Wednesday, June 26, 2013

Don’t be Paula Deen Enterprises

Harassment and Discrimination in the Workplace

Holy cr*p! Who lets these people out in civilized society? You can’t turn on the TV or fire up your computer without seeing the reports of what went on in the deposition that Ms. Deen gave in a sexual harassment and racial discrimination claim former general manager Lisa Jackson filed against Paula Deen, her brother Bubba Hiers, and their restaurants. But have you actually read the deposition? You simply must read it, here: Paula Deen Deposition. It will set your hair on fire!

While denying that any harassment or discrimination took place (or saying she couldn’t believe her brother would do such things), Ms. Deen made some incredible statements. I really can’t wait to see if this makes it to court. I think she’s toast.

So, let’s break this down, in terms of what should, or shouldn’t happen in the workplace:

Sexual Harassment
Among the claims are that brother Bubba Hiers would download and view pornography at work, kissed and spit at Jackson’s face and asked her to bring photos of herself when she was young for him to look at.

He also is alleged to have made repeated comments about other female employees' sex life. After one female employee got dentures, Hiers allegedly said "I bet your husband is going to like that."

Bubba Hiers admitted to showing pornography at work in his deposition. He also admitted to using the N word, at work.

In her deposition, Deen stated that saying sexual things or making sexual jokes to employees or in front of other employees might be ok, depending on their "comfort zone". She also stated, "just because he’s got a sense of humor does not make him a bad person or incapable of running a business." Questioned as to whether jokes of a sexual or racist nature are in poor taste at a place of work, she responded, "We have all told off-color jokes … Every man I’ve ever come in contact with has one."

Racial Harassment and Discrimination

When asked if she thought jokes containing the N word would be hurtful, Deen said she was unsure. "That’s kind of hard. Most — most jokes are about Jewish people, rednecks, black folks. Most jokes target — I don’t know. I didn’t make up the jokes, I don’t know," said Deen. "They usually target, though, a group. Gays or straights, black, redneck, you know, I just don’t know — I just don’t know what to say. I can’t, myself, determine what offends another person." (Emphasis added)

When asked by Jackson what the set up would be for her brother’s wedding in 2007 (which Jackson was handling), Deen allegedly answered: "Well what I would really like is a bunch of little n***ers to wear long-sleeve white shirts, black shorts and black bow ties, you know in the Shirley Temple days, they used to tap dance around… Now, that would be a true Southern wedding wouldn't it? But we can't do that because the media would be on me about that."

Deen denied this accusation. When asked during the deposition if she might have slipped and used the word, she said, "No, because that’s not what these men were. They were professional black men doing a fabulous job." But then, when asked why nicely dressed black men would be a part of a "Southern plantation wedding," she said it reminded her of southern America "before the Civil War, during the Civil War, after the Civil War." When reminded that black men serving white people during that time were slaves, she agreed, but said it wasn’t only black men, but "black women" and she "did not mean anything derogatory" by her comments.

Deen said that she and her husband taught her children not to use the N-word in a mean way. Asked when exactly that word might be used in a ‘not-mean’ way, she said either when repeating what you may hear "black people" say in the kitchen or when used in a joke.

Jackson complained she suffered from "violent behavior by Bubba Hiers, violent behavior that included sexual harassment as well as racial harassment, assault, battery and other humiliating conduct" on employees she managed. It was also alleged that black employees were treated more harshly and paid less than while employees.

According to the complaint, Deen and other managers at her companies ignored Jackson’s attempts to discuss Hiers’ behavior.

Interestingly enough, at some point before the harassment and discrimination charges were filed, Paula Deen Enterprises hired a management consultant firm, MackWorks, who came in and did an audit of management practices, it appears. They interviewed management and employees at both restaurants. According to the deposition, the results of that audit were given to Ms. Deen and it was recommended that her brother be removed from his position in the company. Ms. Deen states that she felt MackWorks was unduly influenced and biased by Ms. Jackson and another high level company employee. She further stated that she didn’t have confidence in the audit’s results. However, on MackWorks website under their "Success Stories" is a quote from Paula Deen:

"Tanya Mack and her team at MackWorks has worked closely with Paula Deen Enterprises for the past four months. They came to us with a sterling reputation that continues to shine. Within a few weeks, her team was able to quickly assess our areas of concern accurately, build a quick rapport, and design a prioritized plan. Tanya and her team quickly began and continue to effectively integrate a set of human resource processes and procedures. It is with great pleasure that I offer my full recommendation for Tanya Mack and MackWorks."

