Author: Rick Bell

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Biometric Privacy Lawsuits Rising

You can hardly pick up a smartphone these days without reading about — and experiencing — how biometric authentication technology is changing our lives and businesses.

Finger and facial recognition have become so commonplace that you might not think twice before asking your employees to authenticate their time using similar technologies, especially because traditional punchcard systems can be inefficient and vulnerable to fraud or abuse.

But a recent spike in litigation illustrates the legal risks to introducing biometric authentication devices and practices to your business. More than 50 companies are now defending class-action lawsuits under the Illinois Biometric Information Privacy Act, or BIPA, which provides rules for the disclosure, retention and protection of biometric data, and permits any person aggrieved by a violation to recover $1,000 for each negligent violation and $5,000 for each intentional violation.

Texas and Washington have passed similar laws, and New York has a labor law governing the collection of biometric information, but unlike BIPA they do not create an individual right to sue.

BIPA governs “biometric identifiers” and “biometric information.” Biometric identifier means “a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry.” Biometric information means “any information … based on an individual’s biometric identifier used to identify an individual.”

To comply with BIPA, companies that collect or possess biometric identifiers or information must satisfy six statutory provisions.

  1. Written policy. Companies must have a policy, “made available to the public,” that describes their retention schedule and guidelines for permanently destroying the biometric data it handles. Importantly, the policy must provide for the destruction of a person’s biometrics at the earlier of (a) when the company’s initial purpose for collecting that information has been satisfied; or (b) within three years of the person’s last interaction with the company.
  2. Written notice. Companies must provide written notice to each person whose biometrics it handles, stating (a) that it is collecting/storing their biometrics; and (b) the specific purpose and length of term for the collection, storage and use.
  3. Written release. Companies must obtain a “written release” from each person whose biometrics will be handled.
  4. Consent to disclose. Companies that disclose biometrics to third parties must, in most circumstances, obtain consent to do so.
  5. Safeguard. Companies must store, transmit and protect the biometrics it handles in a manner that is both reasonable and commensurate with the protection it affords similarly confidential and sensitive information.
  6. Do not use biometrics for profit. Companies must never sell, lease, trade or “otherwise profit from” the biometrics it handles.

Courts Interpreting BIPA

Though BIPA was enacted in 2008, it was not the subject of litigation until the past few years, and the most dramatic uptick in filings occurred in late 2017. The majority of those actions involve the same basic factual situation: a current or former employee is suing because they scanned their finger to clock in and out of work.

But the most important BIPA case so far, decided Dec. 21, 2017, has a slightly different context. In Rosenbach v. Six Flags, the plaintiff, Stacy Rosenbach, sued Six Flags Entertainment Corp. and Great America LLC under BIPA for scanning her son’s fingerprints to verify his identity as a season pass holder. The Illinois Appellate Court ruled that a plaintiff “must allege some actual harm” to sue under BIPA, adding that “[i]f a person alleges only a technical violation of [BIPA] without alleging any injury or adverse effect, then he or she is not aggrieved and may not recover[.]”

The Illinois Appellate Court’s ruling makes sense. First, looking to BIPA’s language, only a “person aggrieved” is permitted to sue, strongly indicating that a plaintiff must allege an actual injury. Second, from a practical perspective, the vast majority of plaintiffs acknowledge voluntarily scanning their own fingers. Even so, this decision is poised to have far-reaching implications, and it seems likely that the authoritative interpretation of “person aggrieved” will ultimately come from a future decision of the Illinois Supreme Court.

With all this in mind, what can you do to minimize the risk and expense that biometric privacy class actions pose to your business?

First, determine whether any biometric privacy laws apply to your business. This may require consulting with an attorney familiar with biometric privacy laws and professionals who understand your underlying technologies. Even if your business does not collect biometric data from Illinois, Washington, Texas or New York residents, consider whether it might in the future or whether similar laws may be adopted in applicable jurisdictions (Michigan and Connecticut are considering similar laws). Second, if biometric privacy laws apply, understand the requirements and get into compliance. Regardless of whether you have been sued, you will need to determine whether your existing policies and practices satisfy some or all of the biometric privacy legal requirements. For those policies and practices that are noncompliant, you will need to design and implement new ones. Finally, if you have been sued, then in addition to assessing and remediating compliance issues, your attorney will need to consider employing certain strategies inherent in these cases with the potential to reduce litigation costs and increase your chance of success.

The recent spate of BIPA lawsuits represents a coordinated effort by the plaintiff’s bar to catch corporate legal departments off guard. Nevertheless, it is less likely an anomaly than a sign of things to come as biometric technologies continue to pervade our personal and business lives. Companies would do well to assess their technological and legal options and vulnerabilities now and to maintain vigilance over this emerging field in the future.

Patrick J. Castle is an attorney and Anna S. Knight is administrative managing partner with Shook, Hardy & Bacon in Chicago. Comment below or email editors@workforce.com.

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The Intelligence Test’s Place in Hiring

Andie Burjek, Working Well blog

Conference season is in full swing, and I’d love to share some takeaways with you! I attended a Society for Industrial and Organizational Psychology conference in Chicago on April 19 and 20, and the speakers I saw and topics they discussed were fascinating.

