Rick Bell – Page 71

July 6, 2017June 29, 2023

With Benefits, It’s Good to Get Back to the Basics

When faced with increasing employee health care cost, budgetary pressures and pending renewal deadlines, it is all too common for employers to make reactionary decisions about their employee benefits program.

Given the integral role that benefits programs play in attracting and retaining top talent and their position as one of a company’s largest expenses, does it make sense that benefit program decisions are often short-term fixes that don’t align with a company’s strategic initiatives and employee brand?

Employers that invest time in advance to take a thoughtful, strategic approach to benefit planning reap the value of having a framework upon which to base future decisions, a program that is integrated with overall business objectives, and clear metrics to evaluate progress and success. In addition, by creating goals and guiding principles, they enable their benefits consultant to more successfully suggest new approaches that are tailored to the company’s specific needs and will better align with corporate goals in the long term.

Best practices of employee benefit strategic planning include:

Assess the current state of the benefit plan, major challenges and the rationale behind existing offerings. Employers often have benefit offerings in place that are vestiges from decisions made years ago that are no longer relevant to the current environment and employee population. Organizations should evaluate their plans with fresh eyes to assess whether the current offerings are still relevant. If not, consider what changes could be made to align the plans with employee needs and company goals. Benchmark data is invaluable during this process to help the organization understand how its offerings compare to others in the same industry, region or talent market.
Define the company’s reasons for offering benefits. Employers offer benefits for a variety of reasons, including the attraction and retention of talent, ensuring that employees have access to health care and robust benefit offerings, and complying with regulatory requirements. A company that offers benefits to establish itself as an employer of choice in a competitive labor market should structure its benefit offering differently than one that offers benefits only to meet mandatory regulatory requirements.
Create a 3- to 5-year strategic plan for benefits that aligns with the overall corporate strategy. Benefits are an increasingly large budgetary consideration, so benefit program decisions should not be made in a vacuum by a few individuals that are not connected to the organization’s financial planning. Because benefit costs often impact the entire organization’s financial and strategic goals, company leadership and key decision-makers should actively participate in the planning process.
Establish benefit plan guiding principles upon which the organization will base future decisions. Does the organization desire to be an industry leader in offering a robust benefit plan? Are there set metrics about what percentage of benefits the employer wants to pay for an employee’s benefits or those of their family members? Does the company believe in offering a variety of plans to provide employee choice? By establishing clear guidelines as part of a thoughtful strategic process, future plan decisions are much more likely to align with company goals and have the support of company leadership.
Establish a one-year action plan that moves the organization along the path to achieve forward-looking long-term goals. Rather than making ad hoc decisions, create an action plan and calendar that establishes objectives and actions that align with the longer-term business goals. For example, if the company intends to introduce a high-deductible health plan in two years, the company can create their employee communication and education plan for that offering.
Define success metrics and celebrate successes through the year. Without appropriate procedures in place, it is easy to get caught up in daily responsibilities and concerns at the expense of driving toward desired long-term results. By establishing evaluation criteria for the benefit plan and reviewing progress at several pre-determined times throughout the year, a team is more likely to achieve goals and also to feel a sense of accomplishment and satisfaction for reaching those milestones. As the benefit program meets and exceeds goals, take the opportunity to celebrate those successes to keep the team motivated toward long-term objectives.
Repeat the strategic planning process each year. A strategic plan should be a living outline that evolves with the organization. In future years, the plan should be revisited and updated to recognize progress toward goals and set new objectives, as appropriate.

Suzannah Gill is a benefits strategy consultant at employee benefits insurance brokerage and consulting firm Epic. Rosemary Hughes is a senior consultant and principal at Epic. Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.

June 29, 2017June 29, 2023

One State Looks to put Enforcement Muscle Behind Workplace Concealed Carry Law

It’s been six months since Ohio made it illegal for employers to prohibit employees (or anyone else for that matter) from storing a firearm in their vehicles on the employer’s property. This law, however, lacks any specific statutory teeth (sort of). If Ohio legislators get their way, this omission will soon change.

Am. Sub. H.B. 49 proposes to add the following language:

A business entity, property owner, or public or private employer … may be found liable in a civil action for injunctive relief brought by any individual injured by the violation. The court may award injunctive relief it finds appropriate.

