Andie Burjek, Author at Workforce

July 23, 2019June 29, 2023

HR History: Mental Health in the 1950s

From Personnel to Workforce, Workforce Magazine; HR History

The workplace has changed a lot since 1922. That year The Journal of Personnel Research debuted, rebranded later as Personnel Journal and finally Workforce. Now in our 97th year, we take a look back at what was on the minds of past generations of people managers.

A Nuanced Approach to Mental Handicaps, September 1957

The concept of “normal” means different things to different people, according to researcher and writer Silas L. Warner in the article “Spotting the Neurotic and Helping the Maladjusted.” This article was sympathetic toward the plight of employees who are emotionally or mentally ill.

Warner used war-taught lessons to make the argument that people formerly excluded from the workforce can become valuable workers. World War II required that women do manual labor previously done by men and, in some cases, that people recovering from strokes work with different machines. If the stroke impacted the right side of their body, they could depend on left-hand operated machines. If physical handicaps can be overcome this way, so can emotional handicaps, Warner argued.

Let’s first acknowledge that obviously being a woman isn’t a physical handicap. Overlooking that, his argument is pretty progressive. He highlighted a few types of mental or emotional handicaps: paranoia, neuroticism, alcoholism and depression.

As long as the “paranoid” person in question is ultimately harmless, there’s “no psychiatric reason why this person’s job should be taken from him,” Warner wrote. Further, certain jobs require a certain degree of skepticism.

Warner also had a nuanced approach to “neurotics.” Contrary to popular beliefs, he wrote, “[They] are not spoiled weaklings who can’t stand up to what you and I do, but are unhappy individuals, most of whom are productively working.”

Finally, he stressed how much of a medical emergency depression can be, due to the dangers of suicide. He noted that serious depressions occur most frequently in one’s 40s and 50s. That’s a very different narrative than what we hear about now, which is that young people are more likely to experience mental health problems.

— Andie Burjek

The New Workforce, January 1998

From the mid-1920s until December 1997, this publication was known as Personnel Journal. That all changed with the January 1998 issue as the first edition of Workforce rolled off the presses. And like any good publication would in its first appearance, the writers, editors and a series of distinguished panelists made a splash with some bold predictions as they gazed upon 2008.

Panelists ranging from longtime HR tech analyst Jac Fitz-Enz to University of Michigan professor Dave Ulrich to then-McDonald’s Corp. HR director Bob Wilner offered their thoughts in “60 HR Predictions for 2008.” Under the header “Work and Society” – “Just as defined-contribution plans have begun to take over from Social Security, companies will take on responsibility for elder care, long-term care and other social needs through cafeteria-style benefits programs.” In “Definition of Jobs” – “Organizations won’t pay for the value of the job but the value of the person.” And under “Strategic Role of HR” – “Leading change will become HR’s greatest contribution to the corporation.”

One last forecast many wish would come true: “We can all expect to attend fewer meetings in the future.”

Maybe by 2028?

— Rick Bell

Also in “From Personnel to Workforce”:

‘Reskilling’ in the Great Depression (June 1935)

Rosie Returns Home (October 1945)

Hold My Beer — And Don’t Give It Back (June 1965)

July 22, 2019July 22, 2019

Student-Loan Matching Hits Snags

Plan sponsors have shown a lot of interest in a recent ruling that allowed one company to make 401(k) matching contributions while employees repay their student loans, but two attorneys following the progress of the idea are doubtful that federal guidance allowing others to implement the idea will be issued any time soon.

In August 2018, the Internal Revenue Service issued a private letter ruling allowing an unnamed company to amend its plan so workers who voluntarily agree to put at least 2 percent of pay toward a student loan would be eligible to receive an employer contribution equal to 5 percent of pay to their 401(k) plan.

That letter addressed the issue facing 44 million graduates today: the $1.5 trillion they carry in student loan debt. Organizations also are seeing a rapid rise in popularity for plans that ease the loan burdens of recent grads.

