Yesterday, I noted that the EEOC is examining the impact of big data on how employers reach employment decisions.
Looking at an issue and doing something about it, however, are two entirely different animals. I wonder what business the EEOC has looking at this issue at all. The EEOC’s mission is to eliminate discrimination from the workplace. Certainly, there is no claim that neutral data points intentionally or invidiously discriminate based on protected classes.
In that case, the only purpose the EEOC could hope to serve by looking at the impact of big data on employment practices is to determine whether its use disparately impacts a protected group.
“What is disparate impact,” you ask? A disparate impact claim involves an employment practice that is neutral on its face, but, as applied and to a statistical significance, it falls more harshly on one group over another. It has significant implications in race and sex discriminate claims. One federal appellate court recently and notably, however, called into question its application in age claims.
Unless big data has a disparate impact, the EEOC has no business examining this issue. So, what says the data? For purposes of this post, consider the use of social media as a recruiting tool. If an employer is relying primarily on LinkedIn to source and recruit candidates, does its use disparately impact one race or sex over another?
According to the most recently available data (c/o the Pew Research Center), the answer is no.
If men vs. women, or whites vs. blacks, or whites vs. Hispanics, are using LinkedIn in similar percentages, then, based on the data, it will be difficult to make a disparate impact claim on this big-data issue. Granted, the EEOC examined issues much more broadly than just social recruiting, but at least on this issue, and at least according to the available actual data, it looks like employer should be free to use LinkedIn to source candidates without fear of a discrimination claim.
Kudos to the EEOC for thinking outside of the box in trying to discover new paths of discrimination to address. I wonder, however, if when the EEOC gets around to opening that box, instead of finding Pandora’s evils, it will find a whole bunch of nothing.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
While the Access Hollywood tape has been making news for the last week or so, mainly for what Donald Trump said, there is something else that has stood out: Billy Bush’s ‘role’ in the whole affair. Bush’s attorney reportedly said, “If Billy had been passive or responded, ‘Shut the f— up’ to Trump, Billy would have been out of a job the next day.” This certainly does raise some questions about behavior in the workplace. Is laughing considered a form of agreement with something a supervisor, co-worker or client says? Of course Bush went a step further, he didn’t just laugh along, he also made some comments I think we can all agree are inappropriate (especially at his place of work).
I want to come at this from a different angle than The Huffington Post, which attacked Bush for playing the roll of Trump’s wingman. What do you do, as an employer, when you learn of harassment about which no one has complained?
The short answer is you better do something, and you cannot do nothing. An employee alleging sexual harassment by a coworker must still establish that the employer is liable because it knew or should have known of the harassment, yet failed to take prompt and appropriate corrective action. When does an employer “know or should know” of harassment? Either when: (1) an employee complains or otherwise makes the employer aware; (2) a supervisor or manager witnesses the inappropriate conduct and either reports it or remains silent; or (3) when a workplace is so permeated with harassment that is unreasonable for an employer to claim ignorance.
What steps must an employer take when it learns of harassment, whether or not an employee has complained? These five steps (which I’ve outlined before) are critical:
Be prompt. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct and stop from happening again.
Be thorough. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. The more egregious allegations, however, the more comprehensive of an investigation is called for.
Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
Communicate. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
Follow through. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear, for example. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through.
What you cannot do, however, is bury your corporate head in the sand. Under no circumstances can you, as an employer, ignore harassment that you know about or should know about. It is not a defense for you to bury your organizational head in the sand and hope that it will all be gone when you emerge into the sunlight. If opt for the “ostrich,” all you will see after shaking the sand off your face is an expensive (and possibly indefensible) harassment lawsuit.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Adoption assistance is Hilton Corp.’s latest employee benefit offering.
International hotel chain Hilton Corp. is aiming to provide a hospitable environment for its employees as well as its guests. One way of accomplishing this is through a wide range of benefits, the most recent of which is an adoption assistance program.
“We frequently ask team members for their feedback and suggestions,” said Laura Fuentes, senior vice president of talent, rewards and people analytics at Hilton, in an email interview. “Last year, we identified that parental leave was one area where we could add to our industry-leading programs and provide even more support and flexibility to team members and their families.”
They pinpointed adoption as one of the many ways an employee might choose to start a family.
