Author: Rick Bell

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The Problem With You vs. Them

It starts out with good intentions to celebrate diversity, ensure equity and practice inclusive leadership. You implement employee resource groups for historically underrepresented groups like LGBTs, start a mentoring program for women of color, and equip leaders to coach millennials on workplace norms and professionalism. But after a while you revisit your D&I metrics and find you haven’t met your goals. In fact, your results are slightly worse than when you started.WF_WebSite_BlogHeaders-12

What’s going on?

The problem may be an incomplete or misguided sense of what inclusion is. Like the rest of your leadership team, you’re smart and well intended and have a commitment to D&I grounded in supporting employee brilliance and excellence, which generate tangible results for your organization. You believe one way to accomplish this is to help certain identity groups feel more a part of things, supported in their professional development and generally brought into the fold.

The problem with this approach is that it’s an assimilation model based on the notion that “they” must be more like “you” to succeed and add value. It subtly communicates that “you” are superior and “they” are inferior and need fixing.

This presents a power imbalance that doesn’t leverage the real reason diversity plus inclusiveness gets better results: multiple brains contributing their unique brilliance to form a bigger combined brain that generates more ideas and makes better decisions. True inclusion or inclusiveness isn’t just about hearing all voices and taking them seriously; it’s about ensuring shared power and equitable involvement in decision making. True inclusiveness means that “you” too are open to exploring what “they” bring and changing how “you” do things.

Consider the way millennials are commonly viewed and treated in the workplace. I often hear negative, even emotional opinions expressed about millennials’ supposed lack of work ethic and poor workplace habits in stereotypical terms, which if used to discuss a group of color would likely result in serious outcry and lawsuits.

The dominant belief is that these young people must be taught how to behave correctly. However, there isn’t anything inherently correct or superior about leaving earbuds at home, staying off phones in meetings, following orders without giving feedback or insisting on personal benefit.

Behaviors are assigned meaning within a particular set of beliefs and norms, also known as culture. Common behaviors exhibited by millennials and other identity groups can actually add value if explored with curiosity and commitment to win-win solutions. New, even odd behaviors can provide tremendous positive results, especially within the context of their cultural frame, which — like it or not when it comes to millennials and people of color — is the future. If you have doubts, read this article about how millennials are doing exactly that in organizations, including Starbucks, that listen and adapt.

At the same time, there are new or different behaviors that don’t add value, and the old way is demonstrably better in terms of business impact, productivity, results, engagement or just plain workplace awesomeness. Perhaps a certain dress code, work station layout, schedule or set of meeting norms really are the best fit to support your organization’s vision, mission, goals and objectives.

The key to success is taking the time to explore, engage and devise creative solutions that maximize benefit to all parties, not just you. This includes gathering data to determine what is true and not based on assumptions. For example, is it really true that your customers fear employees with tattoos or don’t take them seriously if they don’t wear ties?

Creating an inclusive culture isn’t “either-or”: either requiring “them” to adapt and assimilate to you or you offering everything up for debate and input by “them.” The answer is “both-and,” which requires time, effort and intentionality at first, but pays huge dividends over time and allows “you” to ensure your sustainability and relevance into a future dominated more by “them.”

Susana Rinderle is president of Susana Rinderle Consulting LLC. Comment below or email editors@workforce.com.

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What Employers Can Learn from EEOC’s New Enforcement Guidance on Retaliation

Jon Hyman The Practical Employer

The EEOC on Aug. 29 published its final Enforcement Guidance on Retaliation and Related Issues. It’s the agency’s first formal guidance on this issue since 1998, and was long overdue.WF_WebSite_BlogHeaders-11

After all, according to EEOC Chair Jenny R. Yang, “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.” She adds, “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”

The lengthy guidance addresses retaliation under each of the statutes enforced by EEOC, and includes a discussion of the separate “interference” provision under the ADA, which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.

In addition to the enforcement guidance, the EEOC also simultaneously published a summary Q&A and a short Small Business Fact Sheet.

The guidance offers in depth discussions of protected activities, adverse actions, and causation, and is required reading for all employers. I’d like to focus on the document’s coda, titled, “Promising Practices,” which discusses policies, training, and organizational changes employers can implement to reduce the likelihood of retaliation.