Since that time, the IRS has met with trade groups to talk about possible federal guidance, said David Levine, a principal at Groom Law Group who was speaking at the Plan Sponsor Council of America’s national conference in April.

“The outcome of the meeting was not as optimistic as one might hope for,” Levine said.

Jeffrey Holdvogt, a partner with law firm McDermott Will & Emery, said that there are other ways to help employees with their student debt, but this private letter ruling was a strategic way to shoehorn the benefit into a tax-friendly vehicle. He suspected that other plan sponsors have been asking for similar private letter rulings, but the IRS has turned them down.

Also read: Indebted to You? Student Loan Benefit Could Be Key Retention Tool

He and Levine agreed that there may be unintended consequences in broadening the scope of the initial private letter ruling or offering separate rulings to other plans sponsors.

First, the two agreed that the idea may get trumped by pending legislation. The Retirement Security & Savings Act, sponsored by Sens. Rob Portman, R-Ohio, and Ben Cardin, D-Maryland, would allow employers to make matching contributions with respect to student loan repayments. In addition, the Retirement Parity for Student Loans Act, sponsored by Sen. Ron Wyden, D-Oregon, would allow 401(k) and 403(b) plan sponsors to make matching contributions on qualified student loan repayments. Employees must submit to the employer proof of the student loan and the loan repayment.

Next, Levine posed several questions about how this ruling, if expanded, could set a precedent for other repayment programs. It could get as crazy as someone buying a yacht and asking for compensation. The general issue of needing to pay off a large liability while saving for retirement fits the same scenario as the student debt question.

“Where do you draw the line?” Levine asked.

Levine cautioned that plan sponsors interested in adopting similar strategies in their 401(k) plans need to rely on the guidance exactly as it was outlined in the original private letter. Companies that simply follow the “spirit” of the private letter may wind up having issues with the IRS.

July 18, 2019July 9, 2019

Employee Handbook: Lifesaver or Nightmare?

When done correctly, employee handbooks can be great tools for employers.

But often employers treat them like a meal simmering in a crockpot: set it and forget it. Creating a handbook, particularly for employers in multiple states, is a major undertaking.

Many employers do not give their employee handbooks the attention they need and deserve. Some cobble together a collection of policies borrowed from the internet or other businesses that may not only fail to reflect their actual business practices, but may also run afoul of state, federal or local laws.

Some businesses delegate the task of creating an employee handbook to someone with little or no experience in human resources, and the handbook turns into a glorified “how-to” manual for submitting expense reports and timesheets, with a few personnel policies thrown in.

Even when an employer puts the time and resources necessary into the creation of a good employee handbook, completion of a comprehensive handbook project often induces a sense of relief that quickly turns into complacency if the company does not have a plan to routinely revisit the handbook for periodic updates.

Also read: The Top 6 Employee Handbook Mistakes

A well-written and up-to-date employee handbook can be a litigation lifesaver, but an out-of-date handbook can be an employer’s nightmare. Recognizing and treating employee handbooks as important HR assets will pay off in the long run by providing consistency and guidance in day-to-day operations and legal protection in the event of a government agency action or lawsuit.

What Should an Employee Handbook Do?

Think of the employee handbook as a “best practices” guide that sets forth key expectations for employees, as well as any notices or policies that are required by law. It should explain the personnel practices about which there is to be no confusion, so they can be applied consistently and fairly. Put yourself in the shoes of your employees; what would you want to know about company policies, practices and expectations?

A well-written and up-to-date employee handbook can be a litigation lifesaver, but an out-of-date handbook can be an employer’s nightmare.

Examples of some key policies include equal employment opportunity and nondiscrimination; harassment; at-will employment; leaves of absence; reasonable accommodations for pregnancy or disability; drugs in the workplace/drug testing; an overview of company benefits (vacation, sick leave, holidays, health insurance, 401(k) plans, etc.); absenteeism and tardiness; safety rules; discipline; performance reviews; use of company email, voicemail, telephones and computers; an explanation of complaint-handling procedures; and an acknowledgment of receipt signed by the employee.