I-O psychology, also known as workplace psychology, is “a branch of psychology that applies psychological theories and principles to organizations,” and a major focus of this field are areas like increasing workplace productivity and improving the mental and physical well-being of employees. It also strives to best match an employee with a job role. That’s what I’d like to explore in this blog: the role of the IQ test in recruitment.

To me there’s something inherently interesting to me about the potential tension between science and practice. That is, a researcher can discover some objective scientific fact (or at least a very well-supported hypothesis that could technically be disproved at some point in the future), and how that discovery is put into practice might be questionable.

I’ve mentioned before a fantastic book called The Gene: An Intimate History by Siddhartha Mukherjee, who explores the history of genetic discoveries, including the inception of the IQ tests and the inquiries from researchers on whether or not intelligence is genetic. According to the book, Stanford psychologist Lewis Terman created this IQ test in 1916 to determine whether someone’s mental age was equivalent to their physical age. It’s important to note that he was a supporter of the American eugenics movement, which posited that certain races were inherently superior and more intelligent than others.

This brings me to two speakers at the SIOP conference. Dr. Thomas J. Bouchard, professor emeritus, University of Minnesota, won the SIOP’s Dunnette prize for his 20-year study MISTRA — the Minnesota Study of Twins Raised Apart. His speech focused on the findings of this research, which found a strong genetic link in IQ test scores. Joel P. Wiesen, meanwhile, gave a lecture on the limitations of using IQ tests only to rank police officer applicants and suggested 15 alternative ways police departments could rank applicants — along with pros and cons of those alternative options.

To me, these two represented the theory and the practice sides of psychology.

Bouchard’s research in the twin studies was extensive and impressive. He launched the study in the 1970s in a very anti-IQ environment. One argument was that IQ tests equal racism, which he wanted to disprove. Another argument stated that a person’s abilities, activities and attitudes cannot be measured; Bouchard disagreed. A notable debate at the time was if intelligence was influenced by genetics or socioeconomic status and the opportunities that came with the status.

What Bouchard ended up finding was a strong link between IQ scores and genetics. Twins growing up apart in very different environments did not change the similarity that had in general intelligence.

I came out of the sessions with several questions: Since the IQ test was man-made by a person who had certain beliefs and who lived in a certain time and place in history, aren’t there inherent biases within it? Isn’t that true with any man-made assessment? How significant should a person’s IQ be in their job prospects?

I learned a lot about the science behind IQ, but what are the limitations of IQ in practice? What if what one person considers a trait of an intelligent person is not what another person considers a trait of an intelligent person? I also thought of kids with whom I attended to high school who were very intelligent but did badly on standardized tests because they were nervous or bad at taking tests. Could the same principal apply to IQ tests?

Bouchard did not address these. The focus of his presentation was his research, so as an attendee I do not know his point of view on how IQ tests should be used in a professional setting or how much weight we should give the IQ score in evaluating the fitness of a person for a job. Wiesen’s lecture on IQ and hiring in police departments did, however, provide many answers for me.

When police departments rely on a narrow IQ test to rank applicants, they often find that white applicants have higher scores, on average, than other applicants, which ends up decreasing the diversity of the police force. He also brought up the fact that, long ago, psychologists were at the forefront of the eugenics movement [See: Lewis Terman], which brings up a moral issue. How could psychologists have been so wrong, he asked, and isn’t it technically possible for them to be making similar mistakes now?

He made alternative suggestions for how departments could rank applicants instead. One of my favorite suggestions was the “Greatest Strength Method.” That is, when applicants take a variety of tests of different competencies, they’re considered for what they performed best on. That way, you get a workforce that is not cookie cutter and has a variety of strengths.

I found this to be especially relevant considering the current political climates surrounding police officers and civilians, and the discussions around #BlackLivesMatter and #BlueLivesMatter.

So, what do you think? How large should the role of intelligence testing (or really any formalized testing) be in recruitment?

Other Observations: One speaker brought up a term that’s new to me: psychological capital, described as a combination of hope, resiliency, self-efficacy and optimism that leads to positive workplace outcomes like higher performance and better job satisfaction. This speaker connected psychological capital with practicing mindfulness, but I’m curious: What do you do to develop psychological capital in your organization?

In a panel discussion about the positive and negative impacts of technology, the panelists brought up an interesting point of view. They believed people aren’t addicted to their phones (they’re just dependent) and seemed pretty annoyed that the media likes to ask questions about phone addiction. (I was entertained by that comment.) One panelist mentioned how people aren’t addicted to their phone because this dependency is more of a sign that people inherently need to connect with other people.

My reaction: Sure, the word addiction is probably overused but I can think about a lot of people who could be much less dependent on their phones. Also, I wonder if there’s room in this workplace discussion about social connection, teamwork and collaboration to also acknowledge the value of knowing how to be alone, work alone and disconnect from technology once in a while.

What do you think? Do you think this talk about phone addiction hype is all hype? Do you see technology as more of a tool or a crutch at your organization?

Andie Burjek is a Workforce associate editor. Comment below or email editors@workforce.com.

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Blockchain: The Future of HR?

