Thursday, December 22, 2016

Worst Holiday Gifts Ever!

Leave the coconut bra at home, please


It’s been awhile since I highlighted a survey from CareerBuilder, but I thought this one an appropriate and appropriately light-hearted one to leave you with this holiday season.

Workplace holiday parties – a great example of something we all love to hate – can be stressful to plan and carry off without offending someone. We all try to make them as fun as possible, and some sort of gift exchange is often part of that effort. However, I guess we still need to work on this!

CareerBuilder's annual survey is out:

Most Unusual Gifts

Traditional holiday gifts are still office regulars: ornaments, gift cards, books and candy, but some workers may not know where "the line" is when it comes to holiday gift-giving at work. The following are among the most unusual presents workers received from co-workers:

  • Two left-handed gloves
  • Coconut bra
  • Jar of gravy
  • A fake lottery ticket
  • A real stuffed duck
  • Toilet paper that looked like money
  • Post-it Notes
  • Dish detergent
  • A pen holder that looks like a crime scene victim
  • A comic book of an obscure movie
  • A handmade ornament for a sports team the recipient had never heard of
  • A singing chicken
  • A whip

Merry Christmas and Happy Chanukah!!

Thursday, December 15, 2016

What Will Banning Salary History Questions Accomplish?

Probably not what is intended

Philadelphia just passed a law banning employers from asking applicants about their prior salary history. New York City banned it for city agencies’ hiring practices, and Massachusetts banned it for all employers this past summer.

The rationale behind these bans is that women and minorities have historically been paid less than men and when employers base salary offers on past history, that pay discrepancy is continued over and over again. The theory goes that if an employer does not know the applicant’s previous salary, it will base its decision on factors more relevant than past pay history.

Will this close the wage gap? While it may accomplish that in some (few?) cases, the answer really goes back to what actually causes the wage gap. I explored this in a previous post. When you look at the earnings of men and women with the same job title, at similar companies with similar levels of education and experience, women still get paid less, but the pay gap is much narrower. A recent study by Glassdoor, for instance, found women earned 95 cents for every dollar their male colleagues doing the same job were paid.

This argument also assumes that employers routinely use past salary history as a primary determining factor in deciding what they will pay a new hire. I submit that this is not the case for most employers. It’s true that this information is often used as one factor among many in this decision (along with experience, education, skills, company budget, etc.) Previous salaries can be an indication of level of experience, scope of responsibility and other factors that may not be indicated by job title alone. Further, a job title at one company is not necessarily indicative of what a job with the same title entail at another company entails; salary can help clarify those differences.

Having said all that, will these laws help at all? What effect will they have? While I’m not a proponent of government-mandated one-size-fits-all employment laws, it may be time for more businesses to rethink their reasoning and use of this question. 

I know most applicants will rejoice if they don’t have to face this question in an interview. It’s uncomfortable at the least, and feels like an invasion of privacy at worst. And in the end, shouldn’t be used as the sole determinant of what their salary offer should be.

A company decides what a particular function, and a job within that function, is worth to that company. That decision may take into account the company’s budget, its compensation strategy (to be at, below or above market), and the applicant’s education, experience, skills and other qualifications. It shouldn’t really matter all that much what the applicant’s salary history is – after all, if a company can only pay $60,000 for a job, is the fact that the applicant previously made $75,000 all that relevant? It’s not going to change the offer to $75,000 if the budget won’t allow. On the flip side, looking for a "bargain" if you find that an applicant previously made less than what you have decided the job is worth is seldom a good move. If the applicant is a good fit with all the relevant experience and qualifications, should it really matter if he/she made less in the past?

On a related topic, I do find it not only annoying, but decidedly counterproductive when companies won’t reveal the salary range for a position they’re trying to fill. The recruitment process is difficult enough for both the company and the applicant; why not cut through some of that crap and save yourself – and your applicants – some time and stress?

Wednesday, December 7, 2016

DOL Appeals Overtime Rule Injunction

And the beat goes on (and on, and on…)

This is becoming an almost never-ending saga. So, the U.S. Department of Labor (DOL) filed an appeal with the 5th U.S. Circuit Court of Appeals December 1 against the injunction put in place the week before blocking the new overtime regulations. The DOL has since requested that the court fast-track that appeal. However, even if the court agrees to expedite the schedule, it won’t take any action until at least February; after President-elect Donald Trump takes office.

The DOL states in its filing that that the federal district court judge’s injunction stopping the rule "rests on an error of law and should be reversed." Judge Mazzant had called into question DOL’s authority to establish a salary-basis test for overtime eligibility under the Fair Labor Standards Act (FLSA). The answer to that, I guess, will be litigated in the court during this whole legal process.

But what does this mean and where does it leave employers? With a severe case of whip-lash? I guess that answer really won’t suffice, will it?

If you were dragging your feet and had not made any changes (raising salaries above the threshold or converting previously exempt positions to non-exempt), it means you don’t have to do anything right now, if you choose. One caveat: IF (and this is really an unknown "if"), the court reverses the injunction, the DOL’s rule could be put back into place with a retroactive effective date of December 1. Yikes! Yes, theoretically, it could mean you’ve been in violation all this time and subject to a thrashing (monetarily and otherwise) from the DOL. However, I am quite sure that would also end up in court arguing that it’s unreasonable to hold businesses responsible for not complying with a law that was enjoined by a federal judge.

If you’ve already raised some salaries to above the threshold, you really need to think about the morale issues involved in reducing those salaries back to pre-rule levels. Not to the mention, attempting to explain what the heck happened and deal with the confusion employees are sure to experience. Nothing is ever easy.