Additionally, many states have written policy requirements that are dictated by the size of the employer’s workforce in a particular state. Recently, there has also been a wave of paid sick leave laws being enacted by states and localities — many of which have written notice and policy requirements. Additionally, some states have written policy requirements for pregnancy accommodation, protection of social security numbers, family leave laws and more. It is incumbent upon the employer to keep track of these laws and the requirements that go with them.

Employers in multiple states need to be mindful that states do not all play by the same rules. Something that seems benign could land a company in hot water if the state law is not considered. For example, some states prohibit use-it-or-lose-it vacation policies, including California, while other states, such as Louisiana, require that all accrued vacation be paid out upon separation of employment, regardless of the reason. Many of these state laws have significant penalties associated with them that can be costly to businesses.

Also read: It’s Always the Right Time to Revisit Your Handbooks

Further, agencies such as the National Labor Relations Board have also weighed in on whether certain language in an employee handbook may chill employee rights to engage in concerted and protected activity, particularly in nonunion workplaces.

In sum, an employee handbook should balance educating employees with legal requirements developed through several legal channels, including statutes, court opinions, agency interpretations of laws and implementing regulations.

How Often Should a Handbook Be Updated?

Ideally, an employee handbook should be reviewed and updated at least once a year. Employment laws change frequently, especially at the state level, and policies that were perfectly fine several years ago may be incomplete or problematic today.

For employers operating in multiple states, particularly those with active legislatures that tend to make changes to the laws effecting employers each session, a review every six months is recommended.

Can It Be Made Available Online?

The short answer is yes. The cost and logistics of distributing paper copies of handbooks has led a number of employers to make their employee handbook available electronically (e.g., on the company’s intranet or through a third-party host site).

If your company opts for an online employee handbook, remind employees periodically that the information is available online and make sure that every employee has access to a company computer. If they don’t, make hard copy handbooks available as a supplement.

In the end, maintaining your employee handbook is akin to getting an oil change for your car or rebalancing your retirement portfolio — a small but necessary step to keep your company on track. Consulting an employment lawyer who routinely prepares employee handbooks is strongly recommended.

July 15, 2019June 29, 2023

Comic Book Defines a New Line in Workplace Harassment

harassment, define the line, sexual harassment training comic book — Nikki Larchar and Tina Todd

It was a conversation amongst colleagues at happy hour that sparked Nikki Larchar’s idea for Define the Line, a comic book training tool used to educate employees about workplace harassment and how to work through it.

“It started with a margarita, as many good stories do,” said Larchar, a co-founder of Define the Line along with Tina Todd. The two also co-founded HR consulting firm simplyHR.

“It just kind of came up in conversation that we had all taken trainings on sexual harassment in the workplace, but we all had stories of it happening and more importantly, a lot of stories of regret: regret that we didn’t speak up, that we didn’t report, that we didn’t do something about it,” Larchar added.

Define the Line goes a step beyond traditional sexual harassment training.

The idea sparked out of the need to provide people with the tools and resources to actually step in during harassment scenarios, rather than just a list of definitions.

“It doesn’t even have to be something that qualifies as sexual harassment but something that makes us feel awkward or uncomfortable,” Larchar said.

The U.S. Equal Employment Opportunities Commission defines sexual harassment as “unwelcome sexual advances, request for sexual favors, and other verbal or physical harassment of a sexual nature constitutes sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.” In 2017, the EEOC received 26,978 claims of harassment, of which just over half were sex-based and roughly a quarter of which were specifically designated as sexual harassment.

It’s important to note that these are just the cases that are fully reported and documented. These figures do not capture the incidents that go unreported, mishandled or perhaps fall into other categories of harassment that are less clearly defined.