I’m not in love with this statute authorizing injunctive relief (especially when I’ve heard multiple clients balk at the original law). Yet, it’s a whole lot better than the original amendment, which proposed an award of compensatory damages, costs, an attorneys’ fees for a violation.

While I remain convinced that a law permitting employees to store firearms in their vehicles parked at work is a horrendous idea, it is the law, and it is about to have some enforcement teeth behind it. So, instead of complaining about it and threatening non-compliance, now is the time to invest in implementing an Active Shooter / Emergency Action Plan, so that your business knows how to respond in the event this evil enters your workplace.

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.

June 28, 2017June 29, 2023

More on Why Holding Lawyers Liable for Retaliation to a Client’s Employee is a Bad Ruling

Yesterday’s post discussing Arias v. Raimondo as the worst employment-law decision of 2017 was way more controversial than I imagined. To me, it’s a no-brainer.

It’s dangerous for courts to hold an employer’s lawyer liable for retaliation against the employees of the lawyer’s client. It will chill an attorney’s ability to give proper advice to one’s client, because anything that remotely could result in an employee suffering an adverse action could, under the logic of Arias, give rise to a retaliation claim. Then the comments rolled in:

As I said earlier, bad facts make bad law. Yes, the lawyer in this case blew the whistle to ICE and actively engaged with ICE agents to work a sting to detain and deport the plaintiff-employee. And that’s terrible if it was done, as it appears, for the purpose of gaining leverage in the wage/hour case.

But to hold the attorney liable for statutory retaliation against his non-employee establishes bad precedent. The Arias court does not rely on the degree of the attorney’s misconduct, or his active role in the ICE sting. The case hinges on its broad interpretation of the word “person” in the FLSA’s anti-retaliation provision.

To illustrate, let’s take this holding of Arias out of the context of its facts.

Suppose you’re outside employment-law counsel for a company. Your client calls you to request your help with an internal investigation. An employee has complained that her supervisor has been sexually harassing her. During that course of that investigation, you discover, through a review of the complaining employee’s corporate email, that she had not been performing her job. You report this malfeasance to your client, who fires the employee. She then sues for retaliation. Under the Arias holding, she can also sue the attorney. Before you tell me that Title VII defines retaliators differently than the FLSA, Ohio’s anti-retaliation provision in its employment discrimination law also defines its scope as “any person”. So while this result may be different under Title VII, under state laws like Ohio’s, Arias could work to hold an attorney liable.

Or, suppose you have an employee who takes FMLA leave for surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. As a result, you fire the employee for abusing and/or misusing FMLA leave by engaging in activities (verified by pictures posted on his Facebook page) that demonstrated his ability to return to work earlier than the end of the FMLA leave. Sound familiar? These are the exact facts of Jones v. Gulf Coast Health Care, which held the employer liable for FMLA retaliation. And, if that employer’s lawyer gives advice on the termination, under Arias, that lawyer could also be sued for retaliation.

I could go on, but you get the point. We attorneys need to be able to provide advice to our clients free from fear that our clients’ employees will sue us for retaliation when that advice results in termination, discipline, or some other adverse action.

We might win these cases more than we lose them, but we don’t want to be sued in these instances in the first place. Arias may have stepped over a line, but to use these facts to justify a broad rule makes it difficult for all management-side employment attorneys to do our jobs.

If you still disagree, the comment box is below.

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.

June 27, 2017June 29, 2023

9th Circuit’s Arias v. Raimondo Ruling May Be the Year’s Worst Employment Law Decision

I’ll be vacationing in California with my family the first two weeks of July.

After reading the 9th Circuit Court’s decision in Arias v. Raimondo — holding an employer’s attorney liable for FLSA retaliation against his client’s employee because the employee sued his client for unpaid overtime — I’m thinking of adding the 9th Circuit to my list of tourist stops in San Francisco to see if courthouse resembles a Salvador Dali painting. Because this decision is flat-out bonkers.

The facts are fairly simple. After José Arias sued his employer, Angelo Dairy, for unpaid overtime under the FLSA, he alleges that Angelo’s attorney, Anthony Raimondo, reported him to Immigration and Custom Enforcement as an undocumented worker and put a plan in motion for ICE agents to detain him for deportation as his deposition in the FLSA lawsuit.

Arias claimed that Raimondo, acting as Angelo’s agent, retaliated against him in violation of FLSA for filing his overtime lawsuit. Raimondo did not deny his role in setting up the sting, and claimed instead that he could not be liable under the FLSA for retaliating against someone who was never his employee.