Apparently, she forgot about that quote during her deposition.

Most reasonably intelligent, aware people know what should have been done, but here’s the rundown:

Jokes, comments, photos, cartoons, etc., etc., etc. of a sexual nature should never be allowed in the workplace. Can you say hostile work environment? The same goes for such things of a racial or cultural nature that may be, and probably will be, derogatory in nature.

  • Have a policy that explicitly prohibits this type of behavior. Spell it out; include both harassment and discrimination. Make sure it has teeth, and make sure there are multiple people to whom an employee can bring a complaint. Deen’s company didn’t even have an employee handbook, let alone a policy. And, the only people employees could report issues to were Deen and her brother (lovely!).

  • Consistently enforce the policy; regardless of the person violating it. Include appropriate discipline for violating the policy; in many cases, if the complaint is found to be valid, termination of the violator may be the only acceptable action. Even one instance of violent physical contact, or one use of a particularly offensive word (i.e. the N word), should be grounds for immediate termination.

  • Disseminate the policy, and provide training to employees and supervisors. Expect -- no, demand compliance.

  • Always investigate when you receive a complaint. An outside investigator may make sense if you have no one internally who can properly conduct an investigation, and especially if the complaint is against a high ranking employee of the company.

  • Deen’s comment about not knowing what may offend others is preposterous. If you own a business, and have employees, you damn well better know what may offend other people! Educate yourself. If you have a human resources function, listen to them. It’s what they’re trained for. If you don’t have a human resources function, consult an attorney to guide you through creating policies, procedures, training requirements and documentation (handbooks as well as disciplinary actions for violators).

Reading the deposition, it’s sadly clear that Paula Deen has no clue that what she and her brother did was wrong, both morally and legally. It appears she’s only now apologizing because she got caught and her business and livelihood are now at stake. Don’t be Paula Deen Enterprises.

Thursday, June 20, 2013

Help Wanted

Unless you’re unemployed?

For a bit over a year now, there has been a fair amount of noise out there claiming that businesses are discriminating against applicants that are currently unemployed. The most strident of the articles I’ve seen is one that appeared in the Huffington Post, titled Unemployment Discrimination Puts Long-Term Jobless At Huge Disadvantage: Study

The article starts with the statement: "Businesses would rather hire somebody with no relevant experience than hire a person who has been unemployed for a long time, according to new research by Rand Ghayad at Northeastern University." The study involved creating fake resumes and applications and submitting them to online job postings. However, later in the article, results from this study are revealed, and say "Using an online job board, Ghayad sent 4,800 resumes to 600 job openings across the country. The end date of a fake candidate's previous job showed how long a person had been unemployed. Candidates with relevant experience who were unemployed for a short time had a callback rate of roughly 16 percent. Recently unemployed candidates with no relevant experience had a callback rate of roughly 9 percent, while candidates with good experience who had been unemployed for a long time had a callback rate of roughly 3 percent."

Another recent study, along the same lines, from HR Executive, Is There Really Discrimination Against the Unemployed? showed similar, and interesting, results. (This study also used a much larger sample than the study cited by the Huffington Post and had a decidedly different bent.) "As for the question of how unemployed status affected the likelihood of getting that positive response, surprisingly, the call-back rate was slightly higher for those who had just been laid off than for those who currently had a job." 

This study further indicates what happens after one is unemployed for more than a month. After this period of time, the probability of getting any positive response from employers falls sharply and declines further with each month, hitting a plateau after about eight months. Those people are about half as likely to get a positive response, compared to a person who was just recently laid off, for instance.

What does say about discrimination against the unemployed? It may tell us that there isn’t a red flag about being unemployed so much as a possible stigma to being unemployed for long periods of time. Simply another reason for job seekers to take some sort of job, or engage in activities to keep their skills fresh, than simply to wait for what they believe is the best job to come along.

One issue I have with these, and other earlier studies, is they really all looked at a very small sample of the literally hundreds of thousands of online job postings that appear every week. It also appears to me that they cherry picked those ads that fit their perception. Only a relative few of the ads actually stated that the currently unemployed would not be considered. Some of the ads cited included language that was designed to attract the "passive" applicant. Passive applicants are those who are currently employed, but not actively looking for a new position. For many businesses, those are often the most desirable candidates.

The important point here, I believe, is to understand why any business might shy away from considering the long-term unemployed for hire. The simplest and most direct is that the longer someone is unemployed, the larger the likelihood is that the applicant’s skills have eroded, or are not up to date. Why would you hire someone who is going to take far longer to ramp up in the position over someone who has more recent skills? Another reason is just what the HR Executive article states, that those who are still unemployed after a long period of time, may be so for a very good reason.