Thus, with the utmost enthusiasm, Larchar and her business partner, Tina Todd, began spreading the word about their project through Kickstarter.

Larchar and Todd pooled their own funds into the initial launch of the project and then moved to crowd-sourcing.

“The Kickstarter campaign did two-fold ー it helped us fund the project and [we] also wanted to see if people thought our crazy, wild idea was cool,” Larchar said. “Of course we were like, ‘This is amazing!’ But until you start telling people, we weren’t really gonna’ know if it was amazing.”

Soon after the Kickstarter launch, the team got their affirmation.

Larchar said that their feedback has been positive, and many buyers have specifically noted Define the Line’s appeal to younger members of their organization.

Todd spoke to the energy and ambition that Larchar has brought to the inception of Define the Line.

“Although Nikki and I came up with the concept of Define the Line together, she really spearheaded most of that project. It takes a lot of courage to step out of your comfort zone and do something that it different than the norm, especially as a young professional,” Todd said. “Myself and our community have been really impressed with the bravery and courage that she’s had. She’s taken a risk to create something so different.”

The comic deals with harassment as it truly exists in the modern workplace ー one that is increasingly diverse, mobile and undeniably tied to technology. It highlights how harassment can take place over text or target someone’s sexual orientation and how to deal with these interactions at every level of an organization.

Some of the most important feedback that the comic has gotten, Larchar said, has been in the way it approaches scenarios that can’t be easily categorized in the way traditional sexual harassment trainings have always defined.

Also read: How to Avoid The 3 Mistakes L&D Leaders Make When Addressing Workplace Harassment

“We’re really tackling the gray areas,” Larchar said. “What happens if someone asks about another person’s sexual orientation? What happens when after work, it’s decided that we’re gonna’ go to a strip club? How is the HR manager supposed to handle something if I come forward with a complaint?”

For Larchar, Define the Line is just as much of a journey of personal growth as it is professional. It’s been a lesson in finding her own voice as much as it has been helping others find theirs.

“For me Define the Line was really a transformation and helped me to grow,” she said. “I can also support people and say ‘Hey, if you’re like me and it’s awkward, we can still do it and find our voice and help people find theirs as well.’”

Also read: Training Not Enough to Prevent Sexual Harassment

July 10, 2019June 29, 2023

3 Ways to Cultivate a Global Business Mindset

In today’s increasingly connected and international marketplace, HR professionals who have a strong understanding of global dynamics are going to have an advantage. The question I hear often is “How do I develop that global mindset?”

Many people in HR assume they can’t travel abroad and build valuable global knowledge unless their company sends them on an official work trip overseas. The reality is that you can take that initiative yourself and learn to become an effective global leader — whether you travel abroad regularly or not — and there’s a good chance your employer will take notice if you do.

Develop global relationships online: No matter what function you’re in within an organization, there’s a global community you can join via Facebook, LinkedIn or a professional association. These online communities are excellent ways to connect with your peers in other parts of the world and start meaningful conversations.

Investing time and energy in global social media groups can both help you with your professional development and expand your understanding of the global scope of your industry — all from your home or office.

Travel to an overseas conference, then hang out: To fully expand your global understanding you’re going to have to travel. I would suggest figuring out how to travel internationally once a year — with an intention to visit a different country every trip.

Also read: How to Build a Leadership Pipeline with Global Experience

If you’re traveling to a three-day conference in another country, add a few days and use the connections that you’re making in your online groups to meet with people face-to-face in that city. There’s nothing better than immersing yourself in another culture.

Explore international development opportunities: A very powerful way to expand your global mindset is to travel with a group of like-minded professionals to really explore a specific country.

An associate and I organize an HR delegation every year to a different country. In recent years, we’ve taken 21 HR-related professionals to Cuba for a week and another dozen to Japan. Last year we traveled with an HR group to the Czech Republic and Hungary.