Blockchain is best known as the infrastructure behind bitcoin and other cryptocurrencies that makes financial transactions safe without a bank or other middleman. But the technology could soon change the way human resources leaders handle all sensitive data.

That has big implications for HR, said Jeff Mike, vice president and HR research leader for Bersin by Deloitte. “The reason it is relevant is that blockchain creates the potential for personal data to be owned by the individual rather than the organization,” he said.

That means every employee could potentially maintain control over their entire academic and work identity, including where they went to school, their grades and degrees, and their work history and training. “It would be more secure and more portable, moving with the individual instead of getting stuck inside the organization,” he said.

What Is Blockchain Anyway?

In a nutshell, blockchain is a peer-to-peer network of ledgers that encrypts and stores blocks of data and digital history, and can be viewed and verified by anyone in the network. Every time new data is added it extends the ledger’s chain of blocks. The public nature of blockchain is what makes the technology unique, said Tim Griffiths, chief technology leader of Xref, an automated reference checking company in Sydney, Australia.

“Every time you add data to a block it is confirmed by the network,” he said. For example, a university might verify completion of a degree, or an employer could confirm dates of employment. Once data is added to a ledger, it is updated across the network. Ledgers can be added to but not altered, ensuring information remains safe and uncompromised — if someone tries to alter a ledger, everyone else on the network is able to see it, Griffiths explained. “It guarantees the data is certified and can’t be manipulated.”

It provides a way for two parties to safely complete transactions — including payroll and contract payments — without a bank or other intermediary. But safety isn’t just useful for financial transactions, said Stacey Harris, vice president of research and analytics for Sierra-Cedar. “Any time you have sensitive data that needs to be verified, moved or shared there is a place for blockchain.”

Health care is a perfect example. Many employees who get health care benefits through their employers don’t want to share their health history with their company. But in order to choose providers and secure services, the employers acts as an intermediary to share that data.

If the employee owns that data via blockchain, it removes the need for a third party, Harris said. “Any time a piece of data is touched by another human it create risk that the data will be lost or used inappropriately,” she said. “Blockchain reduces that risk.”

Blockchain also has the potential to streamline a lot of the drudge work related to employee data verification, said Griffiths. If all of a candidate’s education, certifications and work history were stored in a single ledger it would take minutes rather than days to verify that data. “Education checks are the biggest pain point in the background check process,” he said. “It’s the ideal use case for HR.”

Where to Begin

All that said, the days of instantly verifying an entire work history or streamlining health benefits via blockchain are a long way off.

“This is still a nascent field for HR,” Harris said, though she notes that the influx of venture capital flowing into blockchain startups suggests the industry could evolve quickly. Early adopters such as Bitwage are already using blockchain to streamline overseas wages and secure contract payments, and companies like Xref are exploring the use of blockchain in background checks. But none of these applications have gained traction — yet.

The big challenge is where to begin. Like the internet or the rollout of electronic health care records, blockchain for HR will only add benefit when it achieves scale. For example, if every candidate had a blockchain verifying their degree, it would significantly speed the education background check process — but if only a handful of universities provide that data in blockchain, it doesn’t add much value, Griffiths said. He predicts that we are still two to five years away from seeing any meaningful applications of blockchain in HR.

This doesn’t mean HR leaders can afford to completely ignore blockchain.

“You don’t want to get caught up in the hype, but it is worth paying attention to,” Mike said. He encouraged HR leaders to get familiar with the technology and to talk with their IT leaders about how it works and how it could affect the way they practice HR in the future. “If you no longer need to track down resources to verify records and record transactions, what ramifications will that have on the job?” he asked. These are the questions HR leaders should ask today, to be ready for the future. “It won’t change your life in the next six months,” he added, “but it is going to happen.”

Sarah Fister Gale is a writer in Chicago. comment below or email editors@workforce.com.

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Addressing #MeToo in the Workplace and HR’s Response

The Civil Rights Act, which protects employees against discrimination both in and out of the workplace, was passed in 1964. More than 50 years later, sexual harassment and discrimination are still prevalent, and employees are demanding change.

The past year brought to light numerous new allegations of behaviors many people thought were long gone. While there seems to be an epidemic of sexual harassment in certain industries, no industry is immune. Employees have lost patience and are demanding change through the #MeToo movement. Human resources departments are stepping up to join the conversation and take advantage of the dialog to positively impact organizations and eliminate sexual harassment and discrimination. Harassment and discrimination boil down to respect. Whether an employee is protected by federal or state law, companies with a culture of respect are going to be more successful in their efforts to eradicate harassment.

While companies may already have policies in place, employers can no longer assume that employees are exclusively treating each other in this way. Leadership and HR must take an active role in ensuring that respect is part of the daily culture and not solely rely on policies that merely fulfill compliance requirements.

Employers must think strategically about a focused plan surrounding diversity, inclusion and equality in the workplace. This plan should include effective training, empowerment and leadership.