Of course, that’s not always the case, is it? Hiring managers and HR professionals look at all this information when considering a candidate. Has the candidate made efforts to productively fill his time while unemployed (this is just plain common sense, and critical)? Maybe taking courses (even online courses) and other activities that show an employer he’s kept up in his field. What was the reason the person became unemployed? Yes, we do take into consideration the current state of the economy and the job market. We know, better than most, that it’s tough to get a job during recessions, and it can actually be even tougher to fill many jobs during a recession. And the reason for that is that many of the unemployed do not have the skill sets we need. That may be why they were the ones to be laid off to begin with.

Many, many businesses have absolutely no issue with unemployed candidates at all. In fact, that can be an advantage simply because the business can hire someone quicker, without having to wait for the candidate to give notice to their current employer. Saving that time can be an important motivator, all else being equal. If I’m faced with two comparably qualified candidates and one can be ready to start this week, while I may have to wait up to a month for the other, chances are I’m going with the person who can start now.

According to an article by Jeffrey Lax writing for SHRM, in 2011, a significant part of President Obama’s proposed job stimulus plan involved federal legislation that would have provided broad protection from discrimination for unemployed job seekers. When the law failed in Congress, more than 15 states submitted bills to provide protection for unemployed job seekers.

Unemployment-discrimination laws have now been enacted in New Jersey, Oregon, the District of Columbia and New York City.

Concerning the New York City law, which is particularly wide-reaching and restrictive, Mr. Lax offers "Although well-intentioned, New York City’s unemployment discrimination law fails to provide enough guidance to employers and is so broadly worded and far-reaching that it may lead to even more inefficiencies in the workplace from employers who may feel unable to collect legitimate and relevant information about unemployed applicants regarding employment gaps or the circumstances regarding terminations from previous jobs. It also may prevent an employer --even in rapidly changing industries-- from hiring an applicant with more recent experience where he or she is competing with an unemployed applicant with less recent, but more overall, experience."

Wow. Way to hamstring businesses in their right to find the best person for the job. It may also open up other liabilities. If we can’t ask why someone was separated from a previous job, or even ask if they were separated, how can we perform adequate due diligence in background screenings? Are employers opening themselves (as a result of these laws) to claims of negligent hiring if we can’t find out the applicant engaged in dangerous behavior? Or just to simply find out if they have the skills to perform the job?

At Congress’ request, the EEOC held a public meeting in February 2011, which included testimony from a wide range of speakers. During the hearing employment attorney James Urban and Society for Human Resource Management representative Fernan Cepero said they were unaware of any widespread recruiting practices that involved excluding the jobless.

All in all, I think the hue and cry, and the legislative "fixes" are simply solutions looking for a problem. And, creating yet another protected class and basis for legal claims of discrimination is not the way to grow jobs and our economy. Is it not wiser to focus governmental efforts on finding ways to make it easier and more affordable for out of work job seekers to gain new and probably more marketable skills? To me, this seems a better path than making villains out of employers trying to find the best people for the job.

Thursday, June 13, 2013

Privacy in the Workplace

Are you monitoring your employees?

Privacy issues are splashed all over the news recently. The IRS, the NSA, Google. These have been hugely controversial stories related to personal information of US citizens balanced against national security (at least in the case of the NSA) and are but one side of an ongoing discussion about privacy issues, whether personal, public, or in the workplace.

As employers, we have to be risk managers. We have to protect our product, our service, our customers and our employees, from unwanted breaches. What goes too far and how do we make sure we don’t cross that line? Some businesses monitor employees’ use of company resources (internet usage, email, phone use, etc.) on an ongoing basis; others only when a potential problem or threat becomes known. We each have to make decisions, based on our company’s needs and how critical it is to our mission and bottom line, whether to monitor any particular activity or communication.

The reasons for monitoring employees’ work, communications, etc. vary and can include:

  • From a security standpoint, we wouldn’t want our employees to send out confidential or proprietary company information to unauthorized people, even if by accident. Finding out quickly if it’s happened can often give your company time to mitigate the damage.
  • Risk of claims of harassment, discrimination and bullying are becoming more and more apparent. Discovering such activity allows you to address it early and effectively.
  • Productivity is key to every company’s bottom line. Your employees shouldn’t be spending inordinate amounts of time browsing on Facebook or any other non-work related website during work hours.
  • Downloads and streaming music and video suck up bandwidth and if you need the network for important business you can find these activities can slow down, or even halt, access for the real business of your company.
  • Unauthorized or inappropriate downloading and web surfing can open individual computers and your network to viruses. Removing them is time consuming and possibly expensive, if you outsource your IT function. Viruses and malware can come from anywhere, so you could consider safeguarding your company’s system by using employee monitoring software.