Hilton’s adoption assistance benefit, which begins Jan. 1, includes reimbursement on expenses up to $10,000 and two weeks of paid parental leave. There isn’t a limit on the number of adoptions this applies to, and it covers hourly and salaried U.S. team members who have been at Hilton for at least a year, averaging at least 30 hours a week.
Although not common, the offering of this type of benefit is on the rise.
Employers that offer paid leave for adoption has increased from 17 percent to 20 percent from 2015 to 2016, according to the Society for Human Resource Management 2016 Employee Benefits Survey. Nine percent of employers provide additional assistance for adoption, for example, through a stipend.
Stipends or reimbursements for adoption range from $5,000 to $25,000, according to Jackie Reinberg, national practice leader of absence, disability management and life at consultancy Willis Towers Watson. The average is about $10,000, which is what Hilton is offering, Reinberg said.
Adoption assistance benefits fit into Hilton’s overall strategy to make it a great place to work for employees and to foster both professional and personal growth, said Fuentes. It offers other family-friendly benefits like paid time off, a GED assistance program and remote workforce opportunities.
Family-friendly benefits also help Hilton attract and retain the best talent, she added, which is good for employees and good for business as well.
“Parental leave and adoption assistance are important to our team members, therefore they are important to us,” said Fuentes. “We are proud to offer the best and most comprehensive family benefits in the industry and are continually looking for ways to support our team members’ personal and professional growth.”
Andie Burjek is a Workforce associate editor. Comment below, or email at aburjek@humancapitalmedia.com. Follow Workforce on Twitter at@workforcenews.
Employment Law 360 reports that Hawaiian Airlines has been sued by a group of employees claiming that their mandatory unpaid 10-day customer service training course violated the Fair Labor Standards Act.
According to court papers, trainees learned things like federal regulatory requirements and how to use a standard airline software system. … The suit claimed the Fair Labor Standards Act and state law required trainees be paid at least minimum wage “because, among other things, attendance was mandatory, the course material was related to the trainee’s job, and attendance was during regular working hours.”
For its part, the airline argues that the lead plaintiff “was well aware the course was unpaid before she started.” That’s not much of an argument. Under no circumstance may an employee voluntarily agree to forfeit pay to which the employee is entitled under the FLSA. It’s no different than asking an employee to volunteer his or her time and work for free (which, by the way, is very illegal).
Lots of opportunities exist for employees to train, take educational classes, or otherwise better themselves — inside classes, outside classes, seminars, lectures, and continuing education requirements, to name a few. Whether attendance at these activities counts as paid “working time” under the FLSA, however, depends on four factors:
Is attendance outside of the employee’s regular working hours?
Is attendance truly voluntary?
Is the course, lecture, or meeting indirectly related or unrelated to the employee’s job?
Does the employee not perform any productive work during such attendance?
An employer must be able to answer “yes” to all four of these questions to consider an employee’s attendance non-working time.
For non-exempt employees, this determination is important for two reasons. First, working time must be paid at the employee’s regular rate. Secondly, it counts towards the number of hours worked in a work week for determining overtime eligibility.
This issue is even more important in today’s tight economy. Failing to consider these factors before requiring or suggesting training or education for employees could result in the added expense of non-budgeted wages and overtime, as Hawaiian Airlines may soon discover.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
The Fair Labor Standards Act does not require paid lunches for employees. Indeed, quite to the contrary, the FLSA provides that meal breaks (presumptively defined as breaks of more than 20 minutes during which the employee is totally relieved of his or her work duties) can be unpaid.
What happens, however, to an employee’s overtime compensation if the employer pays an employee for non-working lunches? Is the employer entitled to use the extra compensation for the paid lunches to offset other overtime compensation?
Nothing in the FLSA authorizes the type of offsetting DuPont advances here, where an employer seeks to credit compensation that it included in calculating an employee’s regular rate of pay against its overtime liability.
Instead, as the court points out, the FLSA only permits employers to take an offset against overtime payments in three limited circumstances, each of which involves some component of premium pay in excess of an employee’s regular hourly rate:
Extra compensation provided by a premium rate paid for certain hours worked by the employee in any day or workweek because for hours worked in excess of eight in a day or in excess of the employer’s defined maximum workweek.
Extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and one-half times the rate established in good faith for like work performed in non-overtime hours on other days.
Extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable employment contract or collective-bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic, normal, or regular workday (not exceeding eight hours) or workweek (not exceeding the employer’s defined maximum workweek), where such premium rate is not less than one and one-half times the rate established in good faith by the contract or agreement for like work performed during such workday or workweek.
Come Dec. 1, the DOL is adding more than four million employees to the doles of overtime eligibility. Employer are doing to look for ways to limit their overtime exposure to keep payrolls under control. Be aware, however, that taking a credit against overtime for paid lunches is one option not available to you.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Bashing white people does nothing to solve the greater issues around workplace diversity and inclusion.
A white man emailed me recently, a software developer I’ll call Portland, since that’s where he comes from. He gave me permission to post and discuss his email — thank you, sir — but he asked to remain anonymous, which I respect. This is sensitive stuff, and while many of us are open to learning, we don’t need drama.
His words are in italics. My responses are in plain text:
I’m a software developer working for the City of Portland, Oregon; and I recently attended a meeting in my organization entitled “Celebration of Hispanic Heritage.” It was the first time I decided to go to — perhaps — “passively” participate in what the city calls an “Equity in Motion” event in a series of events/meetings meant to empower and help dignify “disenfranchised” members of the community — but really — to educate our own people.
This could be me — a professional wordsmith — reading too much into this, but if those quotes around passive and disenfranchised are your additions, Portland, I’m sensing some skepticism or at least disagreement with the foundation of the gathering. That’s OK. Skepticism can be healthy.
It was not at all what I was expecting. It had nothing to do with Hispanic Heritage nor was it a celebration. At the beginning of the meeting, our lovely host played a video depicting both Whites and Blacks as goofy imbeciles saying all sorts of careless, politically incorrect things in various conversations and settings with a “White Hispanic” woman who’s barely offended and just looks at her offender with a smile. This video was not only offensive to Blacks and Whites; but it was even more offensive to Hispanics because before the video was started, the audience was told the video is just meant in humor [to break the ice]. I thought it was in poor taste because it makes light of the very identity and dignity of Hispanics and sets a tone that equality and equity need not be taken seriously.
I agree with you wholeheartedly, Portland. It’s important not to buy into and feed stereotypes — especially negative ones — even among members of the same group. Always, always, always portray strong, realistic, positive, diverse images so we can change the narrative, and constructively challenge the bias and ideas that pigeonhole minorities. Only then can we broaden the collective mindset with diverse thoughts, ideas and accurate, three-dimensional human portrayals. We don’t need to coon and perform to break the ice. A hello might work just as well.
You have to understand I work in a relatively professional environment where everyone is generally courteous to each other. That is, the City of Portland really doesn’t have a problem with employees with different backgrounds getting along. The real problem is people over socialize, but that’s another story. No less, it’s not like we’re running a failing trucking business with a bunch of disgruntled workers saying hateful things about each other and their boss behind their backs. Although the racial diversity of Portland is relatively low compared to other metropolitan areas, and the diverse makeup of our organization in fact relatively proportional to the population and more diverse than the population; the Office of Equity still makes a good effort to get the word out in an effort to hire more minorities.
Then the complete opposite occurred. The rest of the meeting took a 180 and consisted of the few Hispanic employees we have sharing where they’re from, how they got here, and then depressing instances of hate and/or discrimination they’ve suffered [from White people]. I put “White people” in brackets because the offenders were not always racially identified but implied to be White. This is the part that got me angry, because I felt like it was an attack on White people — to shame us — and, alas, on myself (as a White person).
Portland, I’m not being flip here, but this was a meeting for Hispanic people. Is it appropriate for you, a visitor, to deny them an opportunity to get some issues off their chest? The Hispanic people who were airing their concerns were upset too, and they are entitled to talk about why — just as you are — since they feel they’ve been mistreated. This was an appropriate venue for them to share their stories.
Therefore, listen; and listen to learn without taking things personally. Unless someone was talking to you, this isn’t about you. That’s easier said than done, I know. But part of creating inclusive cultures where diversity is truly a business advantage requires that we become comfortable with discomfort.
