything were to be said, it should have been: “let’s keep it professional” but without focusing on the woman.

Change the facts: what if what was said was a “joke” that demeaned women? Should not someone apologize to her now?

NO!  Again, that only makes her the focus.  In other words, it makes it worse.  Plus, it suggests, were she not there, the demeaning comment would have been okay.

The focus should be on the person who made the comment.  Looking at the person who said it, someone with power (including HR) should say: “That is offensive to me. We will talk later.”

Respond “in the moment” so that others do not assume your silence is complicity. Then, take appropriate corrective action more confidentially.

Preventing harassment is more than preventing liability; it is about preventing harm. We need to train on “in the moment:” responses to bad behavior, or we may create harm in the process of trying to correct it.

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

The Role of HR in Smashing Harassment

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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

The Risks of Bias Testing

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I am pleased to share my article from SHRM’s HR Magazine posted on August 25, 2017. 

When hiring and promoting people, HR professionals and managers know that certain factors—such as gender, race, disability status and age—cannot be considered in the decision-making process under the law. What they may not understand, however, is that, without any conscious awareness, they actually may be considering these precise factors.

For example, a white male manager may know that gender and race lawfully cannot be considered in a hiring situation. But he, as a white man, may favor a white male candidate over a woman of color based on how “comfortable” he is with each of them, even though he has no idea that his comfort level may relate to race and/or gender.

Unconscious bias, often referred to as implicit bias, is bias that we are unaware of. It happens automatically and without any conscious thought process and is triggered by our brain making snap judgments formed, at least in part, as a result of the messages that we received growing up, as well as our own experiences, culture, mass media and other influences.

But how can we address a form of bias that we are unaware we have?

The first step is to acknowledge that bias exists and that no one is immune from it. Good people can—and do—make biased decisions. That’s one reason a training approach with a punitive tone won’t work well and, in fact, is likely to be counterproductive.

Implicit bias is both personal, in that the various stereotypes that employees have internalized can vary based on their experiences, and ubiquitous, in that we all harbor unconscious assumptions; it’s part of being human.

That doesn’t mean we should sugarcoat the issue—but it’s important to understand the dynamics driving unconscious bias and to think about how to best raise the topic so that individuals will be motivated to learn more about it and how it influences their decision-making. Raising awareness through bias testing, however, is a risky approach.

Understand the Evidence

You can start by familiarizing yourself with the scientific evidence demonstrating the existence of unconscious bias. In a 2002 study by the University of Chicago Booth School of Business, “Are Emily and Brendan More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination,” researchers sent recruiters virtually identical resumes that differed in only one way: the applicants’ names.

They found that individuals who submitted resumes with “white-sounding” names received 50 percent more callbacks than those whose monikers were more likely to be associated with black applicants. In other words, all else being equal, Karen will fare far better in her job search than Keisha will.

Another classic study, 1997’s “Orchestrating Impartiality: The Impact of ‘Blind’ Auditions on Female Musicians” by the National Bureau of Economic Research, involves an orchestra that wanted to increase gender diversity but was having trouble finding women with the requisite talent.

After the orchestra had no luck with the traditional audition process, individuals were asked to perform behind a curtain. Magic! As a result of this step alone, women were 50 percent more likely to proceed to the final round of auditions.
In both cases, conscious and unconscious bias were likely at work. But as the latter example—in which the orchestra stated a genuine desire to increase gender diversity—shows, it is often people’s implicit prejudices that steer them toward partial outcomes.

 

Know the Basis for the Bias

What is the basis for implicit bias? Part of the answer may lie in neurology and social psychology.
Stereotypes that are perpetuated and reinforced by messages we receive through the media, societal cues or our individual experiences can become embedded in the amygdala region of the brain, which is activated when we make snap judgments based on pictures, images or names that can correlate with a characteristic such as race, gender or age. As a result, we make unconscious associations, which can be either positive or negative, based on these factors.
 
Understand the Risks Of Testing

There are a number of tests that individuals can take to become more conscious of their unconscious biases. One is the Harvard Implicit Awareness Test (IAT), which measures implicit bias in 14 areas, including gender, race, religion, age and sexual orientation.

The test shows images and words associated with a color, gender, religion, etc. Generally, the slower the test-taker is in pairing certain words or images with a specific group, the more likely he or she has an implicit bias, according to the assessment.

A report published in the European Review of Social Psychology in 2007, “Pervasiveness and Correlates of Implicit Attitudes and Stereotypes,” found that:

  • 68 percent of respondents had a more favorable automatic association with people who are white than they did with people of color.

  • 76 percent made a greater connection between the words “men” and “careers” and “women” and “families” than they did with the converse concepts (“men” and “families,” and “women” and “careers”).
But while the IAT and other such tests may be instructive for individuals, these assessments are far from conclusive. For example, there is considerable debate among psychologists about their reliability. (A discussion on this topic appears in “IAT: Fad or Fabulous?” in the July/August 2008 issue of the American Psychological Association’s Monitor on Psychology.) Moreover, the tests may create legal risk because the results are discoverable in litigation.

Consider the following example: Greg chose Jim over Jane for a promotion. Soon afterward, Greg is deposed in a claim by Jane alleging sex discrimination. The plaintiff’s attorney initiates the following line of questioning:

“You took an implicit awareness test?” the attorney asks.

“Yes,” Greg replies.

“Did you have any implicit bias in terms of gender?” the lawyer continues.

“I was surprised to learn that I favor men over women,” Greg says.

 “And you picked Jim over Jane. Is that correct?” At this point, the plaintiff’s attorney is thinking about using the money her firm wins in this case to purchase a summer home.

“Yes, that is correct, too,” Greg says.

“But you admit both were qualified?” she asks.

“Yes, but …” Greg trails off.

Now Greg’s company would need to bring in an expert to discredit the test that was used, and even then the jury could find the test to be more valid than some psychologists may find it to be.

So think carefully before reflexively using implicit awareness tests. At a very minimum, consider their potential usefulness as well as the legal perils that they may create.

Fortunately, there are less-risky steps employers can take that are helpful in identifying and addressing unconscious bias. I will cover them in next month’s issue.

Florida Employers: Wage and Hour Considerations and Hurricane Irma

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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.

Houston Employers: Wage and Hour Guidance and Hurricane Harvey

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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

An Alternative to Voluntary Retirement Programs

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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?

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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

General, , ,

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?