A. Written Employer Policies
Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do. The policy should include:

  • Examples of retaliation that managers may not otherwise realize are actionable, including actions that would not be cognizable as discriminatory disparate treatment but are actionable as retaliation because they would likely deter a reasonable person from engaging in protected activity;
  • Proactive steps for avoiding actual or perceived retaliation, including practical guidance on interactions by managers and supervisors with employees who have lodged discrimination allegations against them;
  • A reporting mechanism for employee concerns about retaliation, including access to a mechanism for informal resolution; and
  • A clear explanation that retaliation can be subject to discipline, up to and including termination.

Employers should consider any necessary revisions to eliminate punitive formal or informal policies that may deter employees from engaging in protected activity, such as policies that would impose materially adverse actions for inquiring, disclosing, or otherwise discussing wages. Although most private employers are under no obligation to disclose or make wages public, actions that deter or punish employees with respect to pay inquiries or discussions may constitute retaliation under provisions in federal and/or state law.

B. Training

Employers should consider these ideas for training:

  • Train all managers, supervisors, and employees on the employer’s written anti-retaliation policy.
  • Send a message from top management that retaliation will not be tolerated, provide information on policies and procedures in several different formats, and hold periodic refresher training.
  • Tailor training to address any specific deficits in EEO knowledge and behavioral standards that have arisen in that particular workplace, ensuring that employees are aware of what conduct is protected activity and providing examples on how to avoid problematic situations that have actually manifested or might be likely to do so.
  • Offer explicit instruction on alternative proactive, EEO-compliant ways these situations could have been handled. In particular, managers and supervisors may benefit from scenarios and advice for ensuring that discipline and performance evaluations of employees are motivated by legitimate, non-retaliatory reasons.
  • Emphasize that those accused of EEO violations, and in particular managers and supervisors, should not act on feelings of revenge or retribution, although also acknowledge that those emotions may occur.
  • Include training for management and human resources staff regarding how to be responsive and proactive when employees do raise concerns about potential EEO violations, including basics such as asking for clarification and additional information to ensure that the question or concern raised is fully understood, consulting as needed with superiors to address the issues raised, and following up as soon as possible with the employee who raised the concern.
  • Do not limit training to those who work in offices. Provide EEO compliance and anti-retaliation training for those working in a range of workplace settings, including for example employees and supervisors in lower-wage manufacturing and service industries, manual laborers, and farm workers.
  • Consider overall efforts to encourage a respectful workplace, which some social scientists have suggested may help curb retaliatory behavior.

C. Anti-Retaliation Advice and Individualized Support for Employees, Managers, and Supervisors

An automatic part of an employer’s response and investigation following EEO allegations should be to provide information to all parties and witnesses regarding the anti-retaliation policy, how to report alleged retaliation, and how to avoid engaging in it. As part of this debriefing, managers and supervisors alleged to have engaged in discrimination should be provided with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace.

  • Provide tips for avoiding actual or perceived retaliation, as well as access to a resource individual for advice and counsel on managing the situation. This may occur as part of the standard debriefing of a manager, supervisor, or witness immediately following an allegation having been made, ensuring that those alleged to have discriminated receive prompt advice from a human resources, EEO, or other designated manager or specialist, both to air any concerns or resentments about the situation and to assist with strategies for avoiding actual or perceived retaliation going forward.

D. Proactive Follow-Up

Employers may wish to check in with employees, managers, and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation, and to provide guidance. This provides an opportunity to identify issues before they fester, and to reassure employees and witnesses of the employer’s commitment to protect against retaliation. It also provides an opportunity to give ongoing support and advice to those managers and supervisors who may be named in discrimination matters that are pending over a long period of time prior to reaching a final resolution.

E. Review of Employment Actions to Ensure EEO Compliance

Consider ensuring that a human resources or EEO specialist, a designated management official, in-house counsel, or other resource individual reviews proposed employment actions of consequence to ensure they are based on legitimate non-discriminatory, non-retaliatory reasons. These reviewers should:

  • Require decisionmakers to identify their reasons for taking consequential actions, and ensure that necessary documentation supports the decision;
  • Scrutinize performance assessments to ensure they have a sound factual basis and are free from unlawful motivations, and emphasize the need for consistency to managers;
  • Where retaliation is found to have occurred, identify and implement any process changes that may be useful; and
  • Review any available data or other resources to determine if there are particular organizational components with compliance deficiencies, identify causes, and implement responsive training, oversight, or other changes to address the weaknesses identified.
While many of these tips seem like common-sense HR practices, the guidance serves a good reminder to review and, if necessary, update policies, train management and employees, and stay current with the law. While we, as employers and their advocates, tend to beat on the EEOC for its pro-employee advocacy, the proactive advice set forth in its retaliation guidance is solid and should not be ignored.
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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New OSHA Whistleblower Manual Creates Huge Burden for Employers

Jon Hyman The Practical Employer

We typically think of OSHA in terms of workplace safety. Safety, however, is only a small part of what OSHA does. In fact, in addition to guarding our nations’ workers from workplace hazards, OSHA also enforces the anti-retaliation provisions of a veritable alphabet soup of federal statutes, such as the Sarbanes-Oxley Act, the Affordable Care Act, and the Clean Air Act, and the Wendell H. Ford Aviation Investment and Reform Act of the 21st Century (really, that’s a thing).

For most of those OSHA-enforced anti-retaliation statutes, OSHA has made employers’ anti-retaliation compliance a whole lot more difficult.

On Jan. 28 of this year, OSHA published a new Whistleblower Investigations Manual [pdf]. It is the guidebook OSHA investigators use to determine whether the agency should pursue or dismiss a retaliation case.WF_WebSite_BlogHeaders-11

In that manual, OSHA both significantly decreased the showing that a complaining party must show to establish a whistleblower retaliation claim, while, at the same time, significantly increased the burden an employer must meet to demonstrate that it took the challenged adverse action for a legitimate business reason and escape liability.

The new, lower standard in whistleblower retaliation investigations is whether “OSHA has reasonable cause to believe a violation occurred.” Indeed, OSHA need only “find reasonable cause that a complaint has merit” to conclude that the employer violated the statute.

How low is this burden? I’ll let OSHA explain:

Under the reasonable cause standard, OSHA must believe, after evaluating all of the evidence gathered in the investigation from the respondent, the complainant, and other witnesses or sources, that a reasonable judge could rule in favor of the complainant.… Because OSHA makes its reasonable cause determination prior to a hearing, the reasonable cause standard is somewhat lower than the preponderance of the evidence standard that applies following a hearing. Accordingly, OSHA’s investigation must reach an objective conclusion – after consideration of the relevant law and facts – that a reasonable judge could believe a violation occurred. The evidence does not need to establish conclusively that a violation did occur.

In other words, OSHA need not find much in support of a complaint to conclude that it has reasonable cause to believe a violation occurred. It’s about as low of an evidentiary standard as one could have.

Among other statutes, this lower standard of proof applies to The Energy Reorganization Act, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, the Surface Transportation Assistance Act, the Sarbanes Oxley Act of 2002, the Pipeline Safety Improvement Act of 2002, the Federal Railroad Safety Act, the National Transit Security System Act, the Consumer Product Safety Improvement Act of 2008, the Affordable Care Act, the Consumer Financial Protection Act of 2010, the Seaman’s Protection Act, the FDA Food Safety Modernization Act, and the Moving Ahead for Progress in the 21st Century Act. Because of the wide range of industries these statutes impact, the odds are pretty good that this change impacts your business.

All is not lost for employers, however, because the manual gives employers an out (albeit a narrow one), even if OSHA finds reasonable cause. Again, I’ll let OSHA explain:

Under these statutes, even if there is reasonable cause to believe that protected activity was a contributing factor to the adverse action, the respondent may escape liability (and OSHA will issue non-merit findings) if there is clear and convincing evidence that the respondent would have taken the same action in the absence of the protected activity.

As low of a standard “reasonable cause” is, that’s how high a standard clear and convincing is. It is the highest civil liability standard there is.

What does all this mean for employers? It means that OSHA is having its retaliation cake and eating it too. For all of these whistleblower statutes, OSHA will find a violation on the most minimal of showings, and yet require employers to jump the highest civil evidentiary hurdle possible to avoid the same.

And you know what? That’s just not fair.

Instead of making it impossible for an employer in all but the clearest of cases to avoid liability, it should strive for a level playing field. Instead, OSHA has tilted the playing field so strongly in a employee’s favor that, if an employee files a whistleblower complaint under one of these “contributing factor” statutes, the employer best be prepared to litigate or pay up, because, in all the but the clearest of cases, OSHA has made it increasingly difficult, if not nearly impossible, for an employer to win.