The 9th Circuit sided with the employee.

In our case, the difference in reach between FLSA’s substantive economic provisions and its anti-retaliation provision is unmistakable. The wage and hours provisions focus on de facto employers, but the anti-retaliation provision refers to “any person” who retaliates. In turn, section 203(d) extends this concept to “any person acting directly or indirectly in the interest of an employer in relation to an employee.” Thus, Congress clearly means to extend [the anti-retaliation section]’s reach beyond actual employers. Raimondo’s activity in this case on behalf of his clients illustrates the wisdom of this extension.

The FLSA is “remedial and humanitarian in purpose. We are not here dealing with mere chattels or articles of trade but with the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others. … Such a statute must not be interpreted or applied in a narrow, grudging manner.”

Wow. As one friend put it, “The 9th circuit has officially lost its mind … .” We, as attorneys, should be free to advise our clients without fear of retribution from, or liability to, opposing parties in our client’s litigation. But, they say bad facts make bad law, and the attorney’s conduct in this case would certainly qualify as bad facts.

If you are looking for an employment attorney to help set up an ICE sting at a deposition to detain and deport a plaintiff in the hopes of prematurely ending a lawsuit, then I’m not your guy. In fact, if you asked me about this strategy, I would advise you about the liberal standard for retaliation (adverse action = any act that would reasonably deter one from exercising their statutory rights), and suggest that contacting ICE would likely subject you to a retaliation claim. I would not aid or abet that strategy, but would have to defend it if you overrode my advice and blew the whistle to ICE.

While this attorney may have crossed the line in this case, I am very concerned about a legal standard that appears to open the liability door to attorneys for retaliation against their clients’ 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.

June 20, 2017June 29, 2023

To Encourage Health, You Just Need a Little Nudge

Another day at the Society for Human Resource Management’s 2017 conference in New Orleans. Day 2 brought me a lot of opportunities to speak to HR professionals about everything from the skills gap to benefits strategy to financial wellness. Tropical Storm #Cindy is also coming in, so potentially we’ll all be stuck together for a much, much longer time. We’ll see!

These are some of the ideas I’ve come across day 2:

Financial Wellness Over 20 Years: I spoke with Jeff Tulloch, vice president of MetLife’s PlanSmart program. MetLife has been developing this financial wellness platform over the past 20 years, and just in the past three years, they’ve seen a large spike in interest in this area, Tulloch said. What’s caused this spike, he added, is that employees are stressed and employers have realized that stress is a drain for everyone.

What companies have been doing well with financial wellness is education, he said, but there are two more important areas that we’ll need to see moving forward: motivation and access. By motivation, he meant that HR practitioners could “be more courageous endorsers of what they offer and help their employees take the next steps.”

By access, he meant a wide range of access points for information and advice, not only digital. There’s also human interaction, like an on-site financial adviser or a call center someone can access during open enrollment.

“When we get those three things, education, motivation and access, we see that people are in the position to act,” said Tulloch.

A Little Nudge: Lazlo Bock, former senior vice president of people operations at Google/Alphabet gave a speech that, although not about health/wellness, did offer one tidbit of advice on wellness. He called it “nudging.” The idea behind it is that a small change in the work environment can make a larger impact and that businesses can nudge employees in the right direction. The trick is to not get too into micro-managing. You can’t remove employee choice, but you can lightly nudge them to make a choice that’s better for them.

Bock gave an example of an office based in New York. It offered healthy (nuts, fruit, etc.) and unhealthy snacks (M&M’s), all in opaque containers. The company made a small change in presentation and began putting the unhealthy snacks in yellow containers. The result was that employees consumed a significantly smaller number of calories in the following weeks. They were less likely to dig into the M&M’s in the differentiated, yellow containers than the opaque ones. The choice was still there, but perhaps they began thinking about their choice more when the healthy and unhealthy options looked different.

I don’t know if this same result would happen to any company who uses this exact opaque container/ yellow container model, but the idea behind it is solid.

New Legislation: Lisa Horn, director of congressional affairs and leader of SHRM’s Workplace Flexibility Initiative, spoke about a new work-flex bill being introduced to Congress. They worked with U.S. Rep. Mimi Walters, R-California, to craft it.