Going forward, there are a couple of possible outcomes. When Trump takes office on January 20, 2017, he could withdraw the appeal. That would maintain the temporary injunction and allow the case to be fully heard in court as was originally planned by the two parties who filed the suits. At that point, it will be up to the judge to decide if the DOL’s rule will survive at all.

Or, President Trump could instruct the DOL to withdraw the rule all together. Game over.

While there are some other possibilities involving what might happen if the appeal is heard in the 5th circuit, it seems unlikely to get that far.

I know one thing for sure; the next 4 years will be very interesting in terms of employment law and workplace regulation. I might even use the terms "exciting" or "encouraging", but that may depend on which side of the issues you’re on.

And you thought HR was boring.

Wednesday, November 23, 2016

New Overtime Rule Dead (for now)

Overtime Overheat....

Judge Amos L. Mazzant ruled the DOL’s new overtime rule "unlawful" and granted a temporary injunction preventing the new rule from going into effect on December 1, 2016.

As many of you may know, two lawsuits were filed in opposition to the new rule – one by 21 states, and the other by the US Chamber of Commerce (representing more than 50 business groups). Those two groups together asked for an emergency injunction earlier this month. Judge Mazzant of the U.S. District Court for the Eastern District of Texas granted that emergency injunction yesterday. The new rule would have required employers to pay overtime to anyone earning less than $913 per week (which amounts to $47,476 annually) beginning December 1.

While this is a temporary halt, it allows time for the lawsuits to be heard in full before having the rule go into effect. A big win for business.

For an in-depth and complete analysis of this news, please see Eric Meyer’s post on The Employer Handbook. You won’t find a better explanation of the move and what it might mean for HR pros and your companies.


Oh, and

Thursday, November 17, 2016

When is “Wrong” not Wrong?

So, the furor over Donald Trump’s election continues on a daily basis. Both sides really need to get a grip and move on to more productive efforts.

Having said that, I need to partially revisit a post I made last month. In Overtime Simmer I covered several issues of interest, including a recent appeals court case of a NLRB decision. The importance, as I mentioned in my earlier post, is in Judge Patricia Millett’s opinion, as it relates to numerous other NLRB rulings that allow and therefore condone behavior on the picket line or in other union or union organizing activities that would be strictly illegal in any other workplace setting.

What does this have to do with what’s going on now and the protests against President-Elect Trump? I’m so glad you asked…….

Many of those protesting, as well as the Obama administration, the Clinton campaign and too many other Democrats to count, continue to criticize and condemn Donald Trump for inappropriate things he has said in the past in reference to women, immigrants, and others. And they should condemn those comments. We all should. They say they are now afraid that these comments predict widespread discrimination and harassment. I guess they don’t understand that federally approved discrimination and harassment occur on an almost daily basis. Read on…

Shouldn’t our criticism and condemnation extend to all instances of such behavior? If you listen to some of these folks, maybe not. President Obama and many in his administration have been actively supporting and promoting unions. (Anyone remember the "worker voice summit"? And that’s just one example of the active support and promotion I’m referring to.) How can they actively support and promote a federal agency that allows, condones, and I submit, therefore encourages this same type of behavior – and worse?

It’s wrong to hurl racial slurs at people, it’s wrong to fling sexual or ethnic slurs at people. It’s wrong to sexually assault anyone. We all know this. Or, at least I thought we all knew this. It becomes painfully clear that when it comes to unions and their activities, that there are many, including President Obama and his administration, who do not think those things are wrong. That my friends, is not only the height of hypocrisy, but it is also Just. Plain. Wrong.

I would so love to hear an explanation from these folks concerning this stunning inconsistency.

Thursday, November 10, 2016

What Now, Mr. Trump?


A new sheriff is in town…..

I could almost hear crowds of HR pros jumping up and down on Tuesday night into Wednesday morning at the news of a Trump win. I can imagine many thinking a Trump presidency and a Republican controlled Congress will dismantle some of the more stifling laws and regulations that make HR folks crazy and make managing a successful business very difficult.

But, hold on! Not much is likely to happen in the near term. Remember, the new overtime regs take effect Dec. 1 – long before he takes office. And even if his administration takes aim at those new regs, they will have to go through the same process of proposed rule-making and comment period, before any changes take hold. So, unless either the bills before Congress move before the end of the year (unlikely) or the two pending lawsuits are successful in obtaining an injunction (probably also unlikely) before Dec. 1, we need to continue on course with plans and actions to implement the changes.

As for the future, it’s hard to know what he will be able to accomplish. We know some of what his plans are on issues that will affect the practice of HR, although even that information is a bit sketchy just now. In a continuous review of numerous sources and "experts" that began long before Tuesday’s vote, here’s some of what we might expect (and what we might hope):

Affordable Care Act: President-Elect Trump has often stated his intent to "repeal and replace" the ACA. His plan for replacement provisions include modifying existing laws to allow the sale of health insurance across state lines, and the ability to deduct health insurance premium payments from individuals' tax returns. He has also spoken about making Health Savings Account more available. 

Beyond that, it’s just not known what will happen. Businesses would certainly welcome relief from the onerous data collection and reporting requirements imposed on them by the ACA. And like it or not, or agree with or not, the premium increases and other costs that have been either caused by, or contributed to by the ACA are a burden on both businesses and individuals. It remains to be seen what can or will be done with a Trump-Republican controlled Congress world.

E-Verify: Trump has also stated that he is in favor of nationally required use of the E-verify system. Currently only federal contractors are required to use the system. Some state and local governments have required its use for businesses that contract with those entities. I think this is quite likely to occur, despite the continued deficiencies of the system. Maybe we can hope for more work to actually address those deficiencies if we’re going to be required to use it.

Paid Leave: Trump has proposed ensuring six weeks of paid maternity leave to mothers who do not already receive leave from their employer. His plan is to create a nation-wide plan similar to what is in place in California and administered through the Unemployment system. His proposal has already garnered criticism since it would apply only to mothers and would not be transferable to fathers.