Discomfort is natural in any environment where there is difference, so we who appreciate diversity must therefore become agile, even diplomatic in how we deal with those differences. It would be wonderful if every meeting was candlelight and roses, but that doesn’t happen in most meetings, let alone one for an employee resource group. We can’t reasonably expect that minorities won’t have grievances, and then if they do, not to air them in an appropriate venue because there’s a white person present who might be offended.
But if there was no follow up, no discussion of action items, no learning, no takeaways or anything after the grievance airing, I query the group leader’s effectiveness. Or, I query the purpose for the meeting.
I think the audience had been duped with a bait and switch, if you will. People coming to the event were expecting some celebratory content such as, say, the historic triumphs of Mexican-Americans with the help of Cesar Chavez and perhaps a proud cultural exhibit.
I think you were expecting celebratory content. But I wonder if the other participants were. I know what the title was, what theme was advertised, but somehow I doubt most of the attendees were actually expecting a cultural exhibit. Employee resource groups have traditionally been opportunities to promote community and support for specific groups within the workplace. The best ones also have keen business connections, and they contribute with new products, services, process improvements, etc.
However, Portland, I can totally understand your shock when the content veered so sharply off course. It was quite natural to think there was something underhanded going on. To bill something as a historical celebration, for instance, and then not talk about historical celebrations at all is essentially a lie. At best, the meeting’s origins and purpose were not well conceived or thoughtfully constructed.
But it turned out to be a session of indirect bashing. I was very emotional by the end and when the host asked for feedback, a co-worker spoke for me saying the same. The host’s response was very callous: “Maybe you shouldn’t take it so personally,” she said, as she was turning away and continued on with the conclusion of the meeting. It seemed as if for an instant she was making a subtle statement, “That’s what you get for hurting us.” The host is a much older, nearly elderly African woman (actually from some country in Africa).
Her response does seem short. It wouldn’t have hurt her to address your concerns, at least suggest that you guys talk afterwards. But the personal comment, I’m afraid I agree with that. The meeting wasn’t for you. It also wasn’t about you. Therefore, it shouldn’t have been offensive to you. Easier said than done, I know, but this was no deliberate “attack on Portland day.” Consider the source, the venue, the unwritten purpose of the meeting. It could be it should have been renamed, “Get crappy treatment off your chest at 4 p.m.” But if it were, I doubt there would have been meeting space available.
As soon as I got home I started researching this phenomenon of diversity training in the workplace and what I’m discovering is a convenient indirect tactic of beating up on White people which is growing in popularity. As someone who came to that event willing to champion the cause of diversity, I felt betrayed and that an injustice had been done. On the other hand, if the host had prepared us by letting us know beforehand the intent is not to shame; then I would have been much more understanding and accepting of the content. But it seems the audience was tricked.
This wasn’t diversity training. It was an employee resource group meeting. And you can look up and find support for almost anything on the internet. Further, if you’re a true champion for diversity, one bad meeting won’t throw you completely off course. If anything, it will fire your passions even more because you’ll see the work that needs to be done, and you’ll gird your loins to do it because it’s not easy. It’s a battle, uphill, and for every success there are a dozen failures.
Your feeling of injustice is just that — your feeling. It’s not this group’s responsibility to pat you on the back and congratulate you for wanting to be open-minded. Also, you say the audience was tricked? But you only mention one other person who was upset. I don’t know if it’s appropriate for you to speak collectively for this group or audience.
However, I agree with you that a bit of context could have alleviated some ill feelings. A preface like, “I see we have some new visitors today. Please don’t be alarmed if we get a little personal. This is a safe space for us to share our workplace concerns,” would have been appropriate.
How do you feel about this tactic of White-bashing to audiences who are caught “off-guard?”
I think white-bashing stinks, Portland. It’s callous, silly and purposeless. It does nothing to solve the greater issues around workplace diversity and inclusion. On an individual level it barely gives you even momentary satisfaction. Organizationally, it may actually contribute to the very problems that lead to white bashing to begin with.
As for you being caught off guard. This was your first employee resource group meeting. Maybe you should attend a few more. Make some notes. Absorb what’s being said critically, and consider the speakers’ positions, concerns and how you might feel or behave in their shoes. Ruminate, and let your emotions cool. Then come forward and objectively state your opinions and offer suggestions on how the leader could make the meetings more productive, and more importantly, more inclusive.