Training

In 2016, a report published by the Equal Employment Opportunity Commission’s Select Task Force on the Study of Harassment in the Workplace found that sexual harassment training hasn’t helped to decrease harassment in the workplace. HR is left questioning, “Is it the training that has failed? Or is it the culture around the training?” If training is merely thought of as checking the box, then the EEOC’s findings aren’t surprising. But if employees are internalizing what they’re learning and it’s affecting the culture, then it can have a positive impact. To be effective, it takes more than implementation. Employees need to be held accountable for their actions beyond attendance of these seminars. Training can be the first step to institute culture change, but it has to be done right and be current with the times and the laws.

A successful training program should cover the key components of the harassment policy as outlined by the EEOC and any additional state-mandated guidelines. Managers should be equipped with additional resources on handling complaints, escalating complaints to the appropriate person within the organization and conducting investigations. Due to the importance and sensitivity of the training, it’s recommended that it be done in smaller groups and face-to-face, rather than through videos or webinars where employees could more easily tune out what is being said.

Empowerment

While training is the first step to educate employees about harassment and discrimination, as history has taught us, training alone isn’t enough. It’s critical that training and HR programs not only outline what to do when faced with harassment, but employees and managers are empowered to act as well. It’s become increasingly evident in the last year that employees don’t always feel comfortable speaking up. The common theme coming out of the #MeToo conversation has been that employees felt they didn’t have options and harassment was necessary to get ahead in their careers. Fear of retaliation was and is real, resulting in many employees not coming forward until the empowerment of #MeToo. Children are taught at a young age not to be bystanders and to stick up for others. Empowering employees in the same way is the key to changing the workplace culture to one of respect.

Lead By Example

Empowerment will only happen if the leadership of an organization embodies its core values and sets an example. Lip service to harassment policies isn’t enough. Employees need to see leadership and HR take action. A powerful employee can no longer be able to get away with it simply because of their stature in an organization. No employee, including top performers, are above the law and to truly create a workplace of respect, leadership needs to take action

The #MeToo conversation has sparked a shift in how we view harassment in the workplace. Employees are not willing to sit by and tolerate harassment. Awareness of harassment and the laws aren’t enough. Action has replaced reaction and HR is at the forefront of implementing this change. In the past, action around harassment and discrimination may have taken a backseat to other seemingly more “pressing” HR needs, and now these issues are taking a more front and center role through education, knowledge, empowerment and leadership.

Rebecca Blake is the managing director and Nancy Saperstone is the senior HR business partner and communications specialist at employee benefits company OneDigital. Comment below or email editors@workforce.com.

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Harassment Prevention Must Start at the Top

Jon Hyman The Practical Employer

If you did not watch the May 20 edition of 60 Minutes, you should. 

The last segment detailed pervasive and rampant sexual harassment by famed chef and TV personality Mario Batali.

And it laid much of the blame at the feet of the CEO of one of the restaurants in which Batali invested, The Spotted Pig, and its owners, Ken Friedman and April Bloomfield. The segment argues that Friedman and Bloomfield turned a blind eye to years of Batali’s sexual harassment of the female employees of their restaurant and knowingly allowed it to continue.

In the report of the EEOC’s Select Task Force on the Study of Harassment in the Workplace, the agency suggests four pillars to any effective anti-harassment program. Its first pillar is that harassment prevention “starts at the top.”

According to the EEOC:

Workplace culture has the greatest impact on allowing harassment to flourish, or conversely, in preventing harassment.… Organizational cultures that tolerate harassment have more of it, and workplaces that are not tolerant of harassment have less of it.… If leadership values a workplace free of harassment, then it will ensure that harassing behavior against employees is prohibited as a matter of policy; that swift, effective, and proportionate responses are taken when harassment occurs; and that everyone in the workplace feels safe in reporting harassing behavior. Conversely, leaders who do not model respectful behavior, who are tolerant of demeaning conduct or remarks by others, or who fail to support anti-harassment policies with necessary resources, may foster a culture conducive to harassment.

If you believe the 60 Minutes report (I have no reason not to), none of this occurred at The Spotted Pig.

If you want ensure you are doing everything you can as an organization, start by taking a hard look at yourself and your leadership and answering these key questions:

  • Do you foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted?
  • Does you behavior communicate and model a consistent anti-harassment commitment?
  • Have you devoted sufficient resources to effective harassment prevention efforts?
  • Have you nurtured an environment in which employees are comfortable coming forward with complaints of harassment that will be taken seriously, investigated, and corrected, all free from retaliation?
  • Do you impose swift, proportional, and consistent discipline (without playing favorites or showing favoritism) when you have found harassment to have occurred?
  • Do you hold managers and supervisors accountable for preventing and responding to workplace harassment?

Unless you’ve answered “yes” to each of these six questions, then I suggest that you are not doing everything you can to create a top-down, holistic, anti-harassment strategy. Which means that you are not doing everything you can to protect your most valuable asset … your employees.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

 

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Five Practical Ways to Support Mental Well-being at Work

The American Institute of Stress reports that stress is the nation’s top health problem. This makes sense, as mental capacity is highly valued in the workplace but can also be highly vulnerable. Today’s workplace, with technology, fast-paced growth and decreased resources, can contribute to increased stress.

Companies should value the mental health of their employees as a top asset and fiercely protect it. Mental well-being impacts engagement, presenteeism, absenteeism and productivity — all of which impact businesses bottom lines. More importantly, supporting and protecting the mental health of your employees is the right thing to do.