On one of the trips, an attendee was the head of talent acquisition for a specific business unit inside a global organization, and she said the trip was part of her strategy to take on a more global job.

When she returned her company took note of her willingness to invest her own funds and time in an international learning perspective and put her into a global job within a few months.

If you truly want to understand how things work in other parts of the world and make the investment to start your learning curve, your employer is likely to notice that effort and support your journey. And if they don’t then you have a great foundation to find an organization that’s more conducive to your global learning.

Also read: Keeping Data Safe: The Next Wave of HR Tech Innovation

July 9, 2019

Think Differently: 3 Ways to Build Cognitive Diversity in the Workplace

The ability to leverage diversity in experiences, culture and background is a strong driver of innovation and global success, according to a Forbes survey of executives. But there is one key element that can be overlooked as companies seek to become more diverse: cognitive diversity, or the differences in how people think and process information.

Teams that reflect cognitive diversity solve complex problems faster than teams composed of individuals who approach problem-solving in the same way, two researchers have discovered. When faced with new and uncertain situations, teams composed of cognitively diverse individuals deploy different modes of thinking to tackle the challenge at hand. The result is accelerated learning and performance. Meanwhile, teams composed of people who address complex problems in the same way are hampered by a lack of versatility. The findings held true irrespective of differences in gender, age or ethnicity.

Promoting greater cognitive diversity in teams can be challenging when the natural inclination of leaders is often to select people who have a similar approach either to themselves or to whoever filled a role previously. But a culture of innovation depends on diverse thinking and learning styles, and work is changing rapidly. What has worked in the past may not be what will work in the present the future.

Here are a few ways companies can effectively promote cognitive diversity.

Recruit for Cognitive Diversity

Be intentional in seeking team members with diverse thinking styles and approaches. There are very few organizations that aren’t looking to strengthen their workforce skill mix, and that means hiring differently. Challenging assumptions on the criteria for success in a given role is a good place to start.

Often, organizations seek to hire new talent based on their “pedigree” for a specific role, such as the number of years of experience in a similar position, where they went to college or the degree(s) they have obtained. But this hiring style limits an organization’s ability to gain the cognitive diversity needed to solve business challenges in a rapidly changing environment. Instead, leaders should ask, “What are the challenges we need to solve, and what are the capabilities, experiences and backgrounds we must possess to address these challenges in new ways?” While not every role lends itself to this process, applying this technique wherever possible is worth the risk.

It’s also important to look outside your industry sector for talent who could elevate your performance by introducing new ideas cultivated in different fields or work environments. For example, Magellan Health [Editor’s note: the author’s company] has hired tech start-up professionals, digital app developers and hospitality specialists to revamp its approach to patient engagement, improving outreach and outcomes. The higher levels of cognitive diversity gained through these efforts help companies keep pace with changing needs and better position themselves for long-term survival.

Also read: The 4 Myths of Health Care Cost Reduction

Break the Mold for Partnership

The ability to respond nimbly to change is a critical characteristic for innovation and long-term success. Strategic partnerships are one way to leverage the level of cognitive diversity needed to adapt and evolve in a transformative environment. Ecosystems are more fluid now than ever, and that will continue to hold true.

Look for opportunities to collaborate with non-traditional people, groups and companies to explore new ways of addressing the complex challenges your industry faces. Taking a “no lines” approach to solving complex issues strengthens cognitive diversity and better positions companies to both create and survive disruptive innovation in their areas of expertise.

In health care alone, partnerships between care providers, technology and software companies, retail firms and more are bringing new concepts to market that are disrupting traditional approaches to care delivery. The accounting firm PwC suggests the skills needed to respond to evolving business models in health care include proficiency in artificial intelligence, machine learning and predictive analytics

And this trend is not limited to just health care. As companies across the world navigate the fourth industrial revolution, the ability to draw from non-traditional areas of expertise — such as artificial intelligence, digital engagement and predictive analytics — and develop new skills in existing talent will differentiate organizations that control their destiny in a transformative environment from those that allow the environment to determine their fate.