Portland did talk to the employee resource group leader and share his suggestions to allow all groups involved to be able to comment and to keep the material at least as positive as it is negative. This is a follow up email he sent to me:
My final suggestion (kindly expressed) was to seek out an education in intergroup dynamics (social psychology) and intergroup conflict reduction. I don’t think my message got through, though. She insisted that an event for a certain group is their “space” and that it would be wrong to have White people controlling/changing up the material.
My first thought when I saw the phrase “kindly expressed” was, unasked-for assistance, no matter how well intended, is in fact interfering patronage. Portland, you may think the leader needs conflict reduction skills training, but that’s a sweeping judgment based on your attendance at one meeting. Further, you didn’t actually detail any conflict within the group. The conflict was with you and your reaction to the group’s activities.
The group does seem to have some issues: It was wrongfully billed/labeled, there were offensive images and activities, and on the whole it was not inclusive of other cultures or of diversity of thought.
Employee resource groups should be about teachable moments. Here, there were missed learning opportunities on both sides. But the dialogue has started, which is great. Now it’s time to do the work to find some consensus.
I get her point, but I don’t think she quite gets mine — that White people are being inadvertently demonized. I think she wants the White audience to go away feeling badly perhaps as a strategy. But most of us have been victimized by persons of another race or gender or sexual orientation. Seems like Whites are being singled out anymore based on the historical misgivings of the rich and powerful (who happened to be White). I can deal with the history lesson, but I’m not convinced of the suggestion of the case in today’s environment that Whites consciously oppress non-Whites (which is what these events are really suggesting). Really? Is it 1971 still?
Portland, I think your intentions are good. But you seem to have some pretty healthy skepticism about the purpose for the employee resource group or maybe about diversity and inclusion work in general? You say you’re not convinced that Whites consciously oppress non-Whites “which is what these events are really suggesting.” So, does that mean the opinions or experiences you heard from the Hispanic employee resource group members are untrue or exaggerated?
For many minorities it is very much still 1971. Our feelings about the reality of our lives and experiences are routinely denied. Many experts — of which I am not one — say that’s why racism, sexism, gender bias and all the rest of the -isms have not been successfully routed from life and from the workplace, because so many — particularly those who have power to change things — deny they actually exist.
Remember, just because these things are not a part of your daily reality — or your family, friends and even your community’s reality — doesn’t mean they aren’t incredibly real for others.
Discrimination is not happening like it used to. I would, for example, love to work with a team of Black co-workers but there aren’t hardly any Black computer programmers because they’re not going to college for that. What’s really going on here? Are we addressing the real, root problems? Or just scratching at the surface?
No, discrimination is not happening like it used to. Some things are not as prevalent, but it’s also happening in new ways now. It is still very much alive. We’re fighting many of the same battles we’ve been fighting for the past 40-plus years.
So, please, Portland, be careful with blanket statements. You don’t actually know what Black people are going to school for, do you? I have covered quite extensively the issues that women and minorities face not just pursuing and then advancing in tech careers, but even thriving in the academic environments they need to learn necessary job skills.
I’m grateful Portland was brave enough to write and that he gave me permission to share his words. He was open about his experience and his feelings around diversity, and that is important and rare — not just for a white man but for most of us. I hope I was reasonable and objective in how I addressed different points in his letter.
Some learning needs to take place. Not just for him, but for the employee resource group leader too. But he’s right to question: What’s really going on here? Are we just scratching at the surface when it comes to workplace diversity?
Kellye Whitney is Workforce’s associate editorial director. Comment below, or email editors@workforce.com.
Employers must follow Form I-9 rules for all employees regardless of national origin, citizenship status or immigration status.
Whether immigration becomes more restrictive or expansive following the November general election, the next administration will most likely continue to encourage workforce investigations of Forms I-9 and employers’ enrollment in E-Verify.
Federal law requires employers to follow Form I-9 rules consistently for all employees regardless of national origin, citizenship status or immigration status.
Here are some tips to help employers answer questions that might arise during the hiring practice that could otherwise lead to discrimination.
Avoid unlawful pre-screening before an offer of employment is accepted.
