Thursday, March 26, 2015

What a Week (NLRB, EEOC, SCOTUS, Congress, ADA, ACA, GINA, PDA and OMB)!

A wild ride!


Actually, I think it’s just the beginning of a very long, wild ride. What does it all mean?

The NLRB’s General Counsel comes out with a report to give employers some guidance on standard handbook-type policies and what the NLRB will view as lawful/unlawful. Big problem? This guidance is more than just a bit inconsistent and contradictory. Not particularly surprising to me, though. The folks at Littler and Jon Hyman at The Ohio Employer Law Blog give us insightful analyses of this……….mess.

As a nice counterpoint, Littler also reports that on March 24, the National Labor Relation Board’s Chairman Mark Pearce and General Counsel Richard Griffin, Jr. came under fire from a group of House members during a budget subcommittee hearing.  Members pressed Griffin and Pearce on recent NLRB policies that will have a significant impact on labor policy and the ability of employers to manage their businesses. It was very interesting that Griffin had to defer to Pearce on several "facts" of Board decisions and was incorrect in at least a couple of statements made during the hearing. Must be tough to keep all these rules straight.

To continue the NLRB theme, in the words of House Education and the Workforce Committee Chairman John Kline (R-MN), "Today, Congress voted to stop an unelected board of bureaucrats from trampling on the rights of America’s workers and job creators." The House, following the Senate, voted to send a resolution to President Obama blocking the National Labor Relations Board’s Ambush Election Rule. We can hope he’s listening and heeds the call Congress has made. Unfortunately, I don’t think he will. It’s going to take more voices, and even louder voices to make the President and other elected officials understand that they’ve allowed various regulatory agencies far too much leeway in their actions. It past time to rein them in.

And, as promised – finally - The EEOC’s much-awaited proposed rule on employer wellness programs, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act may be close. According to Law360, a proposed rule has been approved 4-1 by the Commission, and is being reviewed by the Office of Management and Budget. Once approved by the OMB, the proposed rule will be published, and there will then be a 60-day period for interested parties to comment. It will be interesting to see if the EEOC heeded Congress’ call to action when they voted to relieve employer wellness programs of the burden of potential violation of the ADA and GINA.

And then, the Supreme Court handed down its decision in Young v. UPS, a case dealing with pregnancy discrimination and accommodations. In short, the SCOTUS didn’t really resolve the issue in a way that either side wanted, but presented a "blended" approach that doesn’t fully satisfy anyone. *sigh* I had hopes on this one. Jeff Nowak at FMLA Insights and Eric Meyer over at The Employer Handbook give two of the best explanations of the decision I’ve seen. Certainly, far better than I could explain it! Enjoy. A little tidbit: I do so love that the SCOTUS slapped the EEOC on this one. They deserved it.

Next time, we’ll come back closer to home and see which employment-related bills made it through the Maryland General Assembly, and which have probably died (at least for this session).

Thursday, March 12, 2015

Are Exit Interviews Worth the Time?

How not to devolve into a "whine" and cheese session


We in HR fall into two camps on this question. One, that exit interviews are nothing more than b*tch sessions for the departing employee and won’t yield any useful data. The other camp firmly believes that exit interviews are essential tools that all companies should employ.

I think I’m somewhere in the middle. Certainly, there are those who will only use the opportunity to trash your organization and management and it’s sometimes difficult to glean any reliable information about areas of improvement. But when trying to get actually useful information, I think we fall short. Maybe we’re focusing on the wrong things, and asking the wrong questions. Sometimes, we’re asking the wrong people.

We should be focusing on those we feel are high performing, valued employees. After all, aren’t those the people we most want to stay? If we can determine what’s missing for these folks, we may be able to reboot and prevent others from following suit.

Usually, we start with something along the lines of "tell me why you’re leaving". At this point in the conversation, I think the better question is "What prompted you to start looking for a new job?" It may be a subtle difference, but one that elicits more useful information. Of course, the occasional conversation before the employee resigns to find out why he/she stays can help your organization focus on your strengths, and by contrast, work on your weaknesses.