The bill is still being changed and tweaked, so I won’t go into specifics. Here’s the gist, though. It’s a workplace flexibility bill that does something about both paid leave and flexibility in the workplace. Currently, there is nothing on a national level addressing these, but many states and cities have their own individual rules, which causes problems for national companies with a presence in multiple cities or states.

In this bill, if an employer voluntarily chooses to adopt these standards, they will be deemed to have satisfied their state and local mandates. The idea behind the bill, Horn added, is that it would be more generous for employees than the state/local mandates.

I’ll be interested to see what happens with this and how far it gets. Also, what those TBD details are like how many days of paid leave an employee would get.

SHRM hopes to officially introduce it after Congress’ July 4 recess.

“HR is Like Golf”: I found this entertaining and something that honestly could apply to any job. This is what one man said when he was asked what he does when things get hard in HR. You can take 99 bad shots and one good shot, he said, and it’s that one good one that keeps you coming back to play golf.

Moving Forward from a Bad Rep: In one session, a woman said the hardest part of HR is overcoming a bad reputation, like with the bad press HR got in the Uber sexual harassment fiasco. She added that as an HR practitioner, every new organization she works at is an opportunity to tell a new HR story and change what HR looks like. Then the employees who work there will have a different impression and HR and carry that with them where they go next. “I can only control what my HR world looks like and what my people experience,” she said, mentioning the importance of starting small, focusing on your own organization and letting other proactive HR people do the same at their own company.

Andie Burjek is a Workforce associate editor. Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.

June 20, 2017June 29, 2023

SHRM17: It’s All About #Cindy, Funerals and Shoes

SHRM attendees are bracing for Tropical Storm Cindy.

Walking through New Orleans’ Ernest N. Morial Convention Center as SHRM’s annual conference stretched into Day Two on Tuesday morning, I spent my time navigating through a sea of HR folks whose heads were down.

Searching for that one piece of swag to fill a third bag slung over their shoulder? Nope. They were anxiously checking the weather, which went from a passing comment on Sunday to full-fledged topic of conversation as Tropical Storm Cindy developed in the Gulf and approached the Crescent City. I mean, when the hotel’s housekeeping staff is telling you about it, time to get concerned.

Depending on the source we’re about to get anywhere from 6 to 12 inches of rain Tuesday and Wednesday — the days most folks are planning to head home.

Guess I better alert my dog-sitter.

…

In Other News: Believe it or not there is news here besides the pending Gulf storm blowin’ into town tonight (hat tip, Mary Chapin-Carpenter).

News of CareerBuilder’s acquisition came down Monday during the first full day of the conference. Parent company Tegna sold the venerable job board to private equity firm Apollo Global Management and the Ontario Teachers’ Pension Plan Board for a reported $250 million.

“We are excited about the new ownership structure,” said CareerBuilder CEO Matt Ferguson in a statement issued to the media. “Apollo and Ontario Teachers are powerhouses that invest in many of the largest B2B and consumer brands in the world. They can help us take our business to the next level. CareerBuilder has transformed into an end-to-end human capital solutions company. We have built a fully integrated platform for finding, hiring and managing employees. With Apollo and Ontario Teachers’, there is a great opportunity to accelerate our growth and innovation.”

The news didn’t generate a buzz around the conference but that evening there was some chatter about it during the Nexxt happy hour session. The talk wasn’t so much about who was acquiring it but in which direction CareerBuilder will go.

“We all know what happens when private equity buys you,” said one person at the event.

Beyond Beyond.com: I spent a good half hour searching for Beyond.com Inc.’s booth Monday afternoon after hearing about some news they were releasing. Because I hate to ask for directions I thought I’d hunt around. No luck. I finally consulted a booth guide and headed for space 738. Not there, I must have misread the guide. Find another guidebook. Yep, 738. I circled again; still not there. Now I’m getting frustrated. I’m checking out the booth at 738 and notice a portion of the Beyond logo in one corner. The news? Besides me spending 30 minutes looking for a booth, Beyond.com rebranded to Nexxt.

…

I Love a Parade: Speaking of Nexxt, congrats are in order to CEO Rich Milgram and his people for the clever rebrand from Beyond.com to Nexxt. Being in New Orleans, the recruitment media company on Sunday brought a dirge complete with a brass band playing somber songs into the convention center for Beyond.com’s funeral.