Employers are prohibited from using the Form I-9, E-Verify, and/or the Social Security Number Verification Service to pre-screen employment candidates to determine whether they are authorized to work. The Form I-9 should only be completed after an offer of employment has been made and accepted. Employers also are not permitted to use E-Verify until the Form I-9 has been completed.
E-Verify was designed to help employers identify fraudulent documents and establish a lawful workforce, but E-Verify is limited and is not a safe harbor for employers. An E-Verify query against an employee can result in a tentative non-confirmation even if the employee is a U.S. citizen with the right to work in the United States. Employers should never automatically assume that someone is unauthorized solely on the basis of a tentative non-confirmation. Employers should provide an employee with a chance to attempt to correct the issue in E-Verify consistent with E-Verify rules before ever considering whether termination of employment is warranted.
If employers want to determine whether a job applicant requires sponsorship for work authorization, the Department of Justice’s Office of Special Counsel has stated that the following language is appropriate to ask prior to hire: “Are you legally authorized to work in the United States? Do you now or in the future require sponsorship for employment visa status?”
Inquiring about status to determine whether an export license is required.
U.S. citizens and nationals, refugees, asylees (a person who is seeking or has been granted political asylum) and recent lawful permanent residents are protected from citizenship status discrimination. These individuals are also considered “U.S. persons” under the Export Administration Regulations and the International Traffic in Arms Regulations, and do not require an export license.
“Non-U.S. persons” who will be exposed to sensitive information may require an export license in accordance with U.S. export controls laws. Employers who sponsor foreign nationals for a work visa must also attest as to whether an export license is required.
The Department of Justice’s Office of Special Counsel indicated that questions about citizenship and immigration status that are asked to all new hires and candidates for positions that are subject to export control laws are not likely discriminatory if the employer’s sole purpose is to determine whether an export license is required because of the position.
If employers ask these questions to influence a hiring decision or to determine whether the scope of work should be limited, they could be deemed discriminatory.
Require all personnel who complete Forms I-9 to undergo ongoing training to prevent discriminatory practices during the I-9 completion process.
The Form I-9 must be completed for every employee hired after Nov. 6, 1986. Officials announced that a new Form I-9 is being introduced this year to include “smart I-9 features,” such as help text and tools to facilitate data entry.
During the I-9 completion process, employers cannot legally request specific documents or too many documents from employees. Employers should present the list of acceptable documents to an employee so that the employee may choose whether to present a List A identity and work authorization document, or a combination of both a List B identity document and List C work authorization document.
Employees are only required to present a valid and original document. Improper rejection of valid documents could be deemed discriminatory.
Establish protocol to address fraud.
Employers should have a written policy with instructions to employers about what to do if an employee admits to previously presenting fraudulent documents to complete the Form I-9. An employer is not required to terminate employment unless it is the employer’s policy to do so where an employee admits to previously committing fraud and then presents an alternative valid document showing work authorization. The employee may continue working so long as alternative documentation is presented that appears genuine and related to the employee. On the other hand, an employer may decide that fraud will not be tolerated under any circumstance. Whatever the employer decides, the critical issue is that the policy be applied consistently.
Compliance audits should be carefully carried out to avoid the appearance of discrimination.
Employers should carefully plan the timing and scope of an audit to ensure that the audit is not perceived as unfairly targeting a specific group of employees. For example, an internal audit should not be limited to employees of one specific national origin. During a compliance audit, employers review historical Forms I-9 and, if attached, copies of documents presented during the I-9 completion process. During this process, if an employer reviews the photocopies of documents and determines that the validity of the documentation is questionable, then an employer must proceed cautiously.
In addition to complying with immigration law, employers must be careful to comply with anti-discrimination laws and export control laws. Due to the complexity of the laws, employers should obtain training and seek immigration counsel when creating their immigration policies.
Avalyn C. Langemeier is a partner with Foster LLP. Kari Blackman is a senior associate with Foster LLP. Both practice employment-based immigration law in Houston.
I am no fan of the NLRB and its aggressive agenda over the past few years. And, it appears I don’t stand alone.
Check out these scathing words from the D.C. Circuit Court of Appeals in Heartland Plymouth Court MI v. NLRB[pdf], in which the appellate court ordered the NLRB to pay the employer’s $17,649 in legal fees for the board’s bad faith litigation by continuing to pursue a case that the NLRB knew it could not win. Why? Because the NLRB’s position ran counter to the law of every single appellate court.
