Thursday, September 22, 2016

Overtime Overheat

The challenges ahead….

Soon after the DOL announced that it would draft proposed new rules for the overtime requirements under the Fair Labor Standards Act (FLSA), we began to hear from various sources how detrimental the new salary threshold may be. Even members of Congress (both dems and reps) reacted negatively. It’s pretty telling when our elected representatives themselves say they will have difficulty with the new threshold.

Then we had the expected submission of legislation to counter those new rules. This is just one of the at least three bills since presented. See also H.R. 5813 and S. 233 / H.R. 465. These bills would defer the implementation date, phase in the increase in the salary threshold, or allow private employers to offer comp time in lieu of overtime, something that is not legal at the present time.

Now we have two lawsuits filed. One by 21 states, and the other by the US Chamber of Commerce and over 50 business groups, including the National Association of Manufacturers, the National Retail Federation, National Automobile Dealers Association, and the National Federation of Independent Business.

The suit filed by the states charges the Obama administration with overstepping its authority in rewriting the rules, and claims the change will place an undue burden on state budgets (see the complaints of members of Congress above!).

It also points out that the DOL’s focus on the salary threshold ignores the importance that the FLSA places on an employee’s duties stating that the emphasis on salary defies the statutory text. In addition, the automatic increase factor is in violation of federal law that requires that such regulations go through both notice and comment periods before implementation. Their argument is that each increase is considered a new rule and should go through the same process. In fact, the DOL’s position in 2004 (the last time the rules were updated) was that indexing is prohibited without specific Congressional authorization – more ammunition that the new rules are an overreach of authority.

The argument is further made that enforcing such a rule on the states (as employers themselves) infringes on state sovereignty.

As has been argued by business since day one, the states have said that the new threshold will substantially increase their employment costs and force them to cut services or lay off employees.

Many of the same arguments were made in the lawsuit filed by the business groups. In addition, it stated that the costs of compliance will force many smaller employers and non-profits (especially those that operate on fixed budgets) to cut critical programming, staffing, and services to the public. The ability to effectively and flexibly manage their workforces after losing the exemption for frontline executives, administrators and professionals will be lost and millions of employees across the country will have to be reclassified from salaried to hourly workers, resulting in restrictions on their work hours that will deny them flexibility and opportunities for advancement.

I previously described the legislation presented by the Protecting Workplace Advancement and Opportunity Act as veto bait. That’s likely still true, along with the tough road the filed lawsuits have ahead. However, all this points to the widespread discontent with the new regulations, the way they were formulated and the ignorance of the actual effects they will have on real-life businesses, and real-life employees.

Thursday, September 15, 2016

Workplace Microcultures

The subtext you might be missing


We know how important it is to recognize and monitor the culture within our workplaces. We know it can have either a positive or negative effect on our success. I’ve written before about the difficulty in accepting and changing our culture here and here. As the saying goes "culture eats strategy". You can plan all you want, set out your mission, vision and values, but if your workplace culture does not support your strategic plan, it may as well sit on the shelf.

You should also understand that while you, as senior management and HR pros, may set the tone and lay the groundwork for your desired culture, that’s not where it really lives. It lives with your employees, the people who actually do the work. And with any group of people, or multiple groups of people, there will be differences in how things are done. There may be subtexts, or "microcultures" you need to be aware of.

Different departments will have different cultures – influenced by different people. Culture generally refers to a system of shared beliefs, values and norms that shape behavior. You may see evidence of this when you look at the productivity or success between different departments in your company. Much of that can be explained by the microculture that lives within those groups.

And it’s the deepest level of supervision and management that plays a large part in creating these microcultures – the front line supervisor. They are the ones with the most interaction and influence over the most employees. If they don’t know, or support your desired culture, or are working at cross-purposes, that will define your culture.

As I’ve written before, you need to converse with, and listen to your employees, not just your managers, in order to get any real idea of what the culture within your organization is. But you also need to dig into how your front line supervisors and managers are relating to their employees to know what the microcultures are and how to change those, if necessary – or encourage them when appropriate.

How are employees communicated with, how often and how transparent is the communication? Are decision-making processes explained?