Which, naturally, I missed since I was covering the SHRM press conference. But the festivities — if you can call a dirge festive — are available on Nexxt’s Facebook page.

…

Get Your Kicks: Swag remains a huge draw at SHRM. From Apple TV giveaways to squeezy balls to photos with world-famous zookeepers, it’s all about the tchotchkes.

Give CareerBuilder the swag-of-the-conference honors. Those lucky enough to spin the giant wheel at CareerBuilder’s booth and land on big winner got a pair of customized Bucket Feet shoes.

In years past the company’s booth workers wore colorful Converse Chuck Taylors. This year they apparently decided to … wait for it … put the shoe on the other foot.

Rick Bell is Workforce’s editorial director. Comment below or email editors@workforce.com.

June 12, 2017August 31, 2023

Beauty and the Gig Economy

When actress Cara Santana first heard about Uber’s gig economy model, she thought it absurd. She wanted to rebuke the idea. But now it’s a noun, verb and an adjective. In 2014 she took the same business model and started The Glam App, which brings local makeup, hair and nail artists to women looking to beautify their lives from home. Santana, also known for TV roles in “Salem,” “Santa Clarita Diet” and movies “Reunion,” “Beverly Hills Chihuahua 3: Viva La Fiesta!” and the upcoming drama “Steps,” points out Uber has changed the way people see the free-market economy and bolstered independent contractors. CEO Santana only has eight full-time employees with offices in London and Los Angeles, yet Glam has over 30,000 active users in 22 markets in the U.S. and U.K., and over 2,000 stylists.

The company recently partnered with L’Oreal for an exclusive artistry program called the Glam Academy, curated in collaboration with Beyoncé’s go-to artist Sir John who is curating four new looks for The Glam App this year using L’Oréal Paris products. Workforce intern Ariel Parrella-Aureli recently chatted with Santana about being an entrepreneur, hiring employees and creating a strong company culture.

Workforce: Why did you pick the gig economy structure for the app?

Cara Santana: The social culture of the modern-day working woman, the millennial, is instant gratification, convenience, accessibility. They really believe the shape of the culture was going to a place where, either because of time constraints or because of this need and ability to get most things instantaneously, that the beauty industry would fit in. With 65 percent of women working more now than in 2008, you have obviously a culture of millennials who have grown up where they are able to get things when they want, whether it is Postmates or Tinder or whatever. We have to be able to fill a real need, which is beauty — it’s not going anywhere. It felt like a natural progression to apply this model to the business of beauty.

WF: How has your acting career helped your app company?

Santana: How it really helped me is being an “entrepreneur” which is the term I think that gets thrown around a lot, and being an actress, there are a lot of similarities. There is no linear path, there is no handbook on how to get to success; you don’t do A and get to B. there is a lot of rejection, creating your own brand and identity as an actress and same with a business. The turmoil and the struggle of “making it” in the acting world is very similar to “making it” in the small business entrepreneurial world. And thinking outside of the box, having a tough shell, being open to rejection and hearing “no”—there are a lot of similarities in it, so that prepared me for resilience and to march to the beat of my own drum and have faith in myself.

WF: How do you balance being a CEO and a celebrity?

Santana: My mom has always taught me, you can’t do everything on your own. She has always been a working mother, ever since I can remember. When I started to build The Glam App, I knew inherently that I wasn’t going to be able to build it on my own and make it successful. I surrounded myself with people whose strengths were my weaknesses, whether it’s partnering with Joey, who had a very strong creative vision, which is not really my forte, or hiring a COO who was very strong in operations and hiring an assistant who could help balance my schedule. That is a large team, and such cohesion helped simplify and streamline everything I’m doing and it allows me to really create that balance.

WF: How do you build your workforce in this industry?

Santana: The challenge to any business is the hiring. When I talk to other CEOs and owners of businesses, it is always the staff. You really want to create a company that has good culture. You want to have like-minded people working for you. It is such an interesting time — millennials are now the workforce. I am looking for innovative, ambitious and creative talent who have the best qualities millennials have to offer but with a really strong work ethic, because a startup is just categorically different than any other type of environment. It is long hours — I work 80 hours a week, everyone on my staff pretty much works 50 minimum and we are a small team, so you want to find people who are invested in the cause who really want to see The Glam App meet its potential.

WF: What are the positives and negatives to this business model and specifically to the beauty industry?