Facts may be stubborn things, but the Board’s longstanding “nonacquiescence” towards the law of any circuit diverging from the Board’s preferred national labor policy takes obduracy to a new level. As this case shows, what the Board proffers as a sophisticated tool towards national uniformity can just as easily be an instrument of oppression, allowing the government to tell its citizens: “We don’t care what the law says, if you want to beat us, you will have to fight us.” …
We recognize the Board’s unimpeded access to the public fisc means these modest fees can be dismissed as chump change. But money does not explain the Board’s bad faith; “the pleasure of being above the rest” does. Let the word go forth: for however much the judiciary has emboldened the administrative state, we “say what the law is.” In other words, administrative hubris does not get the last word under our Constitution. And citizens can count on it.
AT&T CEO Randall Stephenson recently addressed some 1,700 employee-resource group members about race. Not about business and race or the future or new products and services in a racial context; he spoke candidly about race, period.
He began by addressing the latest news from Dallas, Charlotte, police and black men killed — you’ve likely heard all about these major headlines — then he settled in and made things personal. He talked about his close friend Chris, who is black, and who he has known for many years. But it was only recently that Stephenson learned what a fraught history Chris had and realized how much it shaped his world view.
Stephenson spoke of the shame he felt for not knowing surprising and intimate details about his friend’s life, details and history that typically define a friendship but that were completely omitted from this one. Then, like all great storytellers, he connected this personal nugget from his own life to his theme around racial tension: “If two very close friends of different races don’t talk openly about this issue that’s tearing our communities apart, how do we expect to find common ground and solutions for what’s a really serious, serious problem? … Our communities are being destroyed by racial tension, and we’re too polite to talk about it.”
That’s basically where we are. Despite all of the evidence that screams, “there’s a big, big problem!” People still don’t want to talk about race. People don’t want to talk about gender bias and inequity, racial injustice, the cruelty and humiliation LGBT and disabled people are forced to endure on a daily basis. These topics are almost taboo in a way despite being perennially in the news because in the workplace, and in corner offices, the stigma around them lingers; and when it comes time for action, even the best intentions wither and die from lack of sustainable fuel.
I respect Stephenson so much for addressing racial tension head on. No dissembling, no politically correct waffling, he was thoughtful, but direct. Direct is very, very good.
Don’t get me wrong. Every conversation at work can’t and should not be about race or diversity. And it’s important to be polite, to be considerate. But when polite and considerate lead to a highly inequitable status quo that pats those concerned on their collective heads until occasional tensions dissipate without making change? When incidents are repeated and identified and then neatly swept into a file or brushed aside in favor of business as usual? That’s where direct becomes essential. Business as usual isn’t going to work much longer. I’d be willing to bet Stephenson knows that.
Forget the elephant in the room. He wants his customers, business partners and employees to know exactly where he stands on the racial divide — then they can act accordingly. “It takes work, it takes time, it takes emotion, and you’re gonna have to understand where the other one is coming from,” he said, “but we have to start communicating. And if this is a dialogue that’s going to begin at AT&T, I feel like it probably ought to start with me.”
He spoke again about his friend Chris and how his confusion with Chris’ response to certain issues has been replaced by a healthy dose of humility. And the next part in the speech literally made me swoon. I was nodding and clapping at my computer like I was seeing the event live. He said, “We should not say all lives matter to justify — ” and then the crowd erupted, and I missed the rest, but you get the picture.
For those who still don’t get it, he offered some fabulous examples to illustrate just why the phrase all lives matter in response to black lives matter is ridiculous. And then he moved into my favorite part of any diversity discussion, the action part, the what now/what are we going to do differently?
“When we talk about race let’s begin the discussion with why. Why does my colleague feel this way? If we can understand why, it’s so much more likely that we can begin to agree on what needs to be done. You guys, the AT&T ERGs, you are a model for America. Look around. Look around, folks. It does not get any more diverse than this.
“I’m not asking you to be tolerant of each other. Tolerance is for cowards. Being tolerant requires nothing from you but to be quiet and to not make waves, holding tightly to your views and judgments without being challenged. Do not tolerate each other. Work hard. Move into uncomfortable territory and understand each other … I encourage you, please. Let’s go out and understand each other, OK?”