Here are five best practices to support mental health in the workplace.

  1. Normalize the conversation.

Top-down support of mental health is crucial in creating an open dialogue, as is an open-door policy. Senior leaders should participate in the conversation about mental wellbeing to show buy in. Normalizing the occurrence of a grief reaction or stress disorder can insure that your employees seek help when it happens to them.

Establishing mental health champions within your organization is another way to encourage a healthy dialogue. People with mental health conditions who want to help others are great candidates for this role.

Use awareness days that focus on stress and mental health as external nudges to educate staff about these important issues. Importantly, remind staff that a diversity of perspectives, including those with lived mental health experiences, are valued and encouraged in inclusive environments.

  1. Implement strong policies and procedures.

Disclosure can help an employee seek the appropriate resources and care before conditions worsen, so having proper policies and procedures in place are important in removing barriers to disclose.

This includes protection against discrimination, which is usually a top concern for employees, as well as providing appropriate workplace accommodations. Ensure managers are aware of key resources, like employee assistance programs, and maintain confidentiality when an employee discloses information.

Beyond this, educate employees on policies, procedures and proper protocols to increase employee awareness. Here’s a tip: Repeat key messages and tailor your communications to better reach your staff.

  1. Prevention is better than cure.

It’s essential to remember that anyone is susceptible to stress and a resulting decline in their mental health, whether a preexisting condition exists or not. Big life events like having a baby or losing a loved one and every day struggles like money worries, relationship issues or work-related stress can cause or aggravate mental health conditions to the point of interfering with work. 

Mental wellness sessions or work/life balance programs can help. Bring in an expert and talk to your staff about how to safeguard their own mental health, build resilience and recognize signs of distress in others.

  1. Tailor your benefits package to support mental wellbeing.

Choose a major medical plan that gives employees access to quality mental health specialists in network, as these costs can add up significantly. Helping employees have access to and triage the right specialist support is crucial in managing conditions.

EAPs can act as a first line of defense for a wide range of problems – from money and relationship worries to support for working caregivers. They provide both practical and emotional support for employees through confidential counseling and can help prevent issues from escalating and impacting productivity. These programs are often offered as part of a major medical or disability plan, so your company may already have access to them.

Money worries can also take an emotional toll on wellbeing. In fact, financial concerns were the leading cause of stress across all generations in a recent consumer study conducted by my company, Unum.

Help your employees establish a strong financial foundation by offering financially-focused benefits, like life and disability insurance, retirement savings options and supplemental health benefits that can close the rising financial gap in medical plans.

If your budget doesn’t cover these benefits, consider offering them on a voluntary basis. Access to financial protection benefits are more affordable when offered through the workplace, even if the employee picks up the cost.

Flexible hours or remote working options can also help employees schedule their work days when they’re feeling most productive. This can help reduce presenteeism for mental ill-health, and it also signals to employees that you’re supportive of a healthy work/life balance.

  1. Encourage self-care.

Self-care plays a critical role in overall wellbeing. Encourage employees to do small tasks that’ll help them build resilience over time.

The basics like getting plenty of sleep, eating healthy, drinking water, and exercising are foundational in overall wellbeing.

Beyond these staples, developing appropriate time management and work/life balance skills are also important. Delegating and collaborating are also key to ensure healthy work behaviors which also decrease stress.

While technology and our always-on culture make it hard to disconnect, encourage employees to set device off-times so they can fully recharge before the next day. And most important, model this behavior to your staff and limit after hours work and emails.

Having a holistic mental well-being strategy that includes prevention, intervention and protection is essential for unlocking a workforce’s true potential.

Michelle Jackson is assistant vice president for workforce solutions at employee benefits provider Unum. Comment below or email editors@workforce.com.

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7 Things Employers Must Know About the I-9 Form

Jon Hyman The Practical Employer

Earlier this week, the Trump administration announced that it has doubled the number of worksite investigations and audits conducted by Immigration and Customs Enforcement.

Its express goal is to make sure businesses are not employing people who are in the U.S. illegally.

What is such an audit? Simply, it’s a review of business records, specifically I-9s.

In light of this news, over the next two posts I’ll be taking a deeper look at employers’ obligations to comply with immigration laws. Today, we’ll examine the I-9 itself, and tomorrow we’ll discuss what to do (and, maybe more importantly, what not do) if ICE or another agency shows up at your door asking about I-9s.

What do you need to know about the I-9 Form? Here are seven important things that should be front of mind:

    1. I-9s are low-hanging fruit for any employer. The government makes the form available online, complete with instructions to how to fill it out.
    2. You must complete an I-9 at the beginning of employment for every employee you hire (except for employees hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times). It does not apply to independent contractors (but be wary of who is, and is not, a bona fide independent contractor).
    3. An employer’s I-9 obligations do not depend on the citizenship of the employee. All employees means all employees, regardless of citizenship or nationality.
    4. All employees also means all employees regardless of tenure or length of service. The obligation to retain an I-9 for each person hired applies from the date of hire, even if the employment ends shortly thereafter or if the hired employee never completes work for pay.
    5. Employers must retain I-9s for the later of three years from the date of hire, or one year from the date of termination. You can choose to retain them on paper, microform (really), or electronically.
    6. You may choose to copy or scan documents an employee presents when completing an I-9. Making photocopies of an employee’s document(s), however, does not take the place of completing or retaining the I-9 itself. If you choose to retain copies of an employee’s documents, to avoid a Title VII violation you must do so for all employees regardless of actual or perceived national origin or citizenship status.
    7. The Department of Homeland Security, the Department of Labor, and the Immigrant and Employee Rights Section of the Department of Justice are all authorized to inspect an employer’s I-9 forms.