When implementing a monitoring practice, whether ongoing or situational, you should do the following:

1. Develop written policies
It's critical to develop a policy on Internet and device usage that specifies allowable and prohibited activities. Set rules for acceptable use of email, instant messaging, social networks, blogging and Web surfing, as well as for downloading software and apps. Incorporate your harassment and discrimination policies into internet/email policies. Specifically limit or prohibit use for personal business. Require that all work computer, email, etc. passwords be submitted to an appropriate party (IT manager, supervisor, etc.). An overall technology policy, one that an employee signs upon receipt, is highly recommended.

2. Inform your employees
Explain the limits on employee privacy in the workplace and the fact that monitoring will occur. Letting people know you're watching can have an important deterrent effect; and reducing their expectation of privacy can go a long way toward protecting you if you ever have to take action against an employee for activity of this nature. Explaining why you might be monitoring their computer usage or email is encouraged as well. Transparency is important.

Encourage employees to keep private communications to home computers and personal smartphones.
3. Use technology tools
You may decide you want to filter or block some Web content, such as porn and hate sites. Some businesses have decided to block all, or most, social media sites. You would need to carefully examine both your overall motivation and your company culture before doing this. Prohibiting all personal use of computers and email may not be feasible or reasonable. There are many other technological tools to use (key loggers, etc.) that may be useful to employ, as well, either on an ongoing basis, or an investigatory basis.

There are some legal restrictions on a business’s ability to monitor such employee activity. The primary restrictions would be the Electronic Communications Privacy Act of 1986 (ECPA) (18 U.S.C. § 2511 et seq.), and state and common law protections against invasion of privacy. The ECPA is the only federal law that governs the monitoring of electronic communications in the workplace and is an amendment to the federal Wiretap Act. The Wiretap Act restricts the interception and monitoring of oral and wire communications, the ECPA extended these restrictions to electronic communications such as e-mail.

The ECPA does contain a "business purpose exception," which permits employers to monitor oral and electronic communications as long as the company can show a legitimate business purpose.

Writing for SHRM, Teresa A. Daniel, JD, PhD, founder and principal of InsideOut HR Solutions PLLC, notes that the ECPA contains a loophole that may limit employer liability for certain methods of monitoring. "The act’s definition of "electronic communications" expressly applies to the transmission of such communications and does not include the electronic storage of such communications. Therefore, courts have distinguished between monitoring electronic communications such as e-mail messages while they are being transmitted versus viewing e-mails while they are in storage. Viewing stored e-mail is similar to searching through an employee’s papers and files. Several courts confronting this issue have found that monitoring electronic communications after transmission does not run afoul of the ECPA."

States can and have imposed stricter limitations. In Connecticut, employers must provide advance written notice that specifies the types or methods of monitoring. In addition, several state constitutions, including California, Florida, Louisiana and South Carolina, guarantee their citizens a right to privacy. Employers in these states need to take additional steps to reduce or eliminate employees’ expectations of privacy with respect to electronic information and communication in the workplace.

Monitoring Computer Usage, E-mail Text Communications
The advantages of using electronic communications are many and obvious. However, employee abuse or misuse can place companies at risk for legal liability and breaches of data security. Employers can face claims of sexual harassment, discrimination, defamation, copyright infringement and other illegal or improper conduct. (Yeah, emailing those inappropriate jokes can cause trouble!) Knowing about and being able to stop this type of activity can help you avoid serious legal ramifications.

Be aware that when employees access personal, password protected email such as on Yahoo, Gmail, etc., your ability to track or monitor may be limited, even if done from a company-owned computer or device.

Telephone Communication

The federal Wiretapping Act prohibits the interception of stored voice-mail messages, as well as live telephone calls.

Employers may monitor employee conversations with clients or customers for quality control. Some states require employers to inform the parties to the call -- either by announcement or by signal (such as a beeping noise during the call) -- that someone is listening in. Other states, including Maryland, New Hampshire and Pennsylvania, require the consent of all parties to the recording or monitoring of a phone conversation. However, federal law allows employers to monitor work calls unannounced.