I legitimately want to switch to AT&T just because of the brave and sincere stance this leader took on a controversial issue that is close to so many hearts, and I doubt I’m the only one.
If you don’t believe that race, LGBT, gender and all of the different dimensions of diversity and inclusion that I discuss in this blog, and that so many discuss in different media around the world, are important for business, you are deluding yourself.
After that speech makes the rounds do you think AT&T will have recruiting problems? No. Some of the best and brightest will beat down this company’s doors to join up with a leader who shares and is vocal about their views on the importance of racial diversity.
Will AT&T have trouble finding sponsors for its events? No. Will it have difficulty finding business partners? No. Even if it didn’t have these issues before, now that Stephenson has made his views crystal clear people, savvy companies will clamor to align themselves with him.
Some may shy away, of course, but honestly, who cares? The world is diverse, customers are diverse, businesses need to be diverse if they are to thrive and not just survive, and Stephenson knows that. That’s why he went out on the ledge and thumbed his nose at tolerance and the status quo, to let key stakeholders know who he is and what his company stands for.
Leaders, your customers and employees are watching you. They note where you stand, where you fall down, and where you refuse to stand. Randall Stephenson had church the other day. And his pews weren’t filled with church goers but with employees and customers and evangelists for his brand.
His actions were brave, smart, thoughtful and absolutely great for business. We would all do well to follow this leader’s example.
Kellye Whitney is the associate editorial director for Workforce. To comment, email editor@workforce.com.
I attended the Workday Rising conference in Chicago, my first major HR conference.
Almost 7,000 people attended. HR software company Workday released information about new products, features and partnerships. We’re going to take a break from my normal beat of wellness for a moment and consider two other workplace issues that I encountered at the conference: learning and recruiting.
James Cross, director of product strategy at Workday, spoke of the increasing relevance of video in today’s workplace learning. For example, Workday is incorporating video learning on its platform, and users can create their own content from their own phones. They can post it in seconds onto the platform for learners to watch.
The rising importance of video is as significant as the rise of mobile a few years back, Cross said, paraphrasing Facebook’s Mark Zuckerberg who saw the increasing importance of video and developed Facebook Live.
Video has always been powerful, Cross said, but it’s only recently that it’s been at the reach of your average person or consumer. And because people consume so much video content in their everyday lives, they want their learning content to look the same.
But this explosion of video in the consumer world — think YouTube — hasn’t been as quick to spread to the enterprise market, which is why Workday is investing so much time in developing a simple, effective video learning system.
The other gem of this conversation: Cross started out his career as a high school music teacher, which is when he realized how video could have such a strong impact on learning. At the time though, video was difficult enough that other teachers didn’t necessarily use it in the same way. Now in 2016, video is so simple anyone with a phone can create video content.
My conversation with Cross was valuable, first of all, because I used to write mostly for our sister magazine Chief Learning Officer about learning and development. Now, on my benefits and wellness beat I wonder: If the rise of video is such a noteworthy development, how might video be incorporated in wellness programs, benefits communications and the like? The rise of telemedicine, for example, is related to the increased availability of video chatting and the convenience of speaking to a doctor or counselor via a phone or computer. Increased access to video and increased simplicity in creating video content is something that could impact other parts of a business outside of learning.
I also spoke with Kelly Swanson, director of HR operations at FICO, the leading data analytics software company. The company is now using Workday’s platform and especially found value in the recruiting capabilities. What was especially interesting about this conversation was how FICO used very focused data to recruit a particular type of person: students.
Whereas before their internship program was not robust, now internships are key to FICO’s growth strategy. The company looks at developing interns for full time positions, Swanson said. They use this recruiting system, which allows them to focus the search and find the right people who are interested in working in the industry.
Also key to this conversation: the unification of HR processes. For example, FICO uses Workday, which unifies everything from recruiting to onboarding to compensation under one platform and which does so across all of FICO’s 38 global offices.
Simplifying HR processes is something I hear a lot about now, and as I head to my next HR conference next week, I’ll be sure to look out for more about it.
Andie Burjek is a Workforce associate editor. Comment below, or email at aburjek@humancapitalmedia.com. Follow Workforce on Twitter at@workforcenews.