Child Care: Currently, businesses with licensed onsite child care centers can receive a tax credit of up to 25 percent of facility expenditures, plus 10 percent of resource and referral costs, up to a limit of $150,000 per calendar year. Trump has called for increasing this cap. I think this is a great option for those businesses willing and able to offer this service to their employees.

"Blacklisting" rule and other Executive Orders: Another oft-repeated vow has been to cancel every "unconstitutional executive action" enacted by President Obama. This would presumably include this rule as well as others that mostly affect government contractors, but create a slippery slope for the rest of us. As we know, the Blacklisting rule has been at least temporarily stopped by an injunction.

NLRB: One of my more fervent hopes (as many of you know!) will be a reining-in of this activist board. Since there will be at least 2 new management-leaning appointments to the board in 2017, we can be fairly certain they will work toward reversing the many anti-business, anti-employer rulings. Maybe employers can go back to being able to control what happens in their businesses and not have to worry that their employee handbook being rule illegal.

EEOC and other regulatory bodies: The current EEOC chair’s term ends in 2017. It is presumed that President Trump would appoint someone more conservative. A hope would be that all the regulatory agencies would return to enforcing the law rather than attempting to make law and influence public policy.

Supreme Court: Again, it would be expected that a replacement for Justice Scalia will be appointed, and that will affect employment law cases brought before the Supreme Court. We can hope that an appointment will not be an "activist’ but will adhere more to the interpreter of the constitution role.

All in all, I really don’t think we know a whole lot more right now than we did before the election. Time will tell. I do know that if Hillary Clinton had won, we’d need to be gearing up for far more workplace law and regulation. In that regard at least, I guess we can be optimistic.

Thursday, November 3, 2016

Are your Wage Surveys Illegal?


Maybe, if you’re not careful….

Ogletree Deakins has a report on the Department of Justice and the Federal Trade Commission releasing "advice" to HR professionals concerning certain practices – one of which is wage surveys.

While most employers know (or should know) that wage fixing is illegal, many may not understand that "no-poaching" agreements will also be considered a violation of anti-trust laws; the other two practices the advice contains.

I think the most impactful piece of the offered advice concerns wage surveys, though. Many companies conduct both formal (through a paid vendor) and informal wage surveys. Oftentimes, these surveys are conducted for particular geographic areas and even specific to a particular industry. They are not done to price-fix, but to determine their competitive stance in terms of wages and benefits. 

Businesses make a decision (either formally or informally) on whether they want their wages to be below market, at market, or above market. This decision is based on many factors including the company’s budget and resources, the nature of their workforce and the nature and number of their competitors. 

However, the DOJ and the FTC list several provisions of a wage survey that would NOT violate anti-trust laws:

  • it is managed by a neutral third party,
  • it involves relatively old information,
  • it includes information that has been aggregated to protect the identity of underlying sources, and
  • it aggregates enough sources such that competitors will be prevented from linking particular data to an individual source.
    Yikes! Following this advice would make many wage surveys virtually useless. "Old" data is relatively worthless – if you’re trying to determine if you’re competitive how does old data help you today? On the other hand, many wage surveys done informally involve small samples that may in fact, allow someone who cared to dig a little to determine what company it came from, and possibly even which employees the wages pertain to. 

    None of this is helpful to many small businesses who have absolutely no intent to fix wages among themselves, but only hope to make their business as successful as possible and as a result to continue to employ people.

    Circling back to the "illegal agreements", how many times have you been aware of businesses having an informal policy of not poaching from their nearby competitors? Or, how many times have you been aware of an exec placing an irate call to an exec at another company complaining they have been poaching employees? Yeah, it happens. Better think twice about that now. To quote the advice:

    "Such agreements are illegal regardless of whether they are formal or informal, oral or written, and entered into directly or through a third party. Moreover, even in the absence of oral or written wage-fixing and no poaching agreements, "evidence of discussions and parallel behavior . . . may lead to an inference" of an agreement."
    Finally, the two agencies appear to be encouraging (requiring?) HR professionals to report such activity to federal antitrust agencies. Will this be yet another instance of HR liability for business practices over which they may have no control?

    Friday, October 21, 2016

    Why your training doesn’t work

    Are you getting the ROI you expect?

    According to the Association for Talent Development’s 2014 State of the Industry Report, organizations spend an average of $1,208 per employee on training and development. For companies with fewer than 500 workers, that number is even higher, coming in at $1,888 per employee.
    It is estimated that U.S. companies spent $160.0B on training in 2015. While smaller companies spent more per employee, they logged fewer hours of training, 27 vs. 36 for large companies.

    That’s 27 hours per year. It is commonly held that people forget about 42% of what they learn after 20 minutes, after a month, it grows to more than 80%.

    This information gives us a look into explaining why much training within the workplace is not as effective as companies expect it to be.

    One and Done
    Training is often presented as a one-time event. It’s expected that dumping a huge amount of facts and information on participants will have the desired effect of "teaching" them what you want them to know or do. Participants often don’t have the opportunity to put the training into practice, and/or supervisors don’t reinforce the training after it’s delivered. Training content needs to be refreshed and reinforced over time. With no practical follow-up or meaningful assessments, you reach that nearly 90% loss of skills/knowledge of the training topic. How are you going to allow employees to practice? How are you going to provide feedback and assess training success?

    Relevancy Mismatch
    High level theory and information about the importance of strategic thinking, good management principles or the necessity for a harassment-free workplace are great. But trainers often neglect to provide concrete steps participants can take to employ those theories. Employees need to know exactly what to do so they can put training into practice and do their jobs effectively. Training should also teach employees how and where to access facts and information presented for future reference. It ought to help participants get access to websites, manuals, checklists, etc. where such information is put into practical terms. People cannot memorize everything in a one-time session.