Create Space to Innovate

Leaders have to set the tone for an innovative work environment — virtual or physical. At a time when 43 percent of employees spend at least some time working remotely, many of the historic social contracts between employees and employers are changing. Given this, now is a great time to be deliberate about building innovative muscle. Work is being redefined, focus on results is being strengthened, and entirely new ways of collaborating and connecting are emerging.

Also read: The New Employer-Employee Social Contract

Small steps can yield big results. Working with teams to gain clarity on a problem to be solved, for example, can be enough to start a new and different conversation about an old problem. Simply creating time for teams to think together about a shared need or issue without having to force a solution right away can yield a different outcome.

Rethinking what behavior gets rewarded is also important in reshaping a culture of innovation. Celebrating “tries” vs. successes takes courage, but it can be transformative in building innovative capability and attracting cognitively diverse talent.

A Renewed Approach to Breakthrough Performance

Cognitive diversity is an essential ingredient in creating a culture of innovation in any organization, and vice versa. Supporting a cognitively diverse workplace requires strong leadership that’s willing to truly rethink everything — not on their own, but with their teams, their customers and across organizational lines. The power of learning together and cultivating cognitive diversity in designing the work of tomorrow is a strong play for any company competing in today’s fast-changing world.

July 2, 2019February 11, 2022

3 Ways HR Can Address Alcohol Addiction

More than 21 million people in the United States struggle with addiction. I used to be one of them.

After suffering several sports-related injuries, I developed an opiate addiction. And though I’m now in recovery, I remember clearly how difficult that battle was.

My story may sound out of the ordinary to some, but those 21 million struggling Americans say otherwise. And there’s a good chance that someone — or several people — at your company has battled addiction as well. As an HR leader, acknowledging that fact and taking it into account in your interactions with employees can be monumentally important to the health and well-being of your staff.

But that’s not always an easy task. Today’s American workplace is saturated with opportunities to grab a drink with co-workers, celebrate closing a huge deal over a few beers or have one cocktail too many at the annual holiday party. I believe that work and drinking should remain separate and that time spent in the office should be dedicated to productivity, but I’m aware that’s not the norm in every company culture.

For any HR leader hoping to navigate the rough terrain of alcohol in the workplace while remaining sensitive to the struggles and needs of your team, let these three principles be your guide.

Invest in Teaching Your Leadership About Addiction

Help educate the entire leadership team, not just your HR team. With 1 in 13 American adults dealing with alcohol addiction, executives and managers must grasp how prevalent this issue in the workplace.

HR can help leaders at your organization recognize the signs and symptoms of addiction so they’re prepared to help an employee who may need it. These signs can include:

Regular, unexplained absences or tardiness.
Sluggishness in the mornings.
Inconsistent job performance.
Appearing overly tired or sleep-deprived.

Leaders should know that addiction doesn’t discriminate. From lawyers to athletes to doctors and everyone in between, this disease affects every socioeconomic status. Never assume that people in your office couldn’t possibly be impacted.

Lastly, make it a priority to offer your company leaders a new perspective on addiction and destroy the typical stigma that surrounds it. Addiction is a disease, not just a bad habit or poor choice. You wouldn’t discriminate against an employee who requires time and medical treatment to recover. Dealing with someone fighting addiction shouldn’t be any different.

Give Your Employees Options

With this knowledge in mind, your company may choose to rethink how it incorporates alcohol into work-related events. Avoid pairing happy hours with huge company announcements, for example. Give all employees an easy way to opt out of events where alcohol will be present.

And of course, not every company gathering has to center itself around drinking. Instead, try to plan an equal amount of social and team building activities in which alcohol plays absolutely no part. Plan a team-building activity (axe throwing, anyone?) or take a group coffee date in the middle of the day. HR has the opportunity to get creative.