Do negative cliques exist; are they allowed or encouraged to exist by neglectful (or possibly even sympathetic supervisors)? These folks will put a negative spin on most company initiatives—but never openly. When a new employee joins the group, they make the effort to induct the newbie into their narrative. Always remember that your employees will be trained in the ways of your company, but who is doing the training?

Do you supervisors play favorites? Do you have employees who always seem to get the plum assignments regardless of merit? Are there folks who never seem to have to play by the rules when everyone else does? 

Who are your supervisors hiring, or recommending for hire? Are they lobbying for their friends regardless of experience and fit? Do they bypass the normal recruiting process for their choice, leaving you with more of the same?

Do you have a leader (at any level) who could win the bad behavior award every month? That bad behavior filters down to others. Pretty soon, it’s simply a part of the culture, defended with the simple phrase "it's just how things are done around here."

Is scapegoating the order of the day to deal with mistakes? Is accepting responsibility for one’s performance non-existent?

On the flip side:

Do you have a department that always seems to get it done, with the least amount of strife and stress? Are they working together, supporting one another and succeeding?

Are these the folks who seem to need the least amount of intervention? 

Are those supervisors known for clearly communicating performance expectations and recognizing staff when good work is done? Do employees know where they stand?

Do the employees within these groups understand and live your mission, vision and values? Do they actually know what your mission, vision and values are?

It’s pretty obvious which microculture you want to encourage. But you have to recognize all the subtexts that exist within your organization in order to shape your overall desired culture.

Thursday, September 8, 2016

When You Have Your Own “Colin Kaepernick”

What to do, what to do….

San Francisco 49’ers player Colin Kaepernick’s decision not to stand for the National Anthem has stirred up a lot of emotion on both sides of the issue. There are those who are vilifying him, and those who are praising him. Much of this debate centers on his right to expression of free speech. Let’s look at this from an employment/HR standpoint (what, you expected something different?).

Yes, we all have a right to our opinions and in many cases; we have the right to express those opinions – publicly. However, a point that I think is being missed in this mess is that this right does not extend to a private workplace. Nope, sorry. It doesn’t. When a person is working for a private company, the First Amendment simply doesn’t apply.

The First Amendment limits only the government’s ability to suppress your speech. Courts have extended this prohibition (in most cases) to all federal, state, and local government officials but have consistently emphasized that the First Amendment’s constraints do not apply to private-sector employers. There have also been several court cases where even public sector employees were found to have been disciplined appropriately and legally for statements they made that were found to be disruptive damaging to the employment relationship or the reputation of the employer.

The 49’ers (or the NFL) could punish Kaepernick if his conduct violated an organizational policy or expectation, and/or caused disruption or put the organization in a negative light. Now, the NFL has already come out and said that players are encouraged to stand during the National Anthem, but are not required. The 49’ers have essentially said the same thing, albeit in a slightly different way: "we recognize the right of an individual to choose to participate, or not, in our celebration of the national anthem." Although, I think their reasoning is a bit flawed, seeming that they think his right extends to the workplace.

If you work for a private employer, or if you are a private employer, you need to know that employees are free to say and do whatever they want. However, they are not free from the potential consequences of that behavior if the employer finds it warranted. 

What should the 49’ers have done? Again, no lack of opinion there. Personally, even though their statement was factually incorrect, I think the probable intent behind the statement was more considered. Taking a "wait and see" approach on such a hot-button issue may be the better route at this point. Simply said, just because you can do something does not mean you should. 

This may very well die down on its own. Or, if the reaction to his protest – by fans (who buy the tickets), sponsors and advertisers - becomes too disruptive to the team or the whole of the NFL, they may change their mind and decide to exert a bit more control.  In other words, it might be a good idea to let the market decide!

Want more info on this topic? Check out these links:

Njlawblog – This interestingly enough, has a slight NFL tie-in. – great article by employment law attorney Jon Hyman – dealing primarily with employees, free speech and social media, but still on point.

Friday, September 2, 2016

Friday, August 26, 2016

Checking References is Still Important

Do you know who you’re hiring?

"Checking references is a waste of time, you never get any useful information", "An applicant is never going to give you the name of someone who will give them a bad reference", "Employers are reluctant to give references". Any of that sound familiar?