    Needs Mismatch
    Often organizations don't take the time to analyze what their training needs are. Figure out who needs training on what topics and what style of training will work for the intended audience.

    Climate Alignment
    Organizations need to set the right climate for learning. Employees are pretty good at figuring out what’s really important by the actions of management. If the organization isn't sending the right signals, people won’t use it. "Walk the Talk" is a relevant concept here. If your employees don’t see company management employing the principles presented in the training, they probably won’t internalize it, either. Having one training session on a topic and then dropping it is a good signal that management doesn’t really place a great deal of importance on the subject.

    Lack of Measurement
    Assessment should be done on a continuous basis, both formally and informally. Supervisory and management staff needs to continuously assess if their employees have learned and are utilizing the training. Measure results to determine if training was effective and when and what type of training follow-up is appropriate.

    Whether it’s hard or soft skills training, staff development is essential – and employees desire continuous learning. Doing it the right way will help ensure the dollars you spend give you the return you expect.

    Friday, October 7, 2016

    Obamacare: Individual Market in “Shambles”

    The news on the financial troubles plaguing the ACA, along with the real-world effects on those people in the individual market continue. Of course, the Republicans are blaming the Democrats, and the Democrats are blaming the Republicans. In reality though, who brought this law into being? Politics aside, the facts are disturbing.

    Health insurers are pulling out of exchanges, the co-ops that were allowed under the original law continue to tank (only of the 23 remaining). Just recently Evergreen Health Care, a co-op in Maryland has made moves to go private – something that originally was not allowed under the law, but was reconsidered in May after several other co-ops failed. And insurance premiums, as well as deductibles and co-pays are still rising at an alarming rate.

    Recent articles detail how the Tennessee and Minnesota state exchanges are in serious trouble. Tennessee’s state insurance commissioner approved premium increases of up to 62% in an effort to save the exchange, saying "I would characterize the exchange market in Tennessee as very near collapse." Minnesota is in similar straits, allowing the health insurers in its marketplace raise rates by at least 50 percent next year, after the individual market in the state came to the brink of collapse, according to the the state’s commerce commissioner. Blue Cross Blue Shield of Minnesota announced it would stop selling health plans to individuals and families in 2017. The company said it was "projecting a total loss of more than $500 million in the individual [health plan] segment over three years."

     While the employer based health insurance market is still quite stable, the individual insurance market "does not feel stable at all," Janet S. Trautwein, chief executive of the National Association of Health Underwriters, told The New York Times. "In many states, the individual market is in shambles."

    Fox news shared this graphic highlighting the premium increases in several states:

    The reasons for all this financial strife are varied – and familiar – as they were telegraphed early on by opponents to the law. You can find more information from these sources:

    Democrats Grow More Vocal About Obamacare’s Shortcomings

    GOP seeks to block ObamaCare settlements with insurers – citing the issues with the "risk corridors" as one reason insurers are leaving the market.

    And then there’s this news from HR Policy on a House hearing critical of the exchanges performance. The hearing cited more evidence from the Government Accountability Office about vulnerability of the exchanges to fraud. Every fictitious application using fake documents the GAO submitted was approved. This is also not new, and has been reported repeatedly in the past.
    While both sides are touting "fixes" ranging from a public option (universal health care) to allowing insurers to sell across state lines to increase competition, to complete repeal, nothing seems to address the whole issue. Recalling the now-famous quote from Nancy Pelosi that "we have to pass the bill so that you can find out what is in it" shows us that not knowing has caused what may have been good intent to become a complete disaster.

    Friday, September 30, 2016

    Overtime Simmer

    And, the EEOC gets helpful, and the NLRB is slammed….


    Last week I wrote about the 2 lawsuits filed to either delay or amend the new overtime rules implemented by the DOL and scheduled to go into effect on December 1 of this year, as well as several bills in Congress to attempt to accomplish similar objectives.

    On September 28, the House passed H.R. 6094, the Regulatory Relief for Small Businesses, Schools, and Nonprofits Act. The vote was 246 – 177. If enacted the bill would delay the effective date of the new rules until June 1, 2017. It still must go through the Senate; and it seems unlikely it will make it to a vote before December 1. Senator Lamar Alexander also introduced yet another bill to phase in the new salary threshold over 5 years.

    President Obama has said he will veto any attempt to delay or amend the new rules. While still a difficult task, the lawsuits filed probably have a better chance to stop the implementation before the effective date.

    Regardless, employers should continue to prepare to comply by December 1, 2016.

    On a more helpful note….

    The EEOC has developed The Small Business Resource Center (SBRC) which is a user-friendly source for information on federal employment anti-discrimination laws. This website is designed for small business to help them comply with the laws enforced by the EEOC. The guides, videos and fact sheets available are said to be in plain language and offer guidance in making employment decisions and other tips. For many small businesses without the budget to have either an HR function in-house or ability to afford frequent consultation with employment counsel, this resource should be quite helpful.

    Lastly, kudos to Judge Patricia Millett for her opinion in the case of Consolidated Communications, Inc. v. National Labor Relations Board. Her comments are of interest not so much in relation to this specific case, but in terms of the NLRB’s penchant for allowing discriminatory and obscene behavior both on and off the picket line. Behavior that would otherwise be illegal in any other workplace setting. I don’t know that any other officer of the court has addressed the subject so completely and so eloquently in the past. Although, in the future, many more should.

    For your reading pleasure, I have included her comments here. (This is very long, but very important, even more so considering the EEOC’s recent comments about how workplace civility should be embraced to help combat harassment. I ask again, when will the EEOC have this conversation with the NLRB?)