Santana: The biggest challenge is converting behavior. When something is new and not the norm, there is a natural sense of reservation to it and so big cities like Los Angeles or New York, where people have been getting their hair and makeup done at home, it’s a luxury. But in Phoenix or Dallas, that is really changing the normal behavior [of the makeup industry]. We are allowing all women — no matter their socioeconomic status, age, where they live — you are allowing them the opportunity to have affordable and accessible beauty experiences in some capacity. You are also enabling this group of artists; the hair, makeup and nail professionals, who otherwise would have a very limited ability to work, whether it be in a salon or building their own freelance business, which is incredibly hard. We are allowing these stylists to build their brand, build their clientele, supplement their income while allowing young consumers and stay-at-home moms and working women to find the time to feel good about themselves without having to compromise on their life.

WF: How does this affect local beauty salons or makeup stores?

Santana: I like to always say we want to be their partners. We are not trying to cut and color — do all of the salon-type services. What we are trying to do is simply the styling aspects. Salons cannot always fill all of their needs. Maybe there are not enough stylists; maybe someone wants an in-house call. We want to work hand-in-hand and enable the growth and progression of stylists and beauty providers in every capacity, so we hope it positively affects the salon space.

WF: What is the partnership with L’Oreal going to do for the company’s growth?

Santana: Partnering with such a recognizable beauty brand helps our artists see what we are doing that people are taking notice. This isn’t just a fly-by-night idea, but there is real legitimacy to the business, and brands like L’Oreal and Dolce & Gabbana, the W Hotel, Glamour Magazine — all these people we are working with are realizing the value of the market. This really is the future.

WF: How do you create a common work culture and value system with employees on the internet and working remotely?

Santana: It is a work in progress. You want to instill a sense of incentive and desire to work toward a common goal. We do a lot of incentivized tasks, whether it is winning trips to other offices, incentivizing our stylists to bring in clientele by providing them with a program that gives them rewards back. We certainly try to create a fun and positive working environment and create a company culture of like-minded individuals who want to work hard, who are bringing creativity to a “sterile business model.” It is about finding those young millennials who are interested in making a change and making a social impact while maintaining the Generation X sentiment of work hard and play hard. Today’s generation is really driven by the ideology of making an impact. Do I feel valuable? Am I doing something substantial? Am I being recognized? It’s a balance but having incentives and creativity to really garner the interest of your employees and independent contractors is key. As long as you are playing to that base instinct and base feeling of those needs, you get a successful employee.

WF: What have you learned about being a CEO in the workforce?

Santana: I look back at who I was or what version of myself I was two years ago and the version of myself I am today — it’s leaps and bounds different. The hardest part is picking and choosing your battles and creating an environment where people want to come to work. I didn’t go to business school so a lot of what I am learning I am learning on the go. The hardest part for me has really been balancing the work and the small successes and really taking a moment to identity what has been a win versus moving on and bulldozing to the next thing, and balancing my personal life and not losing my own identity.

Ariel Parrella-Aureli is a Workforce intern. Comment below or email editors@workforce.com.

June 6, 2017June 29, 2023

Fight Unemployment Claims at Your Own Peril

My friend and fellow blogger (with whom I tend to agree most of the time), Suzanne Lucas (aka Evil HR Lady), recently posted an article about which I could not agree more, Why You Should Rarely Fight an Unemployment Claim.

Her argument (which she agrees runs counter to most employers’ conventional wisdom that says, “I must fight each unemployment claim an employee files because successful unemployment claims cost money, and I do not like spending money”):

When you fire an employee, for whatever reason, they are likely to be angry. Most likely they think you were unfair. While you followed procedures and made decisions by the book, all it takes is this employee convincing an attorney that he was treated differently than other employees who were a different race, gender, religion, or other protected class, and you’re on the hook for thousands of dollars—not because you’re guilty of illegal discrimination. But, even responding to the attorney will cost you money, and it could cost you your reputation if the employee can garner public support. Cutting someone off from employment and unemployment makes people angry—and angry people will be far more likely to retaliate in court.

Let me give you a real-life example to support Suzanne’s astute argument that employers who fight unemployment claims create unhappy and angry ex-employees, which helps breed the right environment for lawsuits.

At the conclusion of a day-long plaintiff’s deposition in an FMLA and disability discrimination lawsuit, it was clear to me that my client had not only not violated any laws, but bent over backwards to do everything possible to accommodate the plaintiff. The company had treated this employee so well, I asked a question that I had never asked in another deposition — why are you suing?