Practice a True Open-Door Policy

The most important option HR leaders can provide for their teams is the option to ask for help. Find a way to let all your team members know that your company has an open-door policy for anyone who may be struggling and that the leadership is willing to work with them in a confidential and supportive manner.

Many employees assume that termination will be the first course of action if they open up about their issues with addiction. Make it clear that their health and well-being come first and guide them toward help. This may come in the form of an employee assistance program or perhaps by connecting them with a local support group.

I’m more than lucky that my second chance at my life and career led me to American Addiction Centers, where sensitivities around drinking are always respected and where someone in recovery can remain focused on growth and success. But this is not yet the case across the country.

It’s far past time to acknowledge that addiction is real, it’s common, and there’s a good chance it’s affecting someone on your team. Let’s start to do better at offering a workplace in which everyone can thrive.

July 2, 2019

There’s No Such Thing as ‘Reverse’ Discrimination

According to the New York Post, a Caucasian 20-year veteran attorney for the Legal Aid Society is suing her former employer for race discrimination. Among other issues in her lawsuit, she claims that she was denied a lateral move “because of ‘diversity considerations.’”

Do you know that some courts impose a different, higher legal standard for discrimination against white employees than for discrimination against African-American employees?

According to these courts, a non-minority employee asserting a claim of race discrimination must demonstrate background circumstances to support the suspicion that the defendant is that “unusual employer who discriminates against the majority.”

This is nonsense. Last I checked, EEOC is the “Equal Employment Opportunity Commission,” not the “Minority Employment Opportunity Commission.” A minority manager is just as capable of committing discrimination as a white manager. The law should not treat “reverse” discrimination any differently.

Discrimination is discrimination, period.

Applying different proof standards depending on the perpetrator of the alleged discrimination re-enforces the very stereotypes that our EEO laws intend to eradicate. Can we please remove from the law this idea of “reverse” discrimination, and just agree that discrimination is wrong regardless of the races of those accused of perpetrating it?

Also in The Practical Employer

The 12th Nominee for the Worst Employer of 2019 Is …

Does the Attorney-Client Privilege Protect Harassment Probes Conducted By a Lawyer?

Abortion Discrimination = Pregnancy Discrimination

July 1, 2019June 29, 2023

The FLSA Nightmare Behind Chipotle’s Bonus Program

Last week Chipotle announced a new bonus plan that could earn its employees up to an extra month of pay each year. Per the chain’s press release, the program is offered quarterly and can result in a bonus worth one week’s pay, calculated as an individual’s average weekly pay per quarter. To qualify for the quarterly bonus program, restaurant teams must meet certain sales and cash goals.

This bonus program has the potential to be a great way for the restaurant to break through in a tight labor market to attract talent. It also, however, has the potential to pose an FLSA nightmare. Bonus payments often count as part of a non-exempt employee’s regular rate of pay, thereby increasing the overtime premium owed to that employee.

Section 7(e) of the Fair Labor Standards Act requires the inclusion in the regular rate of pay all remuneration for employment—except seven specified types of payments). Non-discretionary bonuses do not full under one of those seven exempted categories. A bonus paid pursuant to an incentive program (like the program Chipotle just announced) is the definition of “non-discretionary,” and therefore must be accounted for in the calculation of an employee’s regular rate of pay for overtime calculation purposes.

For purposes of calculating the regular rate of pay, the bonus does not have to be included in its entirety in the week it is paid. Instead, an employer can apportion the bonus amount back over the workweeks of the period during which it was earned. The employee must then receive an additional amount of compensation for each workweek that he worked overtime during the period equal to one-half of the hourly rate of pay allocated to the bonus for that week multiplied by the number of statutory overtime hours worked during the week. If it is impossible to allocate the bonus, an employer can select some other reasonable and equitable method of allocation.