    "I write separately, though, to convey my substantial concern with the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes. Those decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace. The sexually and racially disparaging conduct that Board decisions have winked away encapsulates the very types of demeaning and degrading messages that for too much of our history have trapped women and minorities in a second-class workplace status.

    While the law properly understands that rough words and strong feelings can arise in the tense and acrimonious world of workplace strikes, targeting others for sexual or racial degradation is categorically different. Conduct that is designed to humiliate and intimidate another individual because of and in terms of that person’s gender or race should be unacceptable in the work environment. Full stop.

    Yet time and again the Board’s decisions have given short shrift to gender-targeted behavior, the message of which is calculated to be sexually derogatory and demeaning. According to Board precedent, such conduct was supposedly not extreme enough to constitute a "threat." For example, in Calliope Designs, 297 NLRB 510 (1989), the Board ruled that a striker calling a non-striker a "whore" and a "prostitute," and adding that she was "having sex with [the employer’s] president," was not "serious misconduct" and thus was not sanctionable, id. at 521. That same striker repeatedly called a second female employee "a ‘whore’ and told [her] she could earn more money by selling her daughter, another nonstriker, at the flea market." Id. Completely protected, the Board decision said.

    Similarly, in Gloversville Embossing Corp., 297 NLRB 182 (1989), the Board’s ruling deemed it acceptable for a striker to yell at female non-strikers to come see "a real man" and then to "pull[] down his pants and expose[] himself," id. at 193–194. And in Robbins Company, 233 NLRB 549 (1977), the Board’s order required the reinstatement of a striker who "made crude and obscene remarks and suggestions regarding sex, including an invitation to ‘make some extra money at his apartment that night’" to a female employee, id. at 557. See also Nickell Moulding, 317 NLRB 826, 828 (1995), enforcement denied, NMC Finishing v. NLRB, 101 F.3d 528, 532 (8th Cir. 1996) (reinstating striker who targeted a non-striker by carrying on the picket line a homemade sign reading "Who is Rhonda F [with an X through F] Sucking Today?").

    The Board’s rulings have been equally unmoved by racially derogatory and demeaning epithets and behavior. See, e.g., Airo Die Casting, Inc., 347 NLRB 810, 811–812 (2006) (protecting a striker who raised both middle fingers and shouted "fuck you nigger" at an African-American security guard); Cooper Tire & Rubber Co. and United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, 363 NLRB No. 194 (2016) (requiring reinstatement of picketer who called out: "Did you bring enough KFC for everybody?" and "Hey, anybody smell that? I smell fried chicken and watermelon," in reference to African-American replacement workers).

    Nothing in the Board’s decisions has offered any plausible justification, and I can conceive of none, for concluding that the rights of workers—all workers—are protected by turning picket lines into free zones for sexually or racially abusive and demeaning conduct. Instead, the Board’s rulings dismiss such abhorrent behavior as "unpleasantries" that are just part and parcel of the contentious environment and heated language that ordinarily accompany strike activity. Gloversville, 297 NLRB at 194 ("[N]onstriking employees and replacement workers must be prepared to contend with some unpleasantries in a strike situation. * * * [The striker’s] conduct, while censurable, is within the bounds of permissible picket line misconduct[.]"); see also Airo Die Casting, Inc., 347 NLRB at 812 ("[The striker’s] conduct on the picket line, the use of obscene language and gestures and a racial slur, standing alone without any threats or violence, did not rise to the level where he forfeited the protection of the Act."); Polynesian Hospitality Tours, 297 NLRB 228, 252 (1989) ("While one can sympathize with [the female manager] because of the rudeness and vulgarity demonstrated toward her, * * * [none of the activity] ever reached the level that it would * * * even come close to removing an employee from the protection of the Act * * * [since no misconduct] went beyond the use of epithets, vulgar words, profanity, vulgar gestures, and the like.").

    There is no question that Emily Post rules do not apply to a strike. "[S]ome types of impulsive behavior must have been within the contemplation of Congress when it provided for the right to strike." Allied Indus. Workers, AFL-CIO Local Union No. 289, 476 F.2d 868, 879 (D.C. Cir. 1973). Accordingly, when looking at the "rough and tumble of an economic strike," NMC Finishing v. NLRB, 101 F.3d 528, 531 (8th Cir. 1996), the Board can quite appropriately make allowance for "a trivial rough incident," Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 293 (1941), and can certainly leave room for the "normal outgrowths of the intense feelings developed on picket lines," NLRB v. Wichita Television Corp., 277 F.2d 579, 585 (10th Cir. 1960). See also Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 272–273 (1974) (noting that federal labor policies "favor[] uninhibited, robust, and wide-open debate in labor disputes," and that "freewheeling use of the written and spoken word * * * has been expressly fostered by Congress and approved by the [Board]"); id. at 283 ("Federal law gives a union license to use intemperate, abusive, or insulting language without fear of restraint or penalty if it believes such rhetoric to be an effective means to make its point.").

    So giving strikers a pass on zealous expressions of frustration and discontent makes sense. Heated words and insults? Understandable. Rowdy and raucous behavior? Sure, within lawful bounds. But conduct of a sexually or racially demeaning and degrading nature is categorically different. Calling a female co-worker a "whore" or exposing one’s genitals to her is not even remotely a "normal outgrowth[]" of strike-related emotions. In what possible way does propositioning her for sex advance any legitimate strike-related message? And how on earth can calling an African-American worker "nigger" be a tolerated mode of communicating worker grievances?