It seems to me that they treated you fairly. They gave you an initial medical leave of more than 12 weeks, they provided you every accommodation you requested for your medical conditions, they provided you a second medical leave of more than 12 weeks, and you received several raises during your employment. Why are you suing this company?

The answer she gave floored me — not because it was damaging to my case, but because something that seemed so trifling caused the lawsuit. Her answer: “They fought my unemployment.”

Employees sue when they feel disrespected or when they perceive unfair treatment. It is not simply enough for an employer to treat employees well during their tenure. Employers should also strive to treat employees well in conjunction with their terminations and even thereafter. Sure, there are exceptions. I would never suggest that a serial harasser deserves a pass, or that the employee who stole from you should receive unemployment. If you don’t want to be sued, though, don’t make a terminated employee feel like a common criminal by having security escort them to the door (unless you legitimately and reasonably perceive a safety risk). It’s okay not to give a glowing recommendation to a marginal ex-employee, but resist the urge to trash him or her to a prospective employer. And, don’t fight unemployment except in the most clear-cut cases of cause. These little things could go a long way to an ex-employee reaching the decision to let bygones be bygones and not to sue you.

So think before filing that challenge to your ex-employee’s unemployment claim. It may be the smartest decision you can make.

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.

June 5, 2017June 29, 2023

A Contrary (and Common Sense) Appellate View on Rude Employees and the NLRA

It’s been six weeks since I reported on NLRB v. Pier Sixty, in which the 2nd Circuit Court of Appeals held that the National Labor Relations Act protected the profanity-laced Facebook rant of a disgruntled employee.

I have hoped that Pier Sixty is an aberration. Thankfully, last week the 1st Circuit came along with a well reasoned contrarian view in a case in which the alleged employee misconduct was much less severe.

In Good Samaritan Med. Ctr. v. NLRB [pdf], the employer fired Camille Legley, a new probationary employee, who, in an employee orientation meeting, become increasingly contentious over the issue of whether he needed to join the union in order to work at the facility. Various employer witnesses described Legley’s conduct during the meeting-in-question as “irritated,” “talking loudly,” “consuming the room,” “rude,” and “overbearing.” Good Samaritan fired Legley the following day for violating its civility policy.

No one in the case disputed that Legley was engaging in protected activity under the NLRA in asserting a right not to join the union. The issue was whether his (mis)conduct crossed the line, and whether some reason other than his union opposition motivated Good Samaritan’s decision to fire him. On this issue, the 1st Circuit sided with the employer:

[W]e do not believe that the NLRB has established substantial evidence on the record as a whole that Good Samaritan would not have made its decision to discharge Legley despite the protected activity. Here, the NLRB simply stated that Good Samaritan failed to prove that it would have discharged Legley in the absence of his protected activity. At most this can be read to assert that Good Samaritan’s proffered reasons for discharging Legley were insufficient. … In the absence of an adverse credibility finding or a finding of pretext, the fair inference to be drawn from these statements is that Good Samaritan discharged Legley because of how it reasonably perceived his behavior not because of his protected conduct.

In other words, if an employer has a good faith belief that an employee’s conduct violates a policy, absent a finding that someone material to that decision is lying, or absent a finding of pretext, the NLRB cannot overturn the employer’s good faith decision.

Is it me, or did the 1st Circuit just incorporate the honest belief rule into NLRA jurisprudence? And, if that is, in fact, what just happened (and it sure looks that way), then bravo 1st Circuit. I stand up and applaud you. Because if a client called me with the facts of Good Samaritan, or, worse yet, Pier Sixty, and asked, “Can I fire this employee,” this is what I’d say:

I’m glad you called, because you are right to have concerns. Yes, this employee did mention a labor union, and he generally made his rude/insubordinate/offensive comments in the context of those union-related comments. The National Labor Relations Act has a concept called “protected concerted activity,” which grants all employees (whether in a labor union or not) the right, between and among themselves, to discuss wages, hours, and other terms and conditions of employment. That right certain protects comments relating to union elections and whether a new employee must join a union upon hiring. It does not, however, mean that employees check their dignity at the door. You should still have the right to fire or otherwise discipline a rude/insubordinate/offensive employee, even if the rude/insubordinate/offensive comments were made in context of otherwise protected concerted activity, as it appears is the case here.