Also read: Raids on 7-Elevens a Stark Lesson in I-9 Immigration Compliance

And this is where we’ll pick up tomorrow: What do you do when then feds show up at your door?
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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A Planning Primer for the First-Time Manager

You did it! You’re a manager now.

Did you update your LinkedIn headline? Great. With that out of the way, it’s time to roll up your sleeves and get down to business.

No surprise here, but being a manager is hard work. It doesn’t come naturally to many people, but the good news is with the right foundation you’ll be on your way to becoming a great leader.

While every week will present new challenges, the first week will be a deep dive into the trials of managing your employees as well as meeting the expectations of executives above you. With so much on your plate and you brimming with excitement and trepidation, here’s a seven-day rundown to help keep you focused as you begin your managerial journey.

Now, before you go into full TED Talk mode at your debut team meeting, take time to pause, breathe and assess the situation facing you. You’ll be onboarding for part of the day, but take time to mentally audit the tools and resources you have available and the ones you do not.

If you work at a large company, you likely have experienced and dependable human resources professionals there to guide you as you begin your managerial duties. But if you’re at a smaller company or a startup, it’s probably you against the world.

Some important questions to consider as you get through Day One:

• What does your company’s HR team look like?

• Who are the key people to get to know?

• What are the key processes you should be familiar with when it comes to management training and team development?

• When are performance reviews?

• What’s the process as a manager?

• How are bonuses paid out?

• What is the manager’s role in that process?

• What is the process for when an employee is failing to meet their objectives?

Once you assess and get a full grasp for what your department is like, you’ll be able to have a deeper understanding of your team and know how to communicate with them more effectively.

Whether you were promoted up from within a team or are starting a brand-new job as a team lead, you’ll want to get acquainted with their personalities as well as their dynamics with each other, early on.

Don’t wait to schedule one-on-ones with all team members to get a sense of their overall engagement and job satisfaction. Set the tone early by transparently and candidly getting to know them as individuals: What motivates them, what frustrates them and where do they see their career going in the future.

The best piece of advice for the early conversations: Clearly communicate to your team members that you’ve got their back from the outset. Establish a foundation of transparency and trust early on that will carry through your relationship. Here are some things to explore during these get-to-know-you meetings:

• Career journey: How did you get to this job?

• What is your favorite thing about your job now?

• What do you wish there were more of?

• How do you feel about senior leadership?

• How do you feel about the team’s overall dynamics?

• How do you feel about the office environment?

Tiffany Pham, CEO and founder of Mogul.

• What are your personal career goals and how can I help create a plan to get there?

And here’s a meeting tip from a pro: Tiffany Pham, CEO and founder of Mogul, says she prefers to schedule one-on-ones with her team members outside of the office. “I never eat alone,” she told me. “By getting your team members out of the cube and into a more relaxed setting, you’ll learn more about them and how their work and their lives intersect.”

So find alternative ways of connecting and getting to know your team and start setting up time in your schedule to make it happen. Set up a quick lunch, coffee or even walk around the office, as they can all be healthy ways to connect with your team.

You can read blogs and advice books until you’re blue in the face, but know this: The single best way to become a better leader is to watch a great leader in action. Whether your company is 10 people or 10,000 people, strong leaders will stand out. Identify a leader who matches with your own leadership style or personality and invite them to coffee to propose a mentorship relationship to them.

When setting up these meetings, avoid vague phrasing such as “I’d like to pick your brain.” Explain exactly what you hope to benefit from the relationship, and set expectations for the mentor so they know exactly what to expect.

For example, perhaps you schedule a standing 20-minute coffee break, where you stroll out of the office and tackle one question or topic at a time. This makes the ask much more manageable for your mentor and also gives you a framework for guiding actionable conversations. Some topics to address with your management mentor:

• What do you wish you knew when you first became a manager that you know now?

• What is your advice for giving tough feedback?

• How should I celebrate wins within my team?

• What’s the best way to motivate the range of personality types on my team?

• How can I better collect feedback on my management style from the team?

• How can I lead by example when it comes to work/life balance?

Since you’re new to managing a team, you might think delegation is simply a matter of forwarding emails or assigning tasks that you might not want to do with others on your team. If you’ve had a bad manager at any point in your career, no doubt you’ve been on the other side of this equation.

Effective management is as much about scaling your talents across your direct report or team as it is about developing that person in their own role. Effective delegation involves pairing the right individual with the right tasks, and creating a framework for which types of tasks you delegate to whom.