    Such language and behavior have nothing to do with attempted persuasion about the striker’s cause. Nor do they convey any message about workplace injustices suffered, wrongs inflicted, employer mistreatment, managerial indifference, the causes of employee frustration and anger, or anything at all of relevance about working conditions or worker complaints. Indeed, such behavior is flatly forbidden in every other corner of the workplace because it is dangerously wrong and breathes new life into economically suffocating and dehumanizing discrimination that we have labored for generations to eliminate. Brushing that same behavior off when it occurs during a strike simply legitimates the entirely illegitimate, and it signals that, when push comes to shove, discriminatory and degrading stereotypes can still be a legitimate weapon in economic disputes.

    Tellingly (and thankfully), it seems to be an isolated few who undertake such abusive behavior. The overwhelming majority of those involved in strikes are able to effectively communicate their grievances and viewpoints without resort to racial- or gender-based attacks. That just proves that there is no legitimate communicative or organizational role for such misconduct.

    And by the way, the Board is supposed to protect the rights of all employees covered by the Act. See Rights We Protect, National Labor Relations Board, (last visited Aug. 17, 2016) ("The National Labor Relations Board protects the rights of most private-sector employees to join together, with or without a union, to improve their wages and working conditions."). Holding that such toxic behavior is a routine part of strikes signals to women and minorities both in the union and out that they are still not truly equals in the workplace or union hall. For when the most important labor/management battles arise and when the economic livelihood of the employer and the employees is on the line, the Board’s decisions say that racial and misogynistic epithets, degrading behavior, and race- and gender-based vilification are once again fair game.

    We have cautioned the Board before against assuming that "the use of abusive language, vulgar expletives, and racial epithets" between employees "is part and parcel of the vigorous exchange that often accompanies labor relations." Adtranz ABB Daimler-Benz Transp., N.A., Inc. v. NLRB, 253 F.3d 19, 24 (D.C. Cir. 2001) (internal quotation marks omitted). It is both "preposterous" and insulting to ensconce into labor law the assumption that "employees are incapable of organizing a union or exercising their other statutory rights under the National Labor Relations Act without resort to abusive or threatening language" targeted at a person’s gender or race. Id. at 26; see also id. (expressing concern about a Board decision indicating that "it is perfectly acceptable to use the most offensive and derogatory racial or sexual epithets, so long as those using such language are engaged in union organizing or efforts to vindicate protected labor activity").

    In this case, the Board also reasoned that crotch-grabbing must be condoned because it was not a threat to the female employee that Williamson targeted. Maybe not in this instance given the absence of record evidence documenting an adverse effect on Walters. But the problem is that the Board’s decisions seem in too many cases to answer that question from the perpetrator’s perspective, oblivious to the dark history such words and actions have had in the workplace (and elsewhere). See, e.g., Airo Die Casting, Inc., 347 NLRB at 812 (finding testimony from management officials about the reaction of a security guard targeted with a racial slur—"visibly shaken and offended"—to be "somewhat exaggerated" because "anyone examining the actual [video] recording of [the striker’s] activity would be hard pressed to see any threatening or aggressive conduct"); Polynesian Hospitality Tours, 297 NLRB at 252 ("[W]hile * * * one must concede that employees’ conduct was somewhat rude and vulgar, it seems scarcely surprising * * * that some of them became angry at [the manager], referred to her as a ‘bitch,’ and that some of them yelled that she should be fired[.] * * * [T]he actions of the employees in this case [are] valid protests of a supervisor’s illegal actions against them."); Cooper Tire & Rubber Co., 363 NLRB No. 194 (finding that, "even though [the picketer’s] statements were offensive and racist, and certainly may have been disrespectful to the dignity and feelings of African-American replacement workers, there is no evidence to establish that the statements contained overt or implied threats, that they coerced or intimidated employees in the exercise of their rights protected under the Act, or that they raised a reasonable likelihood of an imminent physical confrontation").

    Nor do the Board’s decisions grapple with the enduring effects in the workplace of such noxious language and behavior. The assumption that such gender- and race-based attacks can be contained to the picket line blinks reality. It will often be quite hard for a woman or minority who has been on the receiving end of a spew of gender or racial epithets—who has seen the darkest thoughts of a co-worker revealed in a deliberately humiliating tirade—to feel truly equal or safe working alongside that employee again. Racism and sexism in the workplace is a poison, the effects of which can continue long after the specific action ends. Cf. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) ("‘One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional psychological stability of minority group workers[.]’") (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972)); Harris v. Forklift Sys., 510 U.S. 17, 22 (1993) ("A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing their careers.").

    Accordingly, if the Board’s decisions insist on letting the camel’s nose of racial and gender discrimination into the work environment, the Board should also think long and hard about measuring the "threats" associated with such sexually or racially degrading behavior from the perspective of a reasonable person in the target’s position, and how nigh impossible it is to cabin racism’s and sexism’s pernicious effects. Cf. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (Under Title VII, "the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’") (quoting Harris, 510 U.S. at 23).

    To be sure, employees’ exercise of their statutory rights to oppose employer practices must be vigorously protected, and ample room must be left for powerful and passionate expressions of views in the heated context of a strike. But Board decisions’ repeated forbearance of sexually and racially degrading conduct in service of that admirable goal goes too far. After all, the Board is a component of the same United States Government that has fought for decades to root discrimination out of the workplace. Subjecting co-workers and others to abusive treatment that is targeted to their gender, race, or ethnicity is not and should not be a natural byproduct of contentious labor disputes, and it certainly should not be accepted by an arm of the federal government. It is 2016, and "boys will be boys" should be just as forbidden on the picket line as it is on the assembly line."

    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.

    Friday, July 29, 2016

    Making your Leadership Development more Meaningful

    Use Leadership Competency Models

    As I noted in this previous post, the American Society for Training & Development revealed that after leadership training only about 15% of the skills learned are actually transferred to real life situations in the workplace. Leadership development programs often focus more on theory and ideas rather than on action and learning by doing.