Another area of exploration should include asking how the day-to-day realities of the job compared with their expectations – how we presented the job in initial interviews, etc. This can help us to better "sell" the job and result in better matches in the future.

A close companion is asking if the employee felt he/she had the necessary tools/resources/support to do the job well. A good follow-up would be to ask what tools and resources they feel are important to success in the position they’re leaving. Information gained in this line of questioning can be applied to your search to fill the vacant spot.

Finally, it may be useful to ask two additional questions:

  • Would you recommend this organization to your family and friends? Why or why not?
  • What does your new company/job offer you that encouraged you to accept the offer?

Most employees don’t really like exit interviews. They’re uncomfortable, they sometimes fear what they say will result in a bad reference. Assure them that the information is used only in the aggregate, is not individually identified (unless of course, issues of illegal behavior come up!) and is used to help the company be better. Making this more like a conversation than an "interview" is going to help the employee to feel more comfortable and has a better chance of making this process worth your time.

Thursday, March 5, 2015

Shhhhh! Who’s Listening?

Or, knowing when to shut up!


Careerbuilder conducted an interesting survey recently. It seems that many of us are rather indiscriminate when having work-related conversations that should be kept confidential. Apparently, some of us are guilty of the "invisible person" syndrome. That’s where we disregard (whether intentionally or unintentionally) the presence of certain people when engaging in conversations about sensitive topics, as if they weren’t there. Not only is that rude to those people, it’s dangerous to our business.

The folks at Careerbuilder surveyed over 500 support staff employees (custodians, janitors, mailroom attendants, security guards, receptionists, facilities maintenance workers, housekeepers, administrative assistants or maintenance workers) and found that many of them have been privy to some pretty hot information – info no employee outside of management should be hearing in this way – and info I’m sure many of them never wanted to know!

What did they hear? Take a look:

Conversations around layoffs or firing someone: 35 percent
  • Conversations around someone’s compensation: 22 percent
  • Conversations around romantic relationships between co-workers: 20 percent
  • Conversations around setting up another co-worker to fail: 11 percent

Wow. And that’s just a few of the topics.

As the survey notes, sometimes it’s not what is heard, but what is found. I think protection of confidential information needs a little more thought for some of us. Here are just a few of the items:

  • A list of employee salaries
  • Layoff and compensation paperwork
  • Upcoming reorganization diagram
  • A predetermination request for a breast augmentation
  • A pregnancy test
  • A letter from the boss’s mistress
  • The boss’s ex-wife’s bank account statement
  • An employee’s tax return

Ten percent of the support staff workers found something lying around that could get another employee or the company in trouble. 11% say they have knowledge about an executive or co-worker that could be grounds for that individual’s dismissal.

In today’s highly competitive (and increasingly litigious) workplace, confidentiality is important for several reasons. Concerning employee information, many states have laws covering the confidentiality and disposal of "personal identifying information" (e.g., an employee’s Social Security number, date of birth, etc. The Americans with Disabilities Act (ADA) requires employee medical and disability information be kept confidential and limits access to those employees who have a "business need-to-know". The Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulates healthcare providers’ and other covered entities’ use and disclosure of individually identifiable health information (known as Protected Health Information). The Immigration Form I-9s must also be protected from accidental disclosure. There are many laws, rules and regulations covering the inadvertent release of private information (data breaches) and the consequences of such breaches can be severe.

Confidential management information may include employee relations issues, disciplinary actions, impending layoffs/reductions-in-force, terminations, workplace investigations of employee misconduct, etc. While disclosure of this information isn’t necessarily "illegal," it is almost always sensitive and unintended disclosure can lead to loss of employee trust, confidence and loyalty. In turn, it will almost always lead to a loss of productivity – if for no other reason than the potential for rumors and gossip.

Finally, we have the importance of company proprietary information or trade secrets. This is information that’s not generally known to the public and wouldn’t normally be available to competitors. Leaving information related to manufacturing processes and methods, business plans, financial data, budgets, client/customer lists, employee lists and salaries, etc., lying around is like leaving the door to the kingdom open to your competitors.

So, is it time for your organization to review its policies and practices (especially practices) concerning how confidential information is handled?