If you don’t feel references are worthwhile, you probably won’t get useful information. If your effort is cursory your results will be as well.

However, if you dig deeper, ask better questions (don’t just confirm the applicant’s information) you stand a much better chance at getting information that will either support your decision to hire, or warn you off a potentially bad hire. We all want to make good decisions and being diligent about checking references can go a long way toward getting you to that goal. And remember, you might be held liable for information that was available, but that you didn’t get or consider (negligent hiring?). Some industries and occupations require proper reference checking, but we can all benefit from the effort.

Getting the real low-down on a candidate is really not all that difficult. Specific word choices and the tone and enthusiasm (or lack thereof) with which the reference describes the candidate yield good information. If the tone doesn’t match the words used, that’s a reason for follow-up questions.

Listening for what is not being said is also telling. Once, when speaking to colleagues about another HR pro, I found that the common response I got was that she was "really nice!" Well, that’s great, but can she do the job? What I wasn’t hearing was any comment on her competence and HR knowledge. When I dug deeper, asking specific questions, I got what I was looking for: her experience was lacking. 
When asking about the duties and responsibilities of the candidate’s previous jobs you may find that the he exaggerated about his experience, employment history or education. Did the candidate do what he said, complete the projects he spoke about and hold the responsibility he implied he did? You can also ask about training programs the candidate indicated he had completed. If you don’t hear about skills, knowledge or other attributes you need, ask!

I find it useful to explain the duties of the job the candidate is seeking, and then ask the reference if she thinks the candidate can succeed in that position, or if there are any concerns about the applicant performing that job. 

Just as interviewees hate the "what is your greatest weakness" question (really, who’s going to answer that question honestly?) references often won’t be comfortable with it, either. Instead, I reframe the question. I ask, "If there were one area in which you feel John could improve, what would it be?" 
Always ask open-ended questions that require the reference to describe events, accomplishments, and difficulties. Ask for examples and explanations. Don’t just skim over questions where you get a vague or uncertain answer, probe further, ask more questions, clarify the response.

Finally, making it more of a conversation than an interrogation will make it far easier and more productive. Asking a simple "tell me about Jane" can sometimes open the flood gates and give you a wealth of information. You might be surprised what people will tell you.

Friday, August 19, 2016

Third Party Harassment?

Are we responsible for the guy (or gal) who delivers our water??

Most likely, yes. Third party harassment is prohibited under federal law. The EEOC’s regulations state "An employer may be held liable for the actions of non-employees, with respect to harassment of employees in the workplace, where the employer knew of or should have known of the conduct and fails to take immediate and appropriate corrective action." We all know, or should know, what illegal harassment means in our workplaces and how we should handle it. But are we as familiar when the culprit isn’t an employee? How about a customer, a vendor, a repair person, or a patient or client? 

We’re probably all familiar with instances where a vendor or sales rep behaves inappropriately toward an employee, usually in a not so thinly veiled sexual manner. The occasional one-off may not be actionable, although certainly offensive. However, persistent and severe harassment must be dealt with appropriately.

In 2014, Dal-Tile Corp. found out the hard way. In Freeman v. Dal-Tile Corp., Freeman was a customer service representative who interacted daily with a sales rep of a customer of Dal-Tile. Over a period of three years, she endured some very ugly racial and sexual harassment from him. While she reported the incidents, her employer did not take appropriate action and allowed the behavior to continue. Freeman sued. While the district court initially granted summary judgement to Dal-Tile, the 4th Circuit overturned that ruling and applied a negligence standard to the employer for a hostile work environment.

Another more recent case, EEOC v. Costco gives more weight to the responsibility of employers. For over a year, a Costco employee was subjected to unwanted physical touching, unwanted requests for dates and overly intrusive personal questions from a customer. The court found that "Costco failed to take reasonable steps to stop the harassment, noting that Costco waited more than a year to ban the customer from the store".