    Clearly, we’re structuring leadership development programs in the wrong way. The earlier post notes adult learning theory and how that applies to the failures of most programs. However, regardless of how you structure and present a program, you have to choose the right participants, those who are likely to succeed in leadership roles.

    One way to choose your future leaders is to develop competency models. If you don’t focus on developing and encouraging the skills that are most needed and take the time to define what success looks like for each leadership position and how you will measure it, your efforts will be challenging at best, and failures at worst. It will be very difficult to determine when someone has achieved it and your process for hiring and promoting will suffer.

    In short, leadership competencies are skills and behaviors that contribute to superior performance in the role of a leader at any level.

    This article in Mindtools walks you through the process of developing a competency model. Three principals are identified as critical in developing your framework:

    Involve the people doing the work – These frameworks should not be developed solely by HR people, who don't always know what each job actually involves. Nor should they be left to managers, who don't always understand exactly what each member of their staff does every day. To understand a role fully, you have to go to the source – the person doing the job – as well as getting a variety of other inputs into what makes someone successful in that job.

    Communicate – People tend to get nervous about performance issues. Let them know why you're developing the framework, how it will be created, and how you'll use it. The more you communicate in advance, the easier your implementation will be.

    Use relevant competencies – Ensure that the competencies you include apply to all roles covered by the framework. If you include irrelevant competencies, people will probably have a hard time relating to the framework in general. For example, if you created a framework to cover the whole organization, then financial management would not be included unless every worker had to demonstrate that skill. However, a framework covering management roles would almost certainly involve the financial management competency.

    A study by HBR shows that differing levels of leadership require different skills. It also shows that the universal skills may vary in important at different levels. 

    Why do competency models matter? Your organization most likely has corporate values. Those values, as guiding principles, should have a corresponding set of behaviors that are used when hiring, promoting and evaluating performance. A model will help you align actual behavior with your culture and business strategy. Being able to coach an employee on where she failed to meet a defined set of expectations or where there is room for improvement is a cornerstone to effective performance management and employee development. Conversely, being able to tell her specifically which behaviors are leading to her success will encourage a continuation and development of those behaviors beyond the current situation. Employee satisfaction and engagement are beneficiaries of such clear standards and communication.

    Building a strong and effective leadership succession plan is much easier when you have a clearly defined set of skills, knowledge and abilities. Only when you have defined these items can you create a meaningful training program and help you to choose the best employees to be considered for future leadership roles.

    Helping you to identify which employees have the needed skills – which can then be developed in training so they can be properly applied in situations a leader may face – is beneficial to creating and maintaining your leadership development efforts. Likewise, your efforts at building the model will help you to determine if your current recruiting and selection process is meeting your needs. Leadership is important at many levels of an organization. If you’re not selecting or promoting employees that have the basic skills you seek, your efforts at leadership development will be empty.

    Thursday, July 21, 2016

    Theater of the Absurd – continued

    Sometimes you just have to shake your head in wonder at how any progress can be made on any issue when federal agencies continue to contradict one another and work at cross purposes.

    Last year, the US Chamber issued a report titled Theater of the Absurd. If you have any interest in this topic at all, no matter which side you’re on, this is a good read and has gotten far less attention than it deserves. The report outlines some of the craziness that has become the National Labor Relations Board and their decisions on common employer policies and practices.

    So, what now? A recent ruling by the NLRB tells us. After complaints filed by union members about some of T-Mobile’s policies, the NLRB went on the hunt and dug into the company’s employee handbook and other policies. As has been common, the board found at least one policy it didn’t like and ruled to be illegal:

    "[T-Mobile] expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation. Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management."

    You might ask "what’s wrong with this"? The NLRB says that this policy could be construed to restrict employees’ rights to "concerted activities"; for instance, engaging in controversial discussions about wages or working conditions, including discussions about unions. Seriously? Here’s a good article in the National Law Review, which includes a link to the ruling.

    Now for (more of) the absurdity. Recently the EEOC came out with the result of its study on anti-harassment training. I wrote about it here. In the report, the EEOC describes several options employers have to make anti-harassment training more effective. One of the options is described thusly:

    "Workplace civility training" focuses on promoting respect and civility in the workplace generally, rather than eliminating offensive behavior based on protected characteristics protected under anti-discrimination laws.
    The agency also noted that it should – not will, not must, but should have a dialogue with the NLRB about its stance on workplace "civility codes". Ahem…….. When is that discussion going to take place? 

    Talk about working at cross purposes! How is an employer supposed to create a harassment-free, bullying-free, respect for others environment when it risks getting nailed by one regulatory agency if it does, and another one if it doesn’t? Rock and a hard place, folks. Absurd.

    Thursday, July 14, 2016

    The “Compliment Sandwich”

    Nothing will make it taste good

    I’m still surprised when this tactic is used, and surprised at the number of articles that recommend using it. A "compliment sandwich" is where you put the meat of criticism in the middle of two pieces of complementary bread. The idea is that you soften the blow of the criticism by giving the recipient praise before and after you deliver some negative feedback concerning performance or behavior.

    What those who recommend this seem to consistently fail to understand is that you undermine your effort at performance management and most likely damage your relationship with your employee. You lose credibility and respect. Simply put, people are not that stupid.