If a bonus payment already accounts for the overtime premium, then no additional payment is required. For example, a bonus plan may pay, as a bonus, a 10% premium of an employee’s total compensation, including overtime premiums. In this instance, the payment already covers overtime, and no additional overtime is required.

Like most wage and hour issues, the handling of bonus payments to non-exempt employees is complex, and presents a real trap for the unwary employer. If you are considering paying bonuses to hourly and salaried non-exempt employees, you should run it past employment counsel before making the payments to ensure you are not committing an FLSA violation in the mechanics of the bonus payment.

Also in The Practical Employer:

The Customer Isn’t Always Right: The Museum of Sex(ual Harassment)

I Really Thought People Knew Better Not to Advertise Jobs ‘for Whites’

How to Fire an Employee

July 1, 2019June 27, 2019

Could Video Interviewing Land You in Court?

Companies using artificial intelligence to assess video interviews should be aware of a new law on the books.

In May the Illinois Legislature unanimously passed the Artificial Intelligence Video Interview Act, which requires employers to notify candidates that AI will be used to assess their interview, be able to explain what elements it will look for, and secure their consent to do it.

Those that don’t could face future litigation.

The legislation, which is expected to be signed by Gov. J.B. Pritzker this summer, addresses the risk of hidden biases, explained Mark Girouard, a labor and employment attorney for Nilan Johnson Lewis in Minneapolis. “As with any use of AI in recruiting, this law come from concerns about how observations in the interview correlate to business value.”

Also read: Monitor Responsibly: How Employers Are Using Workplace Surveillance Devices

AI assessments of a video interview use machine-learning algorithms that are taught what to look for by studying existing data sets and finding correlations. For example, it might determine that candidates who use certain phrases, or speak at a certain speed, have the right attributes to do well in a role, based on data captured about previous high performers.

Replicating Bias

This is a valuable and efficient way to prescreen candidates, and it can potentially eliminate human bias from the process. However, if the data sets the algorithm learns from are inherently biased, the algorithm can adopt those biases perpetuating the problem, Girouard says. For example, they might identify certain word choices, facial expressions or even skin tone as a consistent theme among high performers, even though those features don’t align with performance.

“If algorithms are trained correctly they shouldn’t replicate bias,” Girouard says. “But if they aren’t they can amplify disadvantage.”

Kevin Parker, CEO of Hirevue, a video interviewing software company that offers AI-driven assessment services, couldn’t agree more.

“We are in full support of this bill,” said Parker, who was invited by lawmakers to provide feedback on its content. He sees it as another way to address privacy and fairness in the recruiting process, and to set quality standards for the entire industry.

Hirevue addresses concerns about bias by including organizational psychologists on the teams that work with customers to first identify interview questions that will uncover the right criteria for success (empathy, problem solving, sociability), then to test those questions against a broad set of data to ensure they have no adverse impact.

Sometimes a problem will emerge, he noted. For example, when companies train algorithms using performance data from a predominantly middle-aged white male employee population, certain factors can introduce bias.

The testing process used to vet the interview questions can identify these biases, then the team will either eliminate the question or reduce the value of factors associated with those measures. “In this way we can neutralize biases before a single candidate is interviewed.”

A Flood of Legislation

While this law has only been introduced in Illinois, it is likely the first of many such laws being proposed as concerns about AI’s impact on recruiting bias grows, Girouard warned. “It is the first drip of what is likely to be a flood of legislation.”

Also watch: Armen Berjikly on Communication Advances in AI

To protect themselves against later litigation, employers should educate themselves on what the law requires, and how they are addressing the risk of AI-driven bias in their current operations. He noted that most employers today can’t explain how the AI assessment works, what criteria they look for or how those criteria align with performance success.

That’s a problem, he said. The law doesn’t just require employers to inform candidates about the technology, they also must be able to describe how the AI tool will interpret the interview and how it will be used in the selection process. “If you can’t explain it, it will be very hard for you to defend it in court.”