One of the most important pieces of delegation involves providing context — that is, clearly communicating to your team what the objective of the task is and why it’s important to the team or company mission. Here are some additional best practices to consider pre- and post-project:

Project communication. How you communicate the tasks you delegate will set the tone for the project ahead. Phrases like “I would like you to own this project end to end” and “Handle this ASAP” will have drastically different effects on your team.

Providing support and micromanaging are two very different things. Offer help or step in as needed, but create timelines that allow your team to learn and do with some breathing room for bumps along the way.

Give feedback. After a task has been checked off or a project wrapped, give praise for the positive and offer up ways to improve if critical feedback is needed. Always close the loop on the conversation.

You made it to Friday. Congratulations! There’s still work to do as a newbie manager.

Within the first week of being a manager, you’ll notice that the hours seem to slip by quicker than they used to. At many companies, managers operate as player-coaches, tasked with their own responsibilities while also being in charge of the performance and ongoing development of their teams.

With more on your plate, efficiency will become exceedingly important to maintaining a healthy work/life balance.

A 10-second Google search will yield hundreds, if not thousands, of time management tips. As a manager, it’s on you to develop processes that work for you and your unique work habits. Here are some hacks to test out in your first weeks:

Know your “top three”: Each morning, write down the top three priorities you want to advance on that day. Set clear and realistic milestones and hold yourself accountable.

Block your calendar: Instead of creating to-do lists, block windows in your calendar to complete specific tasks or projects within a given window.

Stop multitasking: Interruptions are the enemy of efficiency. Establish discreet windows for checking email and hold “office hours” so your team knows when you’re available for questions (and when you need to focus your attention elsewhere).

Prioritize and say no. Savvy managers know how to rank the projects that are most important to the team and company objectives. They also know when to say “no,” or push things off to a later date.

OK, so technically Day Six is Monday.

But it’s a continuation of your first-week indoctrination in your new role.

Giving and receiving feedback is one of the easiest ways to create stronger relationships with your teams, yet too few managers have feedback systems in place.

The real-time nature of work means that communication has become instantaneous and ongoing, and yet most companies still rely on annual reviews or infrequent employee engagement surveys.

By the time managers receive the data, it’s no longer timely and probably not actionable. Whether you rely on technology to collect and give team feedback or not, the most important step to take is to formalize feedback loops early.

Continue setting the tone in your first week by reinforcing that you welcome open and transparent communication. Clearly communicate to teams how and when they can provide feedback to their manager.

A common pain point for new managers is the pressure of having other individuals dependent on you for success. While your team is ultimately supporting the priorities you set as the team leader, your support of them is perhaps even more important.

You might be familiar with the term “servant leadership” coined by Robert K. Greenleaf in 1970. Within this philosophy, managers focus on team development as their top priority, tirelessly working to “serve” their teams in this capacity.

Servant leadership requires a tangible presence of the manager in the lives of their team members, one that emphasizes support and guidance as opposed to micromanagement. Here are some quick ways to exert yourself as a servant leader:

Be an active listener. Give your team members a platform for providing feedback and make that feedback actionable.

Demonstrate empathy. Make it a point to gauge how your team members are feeling not just at work, but in their lives more holistically.

Work on your self-awareness. Understanding your own strengths and weaknesses will allow you to serve your team better.

Do You Want to Be a Better Manager?

It obviously takes longer than a week of self-reflection to be considered a great manager. It’s a long process that will require you to get to know your employees, your company, and most importantly you’ll have to make sure to know your own strengths and weaknesses.

If you want to be a great manager, it’s important to be curious and keep a growth mindset. You’ll always have to learn and do a little more to understand the needs of your employees.

As a manager, you’ll have to know what to do in order to push your employees to be successful individuals who will shine at your company and beyond.

David Mendlewicz is the CEO of Butterfly.ai, an AI-driven software that harnesses employee feedback to create a customized learning experience for managers. Comment below or email editors@workforce.com.

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Sympathetic Does Not Always Equal Protected Under the ADA

Jon Hyman The Practical Employer

Today’s opinion is a lesson straight out of the school of hard knocks. No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it’s just not on his side.

When an opinion starts with this quote, you know that the plaintiff is not going to have a good day.

What happened in Sepúlveda-Vargas v. Caribbean Restaurants, LLC (1st Cir. 4/30/18) to garner this tough life lesson from the court?

Victor Sepúlveda-Vargas worked as an assistant manager in a Puerto Rico Burger King owned and operated by Caribbean Restaurants. While making the nightly bank deposit, Sepúlveda was robbed at gunpoint, hit over the head and had his car stolen. As one might expect, Sepúlveda did not come out of the incident mentally unscathed. In fact, he suffered post-traumatic stress disorder and major depression.

Caribbean Restaurants requires its managers to work rotating shifts, and considered the requirement an essential function of the job — to spread among all managers the burden of working undesirable shifts.

Those rotating shifts would have required Sepúlveda, upon his return to work, from time to time to work the night shift on which he was robbed and assaulted. Instead, he requested a set schedule as a reasonable accommodation.

Initially, the employer granted Sepúlveda’s request. A couple of weeks later, however, it reconsidered and retroactively denied the accommodation, informing Sepúlveda of the essential nature of the rotating schedule.