    I get it. Giving negative feedback, having to correct poor performance or inappropriate behavior is tough. It’s uncomfortable. It’s also necessary. Here are some problems and risks with using this approach:

    1. Your motive is transparent. And not in a good way. Most people know what you’re trying to do – make them feel "good" about the coming criticism. Hearing the initial compliment will only serve to make them brace for the bad news, thereby nullifying your effort. Others will see your compliments as insincere, again undermining your effort. In this case, a spoonful (or two) of sugar will not make the medicine go down any easier.
    2. Your message will get lost. What is your purpose for these conversations? You want to correct inadequate performance or behavior. There will be many who will only hear the compliments; completely missing the message you want them to get about the true situation. Your effort fails to accomplish what you intend, which is to provide constructive feedback in order to improve performance. People often only "hear" the beginning and end of such conversations, not the middle.
    3. You alienate and lose respect. Your employees are adults. You should be treating them as adults. If you have negative feedback to give, just give it. Again, they see through your transparent efforts to somehow make this easier to hear. When you reach the point of having these conversations, you will often find yourself reaching to find something complimentary to say. This is only too clear to the employee. Do you really want Joe to come away from the meeting thinking "the best thing he could say about me was that I come in on time?!"

    If you have to give negative feedback – give it. Be clear and direct about the problem. Be clear and direct about what your expectations are for performance going forward, and about the consequences if that doesn’t happen. Then, you can have an actual conversation about how those expectations can be met, engaging the employee is coming up with the methods for the solution. If you feel the need to add praise to the conversation, this may be the only appropriate time to do so. Talk about times and situations where the employee was successful in similar circumstances and solicit ideas about how he/she can apply those methods to the current problem.

    Praise and compliments should not be marred by including them with criticism. Give that praise when it’s warranted, all by its lonesome. It will have a much more positive (and intended) effect when not stuffed with negative meat. 

    Thursday, July 7, 2016

    Asking the Right Questions?

    of the right people, and listening to the answers……

    In order to succeed, leaders ask a lot of questions. How do we grow sales/improve our company/expand our service or product line? How do we improve employee morale and *gasp* employee engagement? Asking is great. Listening – really listening – to the answers is better. But are we asking the right questions of the right people?

    Maybe not. There are hundreds of articles, and probably hundreds of companies out there, all wanting to sell you their theory about how to improve employee engagement (whatever that really is) and many have a product they say will get you there. What perk will you add to your menu of goodies available to employees hoping to see a jump in their "happiness" quotient? Will it be branded awards, concierge services, catered lunches or foosball tables? How about a roadmap for how to create the ultimate employee involvement committee? Or maybe a themed employee picnic is more your style. The thing is, none of these will get you anywhere you really want to go.

    Asking the right questions and listening to the answers has a better chance of helping you reach your goal, whether that’s a sales, growth or employee-related goal. It’s also equally important to ask yourself these questions before asking any of your employees.

    Is the company structured properly? You want to determine if your structure is both effective and efficient. Are roles and responsibilities widely understood and are decision rights clear, are the right people in the right roles? Ask your leadership team these questions and listen to the answers.

    Do employees fully understand our overall strategy and how they contribute to that strategy? You want to know whether employees really see and feel the connection between what they do and the strategy and mission of the company. Effective leaders regularly communicate what the company strategy is and work to ensure that individual goals and responsibilities positively contribute to the desired outcomes.

    Do policies, systems, and processes reinforce the strategy, culture, and results we desire? Look at employee policies, compensation and benefit systems, performance management systems, and promotion guidelines to ensure they support what you expect of employees. Look at usage and participation in benefit plans, and ask employees which they value and which they are indifferent to. Delve into employees’ perceptions about various policies to determine if they understand the purpose of the policies. You may find that communication about the "whys" may help understanding and buy-in.

    How does the community perceive our company? And the companion question can be what does our company stand for in the community? The answers to these questions can have a dramatic impact on attracting great talent and also on how current employees feel about and are connected to your organization.

    Following along with the "what do we stop doing, start doing, change?" questions that we should be asking frequently, we should be digging deeper. Are we (our product/service) relevant? How can we remain that way? Are we measuring the right things to get to these answers? What do our customers say about us?

    Sometimes we need to identify what exactly the issue is when we perceive a problem, since we’re likely seeing the symptoms and not necessarily the cause. Asking the right people:

    • What is it like to work here?
    • What seems to be the trouble?
    • What do you make of this situation?
    • What concerns you the most about the current issue?
    • What do you think is your main obstacle?
    • What is holding you back from completing this project/furthering your career?
    Identifying the desired outcome and recognizing there may be some difference between your ideal outcome and that of any particular employee can give you information about what motivates your staff and help get you to a mutually beneficial goal.

    • How do you want this to turn out?
    • What is your desired outcome?
    • What benefits would you like to get out of this project?
    • What do you propose?
    • What’s your plan for getting there?
    • What else do you need to consider?

    Regardless of what questions you ask, keep them open-ended. If a question can be answered with "yes" or "no" it’s not likely to generate discussion and rarely yields any insight. By asking open-ended questions, you can get far more interesting insights.

    Don’t ask "do you like working here?" ask "what about working here causes you to stay?" 

    Nearly every decision we make is based on at least one assumption. If you build on faulty assumptions, your conclusion will be faulty as well. Ask – both yourself and your staff - "What are we assuming in this situation?" You need to determine if what your employees are "assuming" about your company’s direction is correct and if your assumption about their understanding of your mission is correct. Get on the same page.

    Leading people to their own insights is far more effective to building commitment than only telling them your thoughts. Asking about lessons learned can be very revealing. "What can we learn from this experience that might be useful to us in the future?" And this question works when things go well, and when things don’t go as well as planned. 

    Learning to love, or at least tolerate, the sound of silence is advantageous in getting employees who may be somewhat reticent to express their thoughts. Most of us get uncomfortable when things get quiet. We feel compelled to fill the space with chatter. You can let this work to your advantage by just not giving in to that compulsion to talk. When you do that, you may find that people volunteer an amazing amount of information that you would have never gotten any other way.

    The key is always the right thing at the right time, and with the right people. Asking the right questions of the right people, really listening to the answers and then implementing what you can will get you far more than that foosball table.