An exception is made for personal calls. Under federal law, once an employer realizes that a call is personal, the employer must immediately stop monitoring the call. However, if an employee has been warned not to make personal calls from particular phones, an employer might have more monitoring leeway. Also, if the employee specifically consents to unlimited monitoring of both business and personal calls, the law allows you leeway.

Again, the best practice here is to ensure employees know monitoring may occur. 

Social Media Sites

At last count, there were 8 states that passed laws prohibiting employers from requiring employees to turn over passwords to social media accounts. In general, I see no valid reason for most employers to want to actively monitor their employees’ use of social media websites on an ongoing basis. Having said that, there will be times when you become aware of inappropriate postings and want to take some action based on those postings, and therefore want to monitor on an investigatory basis. Beware, and be careful. The NLRB is hot into ruling on cases of employers taking action based on what employees post on such sites as Facebook or Twitter. It doesn’t mean you have no rights or options, but must navigate this route carefully. As I’ve said many times before, if someone is posting questionable or inappropriate things on public sites, one of their co-workers will inform you, one way or the other. So, you may not really have to bother monitoring in this case!

Thursday, June 6, 2013

Rejected: What should you tell a candidate who is not selected for the position?


When you’re responsible for interviewing and hiring, or responsible for informing candidates of the hiring decision, deciding what to tell those who didn’t make the cut can be one of the hardest parts of this role. What you say may vary depending on whether the candidate is internal or external.

Dealing with persistent applicants you have no intention of interviewing is also one of those things we dread, but one that we run into frequently.

So, how do you handle these situations?

You don’t want to discourage internal candidates from seeking new challenges or a way up the ladder. Internal growth opportunities can be powerful motivators for retention and overall job satisfaction. But if the internal candidate is simply not ready for that next move, being honest about that, and then offering constructive feedback on development needs and areas of improvement will benefit both the employee and your company. Being rejected for a job you want is frustrating enough for anyone, but not getting an explanation from your current employer can be very demoralizing. Additionally, if you can finds ways for that employee to effect that development or improvement so he/she can be better positioned for future growth, you will have gained so much more. Are there training opportunities that the employee can access? Internal development programs or even tuition reimbursement are good ways to help your current employees develop into long-term productive team members.

Another way to offer employees a way to improve both their promotional value and their job satisfaction is through job enrichment. This is a technique that increases or broadens the level of responsibility, authority, autonomy, and control over the way the job is accomplished. Having that additional control can add a large measure of satisfaction. Job enlargement is another method often accomplished by adding related tasks to the position that can help add variety. Of course, a risk of job enlargement is that the employee may feel you’ve simply added more work to his load without any real benefit.

The key to "rejecting" internal candidates is to give them something to work with, something they can hang their hat on.

Deciding what to say to external candidates may seem to be easier. Giving a neutral "we’ve chosen someone who better meets our current needs", or "we’ve decided to continue our search" is at least consistent, and prevents arguments from the job seeker wanting to convince you to hire her; and it relieves us from being a career counselor to people we don’t know. In part it depends on how much help you want to offer. You might want to tell the candidate he didn’t get the job because he answered his phone during the interview or because she wore an off the shoulder blouse and flip-flops. Or, letting him know his responses to interview questions didn’t highlight the leadership qualities you seek. This approach can be helpful, especially for younger job seekers just entering the job market. But, it can also backfire on you if he wants to debate your reasons. You’re trying to help, but he doesn’t want to listen. It’s a gamble, sometimes worth it, sometimes not.

Something about which I feel very strongly is that if someone has been interviewed, that person deserves to know the outcome, one way or the other. In all my years in HR, if you interviewed and weren’t selected, you received a letter, letting you know you weren’t selected. Personally, when I’ve been in a job search, I hated to be left hanging; so I make sure those I interview aren’t either.

However, it’s just not possible to respond to everyone who applies for a position. Some businesses will get hundreds of applications per opening. There’s just no way it makes sense to contact all of them if they were weren’t chosen for further consideration. Applicants need to know this, and understand that if we spent the time to do this, we’d never actually have time to hire anyone, or get anything else done, either. If you’ve applied for a position and haven’t been contacted for an interview, please don’t continue to call, or keep applying for the same position over and over. Just because you applied, does not mean you are entitled to an interview. We simply can’t interview, and simply can’t hire, every single person who applies! If you stalk, your chances of ever being interviewed in the future grow very slim. That’s the type of applicant we remember, and not in a good way. In a way, applicants need to decide how to respond appropriately, or not to respond, as much as we do.