Sepúlveda sued, claiming that that Caribbean Restaurants failed to reasonably accommodate his disability in violation of the ADA.

As you’ve likely gathered from the lede, Sepúlveda lost, based on the rotation as a essential function. The court was not only un-persuaded by Sepúlveda’s story, but also by the fact that the employer had initially granted the accommodation.

While … Caribbean initially granted Sepúlveda the accommodation on a temporary basis, that fact did not mean that it conceded that rotating shifts was a non-essential function.… To find otherwise would unacceptably punish employers from doing more than the ADA requires, and might discourage such an undertaking on the part of employers.

Essential functions are called essential for a reason. And while I can see an argument that waiving one by granting an accommodation lessens its essential-ness, this court saw it differently. An employer may (but is not required to) go above and beyond that which the ADA requires. And to punish an employer for doing so will only serve to deter employers from exceeding the ADA’s requirements in the future.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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Think You Need Cultural Sensitivity Training? Think Again

I’ve been getting more requests for cultural sensitivity training lately.

The scenario is almost always the same: Manager has a habit of saying inappropriate things to staff or customers. One day, one of those staff members or customers files a complaint, or shares evidence of the bad behavior on social media (or both). The organization then launches a frantic search for “cultural sensitivity training” for the offending manager.

If your organization is on such a frantic search, or would like to avoid being in that position, these are the inconvenient truths that will actually solve your problem. Usually, “cultural sensitivity training” won’t.

Training is a solution only if lack of knowledge or skills is the problem. Does the manager know what behaviors are appropriate and inappropriate? If they do and they’re behaving inappropriately anyway, then training won’t fix the problem — you need accountability and progressive discipline (or termination). If they don’t, training may actually help. But if this is the case, the manager’s gap in knowledge and skills raises two questions: (1) How were they never onboarded or trained properly in the first place? (2) How were they hired or promoted into a leadership position without first possessing necessary basic skills in empathy, emotional intelligence and effective communication? The answers likely point to systems flaws that must be addressed to avoid similar problems.

Trainers can’t do a manager’s job. Trainers cannot hold your staff or leaders accountable for doing appropriate behaviors in the workplace. That’s their boss’s job.

If a person has been allowed to treat people inappropriately over time with no meaningful consequences, the problem is a lack of leadership and accountability in your organization. Leaders who allow a handful of people, or one person, to bully and disrespect others, bring down morale and put your reputation and revenue at stake are poor leaders. They are stifling productivity and innovation and creating risk and liability for your entire organization.

Take a stand for your excellent employees, your mission, and your future, and put a stop to the inappropriate behavior. It’s a sad fact that many capable people who excel at their jobs are rewarded by being promoted into a new role (leadership) that requires an entirely different skillset. Leadership is difficult, and it’s not a fit for everyone. If you’re struggling with being a fair yet decisive leader who holds people to high standards, examine your willingness to grow and get mentoring and coaching if you are.

“Cultural sensitivity training” is insensitive, insulting and “old school.” Sensitivity should not be your goal. It’s results. Behaviors that disrupt or destroy an inclusive culture get in the way of results. Behaviors that interfere significantly with people bringing their best selves to work should not be tolerated, and only accountability makes this happen. “Sensitivity training” rarely provides people with clear behavioral guidelines and communication skills. It can encourage an eggshell-walking culture that reinforces a power imbalance and the patronizing notion that non-dominant groups (women, people of color, LGBTQ, etc.) are fragile and need special handling. It doesn’t usually invite them into exploring their own power and opportunities to build skills while dominant groups are being taught to be more “sensitive” by confronting their blind spots and negative impacts.

A more effective approach starts with (again) asking the right questions: Did the person know the behavior was inappropriate? If not, what larger issues lead to the gap? How will the person be equipped to be more effective moving forward, and held accountable for doing so? Also, what opportunities does this situation present in terms of our work culture? How can we give each other feedback about a boundary being crossed? How can we all take ownership for our experience in creating an inclusive culture that’s appropriately mistake-tolerant? A skilled facilitator can help you explore these questions together, and an effective trainer can help your team develop more skills to bridge behavioral gaps. “Sensitivity” may be an intention, but should not be the goal.

Cultural sensitivity training doesn’t cure an a**hole. Intent does not equal impact. Sometimes “good” people do and say “bad” things because we weren’t thinking or didn’t realize the negative impact of our actions.

Once provided with feedback about the impact of our behavior, and the reasons for that impact, emotionally healthy and psychologically mature people take in the information, mend the relationship and adjust their behavior. People who are unwilling or unable to see other perspectives, insist on the “rightness” of their bad behavior, demonize those who experienced a negative impact, and respond to solution-oriented feedback with resistance and blame have a bigger problem. Anyone can have a shame-and-blame reaction if they’re blindsided by feedback or under tremendous stress. But if shame-and-blame is their pattern over time or general attitude, the question becomes: Is this person a good fit for their role, or for your organization?

Rehabilitating sociopaths is not your job. Getting meaningful results that matter and supporting your effective team members to create more excellence should be your goal.

Susana Rinderle is president of Susana Rinderle Consulting and a trainer, coach, speaker, author and diversity & inclusion expert. Comment below or email editors@workforce.com.