Now, understand that the NLRB, as currently composed, takes a different view, as have some courts that have also examined this issue. But, also understand that the NLRB’s composition will change under President Trump, and it’s safe to assume that Trump’s NLRB will be less sympathetic to the argument that the NLRA protects employee comments and conduct such as those which you described to me. Would a decision to fire or otherwise discipline this employee be risk-proof or litigation-proof? Absolutely not; no decision ever is. But, you need to ask yourself, “Is this the type of employee I want working for me? Does this employee embody the values and exhibit the type of behavior that I want my employees to model?” If the answer is “no” (and I suspect it is, or you wouldn’t be calling me), and I was in your shoes, I know what decision I would make, as long as I understand that risks that may follow.

And I sure wouldn’t want the NLRB or a court second-guessing my client’s good faith business judgment in reaching its final decision.

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.

June 1, 2017June 29, 2023

OMG! Ur Hired!

Millennials and their Gen Z successors have little time for thoughtfully crafted emails or telephone pleasantries.

These digital natives grew up texting and often consider other formats to be cumbersome and outdated. So it should come as no surprise that they think text messages are a completely appropriate way to communicate with recruiters and their future workplace peers.

A recent survey from Yello, the talent acquisition software company, shows 86 percent of millennials “feel positively about text messages being used during the interview period,” and a similar HeyWire Inc. survey shows 67 percent of employees are using text messaging for business-related communications.

While it may seem like an overly casual environment to connect with potential hires, texts offer a lot of benefits — especially in a recruiting setting, said Jason Weingarten, co-founder of the Chicago-based Yello. “Text is faster, it’s easier and it’s more personal,” he said. It can also solve many of problems that create a negative candidate experience, including delays in communication, lack of follow-up and overly generic form letters.

“There are many points in the recruiting process that are very stressful for candidates,” he said. “Getting a quick response or update can ease some of that anxiety.”

It can also be handy for recruits who have another job and don’t want to communicate via their company email or phone, said JoAnne Kruse, chief human resources officer at American Express Global Business Travel. “They are lot more responsive via text, and it’s an easy way to move the process forward.”

A Strange Bunch

Besides convenience, texting is a great way to get a sense of a candidate’s personality, said Jack Barmby, CEO of Gnatta, a customer service software company based in the U.K. His developers and support staff use text messaging to talk to each other and to potential new hires. “It is the underpinning of how we communicate,” he said.

The company uses Slack, a cloud-based team collaboration tool for its text platform, creating different conversations for different projects, teams and topics. Participants post project updates, questions and comments that others in the group can see and respond to.

“It’s more efficient than email because users can quickly scroll through posts, find those that are relevant, without getting bogged down in a bunch of ‘reply-all’ email chains,” he said. There are no formal rules for use, beyond the basics — don’t be a jerk, and don’t post comments that are not relevant to the topic. “Otherwise it’s very organic, and we encourage people to let their personalities flourish.”

Gnatta also uses it as a vetting tool for new hires. When a candidate makes the hiring short list, they are invited to join one of the casual Slack channels, where Gnatta employees talk about what’s going on in their lives. The recruits get a chance to see how the team communicates, and the team gets a sense of their personality, Barmby said. “The ‘shine’ of the interview comes off, and they have a chance to be themselves.”

Inviting candidates to engage via text helps his team determine who will be the best cultural fit for the organization, and it ultimately becomes an extension of the onboarding process. He admitted that some candidates are turned off by the process because it adds a week to the decision, but others love the opportunities to connect with potential peers. “Developers can be a strange bunch, and not everyone is a good fit,” he said. Spending a week chatting with the team is a great way to decide who will fit in.

For all its conveniences there also are risks to using texts in recruiting. Companies need to be thoughtful about the information they share via text and how those communications can be tracked, Weingarten said. “If you get audited, you need to be able to show the source of the texts, how they were sent, and what messaging you used.”

Recruiters shouldn’t put too many rules around how texting is used. Where recruiters are looking for better, faster and more personal ways to engage with talent, texting is a cheap and familiar solution that can add real value to the process.

“Text is the next iteration of how we communicate,” Kruse said. “It can be a hugely helpful way to quickly connect with people, is a style that they prefer, so why wouldn’t you take advantage of that?”

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