What you should do:
  • Review your anti-harassment policy. Ensure it covers third-party harassment; what it is, that you prohibit it, and make clear what an employee needs to do to report such behavior.
  • Train your managers and supervisors. Ensure they understand this is prohibited conduct that they cannot take lightly. Include third-party harassment in your training for employees as well.
  • Investigate any complaint just as seriously as you would if it involved an employee.
  • Act promptly. If your investigation shows harassment occurred take appropriate action that is designed to resolve the problem. You may need to bar a customer or client from your premises or require a replacement for a contractor or service provider. This will be a difficult conversation to have with a customer or vendor, but half-hearted attempts will not solve the problem, just as they don’t when the harasser is an employee.
  • As always, inform the complainant what steps you took, and encourage him or her to report any further incidents.

And remember, the customer (or vendor, client, patient, etc.) is not always right.

Thursday, August 11, 2016

Pokémon Go(ing) in your Workplace?

Love it or hate it, it’s here

For the record, I’m not into this game or even understand the appeal (and I’m ok with that), but apparently millions of others are really into it. According to a recent Forbes poll, 69% of adults say they play the game at work. I’m not entirely sure you can claim that 69% of people actually work at work on any particular day (ok, that might be an exaggeration). But having that many folks playing during the workday could be a bit of a problem. While playing during a lunch break might be fine, running around catching imaginary creatures when you’re supposed to be working is certainly an issue.

If you don’t know, Pokémon Go is like a virtual scavenger hunt which lets players hunt for 151 different characters on their phones using augmented reality. In other words, rather than sitting on the couch and collecting the characters, (or sitting at their desk working) players have to explore the real world with smart phones and find them at coffee shops, grocery stores – and yes, even their jobs.

While it’s too early to have any data on this game, Challenger, Gray & Christmas reveal data that March Madness, for comparison, results in productivity slowdowns that result in $1.3 billion lost per hour, while Cyber Monday losses are a much smaller $450 million.

Causing disruption at work is one issue with the game, but there have been numerous incidents of some rather serious mishaps that occurred because the player(s) was too absorbed in the game to recognize danger.
  • 40 people were playing the game in a cemetery near Scranton, PA, and didn’t realize the gates had closed and they were locked inside. Probably not what they had in mind for the evening.
  • In Bangor, Maine, a man who was playing on the street got into an argument with a woman driving a car, and the woman then hit him with her car.
  • Illegal immigration probably isn’t part of the game, but several Canadian teens found themselves detained  for illegal border crossing.
  • Shayla Wiggins found a dead body, close to the Wyoming Highway 789 Bridge. Wiggins told CNN she was trying to get water Pokémon.
  • There have been several reports of people being robbed while playing, like these stories of "Pokémon GO" players in Maryland and on Long Island.

Hopefully, you won’t be experiencing this type of issue in your workplace. But you might face some challenges keeping productivity in line and even working to ensure your company security isn’t compromised.
In many senses, controlling this type of workplace distraction is no different than others. 
  • Make sure your social media policy (you have one, right?) rules apply to games like Pokémon Go. Define social media in your policy broadly. For those employees who are issued company phones, you may even want to have your IT folks limit the ability to download certain types of apps.
  • Write and/or review policies dealing with use of personal devices and personal use of the company internet during work time and the need to limit the drain on productive work time.
  • Review policies and remind employees of the dangers of distracted driving (or even distracted walking!). Players may be prone to bumping into others, walking into walls, and slipping and falling, which can lead to preventable injuries. 
  • Apply your policies, and apply them consistently.
  • Should you find that your facility or a nearby area has become a pokéstop, you can put up signage to warn off trespassers. You can even request the removal of pokéstops and gyms if it becomes an issue.
Some businesses are embracing this fad as an easy marketing tool. A great example is Arkansas’ Crystal Bridges Museum of American Art. The museum is finding that Pokémon Go can go a long way to showcase its collection to the general public.
"As general admission to Crystal Bridges is free, it will cost you nothing to visit the Museum and rack up your Pokémon captures, and you can enjoy some terrific American art as you go," the museum says. "We only ask that you be careful and be aware of your surroundings as you do battle so you don’t inadvertently back into an artwork or trip up a fellow museum-goer."
Another, possibly somewhat unexpected, positive of the game, is the benefits it’s having with kids on the Autism Spectrum. Now, that’s a win!
We can certainly accentuate the positives of encouraging people to actually get outside walk around and explore their own communities. Just remember to get that project done on time, and don’t walk off a cliff or ram a police car.