I understand the importance of protecting whistleblowers and creating an environment in which employees feel comfortable coming forward with complaints, but there has to be a fairer means to accomplish this goal.

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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Venture Capital’s Love Affair With HR Tech Rolls On

VentureCapital-400_600If you ever dreamed of starting an innovative new HR technology company but worried you couldn’t secure the capital, now is the time to make your dreams come true.

The venture capital world is doling out deals to these companies at a record pace with no signs of slowing down. Both funding and deal activity hit new highs in 2015, with firms landing $2.4 billion across 383 deals. That follows similar high rates of investment in 2013 and 2014 alike.

It’s not surprising, said Holger Mueller, principal analyst and vice president at Constellation Research. “Investing in HR tech is a strong model from a macroeconomic perspective,” Mueller said. He argued that a number of talent-focused business trends, including the aging workforce, war for talent, breakdown of performance management strategies and the need to drive retention and productivity makes HR technology an easy sell for investors. “Every company needs better talent.”

According to CB Insights, a venture capital and angel investment database, HR technology firms by the end of the first quarter of 2016 already had received roughly $600 million in venture capital across 106 deals. The deals this year include on-demand hiring startup SnagAJob, which raised $100 million in Series E funding; recruitment marketplace Hired, which raised $40 million in a Series C round; and background-checking platform Checkr, which raised $40 million in a Series B round.

Looking back, 2015 presented a similar spending spree, according to CB Insights research. Deals ranged from relatively small Series A round funding to start-ups like Lytmus, a virtual machine-based platform for sourcing tech talent that secured $7.2 million in September from Andreessen Horowitz and another partner; to much larger investments, including the $150  million that went to OneSource Virtual, a business process as a service (BPaaS) provider that utilizes Workday technology. That deal was led by Technology Crossover Ventures and closed in June 2015.

The fact that most of these companies are cloud-based makes even tiny start-ups a viable option in the eyes of investors, especially as demand for cloud-based HR solutions continues to rise. More than 40 percent of all companies are currently in the process of replacing their core HR technology with cloud systems, according to Deloitte’s 2016 Global Human Capital Trends report. The move will lessen their reliance on on-site infrastructure and allow them to take advantage of innovative new technologies without a significant investment.

“HR is leading the migration to the cloud,” said Wes Bryan, co-founder of OneSource Virtual. “Those legacy systems are going to break down and HR leaders are ready to take chances on where they want to go next.” This transition is enabling greater integration between systems, and more robust talent analytics to help these leaders identify talent trends and improve the employee experience.

Cloud-based companies also require a lot less overhead to ramp up so their leaders can focus more on developing innovative solutions rather than ramping up infrastructure, Mueller said. “Two guys in a Starbucks can build a product and reach HR decision makers in a matter of months.” That’s good news for HR leaders looking for new solutions to their HR problems, because it is easier for companies to take a risk on a cloud-based vendor, he said. “If it doesn’t work they just don’t renew the contract.”

Performance Management and Payroll

Venture capitalists are particularly interested in companies offering performance management solutions that promise to make this process faster, easier and less awful for employees. “Everyone agrees that performance management is broken,” Mueller said. “There is definitely an opportunity for disruption in this space.” One company drawing a lot of attention — and capital — is Zugata, a provider of mobile software that lets employees provide and receive performance feedback on their smartphones. The company secured $3.1 million for General Catalyst and other investors in October 2015, a mere 10 months after its initial launch.

The key benefit is that the feedback flows in an easy ongoing process, rather than a once a year event, which is less annoying and more useful, according to Zugata co-founder Srinivas Krishnamurti. “We think it’s more important to help employees develop versus just giving them a pay raise. They need to understand what they’re good at and not good at,” Krishnamurti told Fortune.

Start-ups that are willing to play a longer game are also finding some success in the ripe-for-disruption payroll sector dominated by ADP. Gusto, the payroll and benefits service provider (formerly ZenPayroll), raised $50 million in December 2015 and another $25 million in March. “They are modernizing the way companies do payroll,” Mueller said.

HR leaders interested in expanding beyond their current systems should see these investments as an opportunity to dabble with new innovative solutions and see what sticks, Bryan said. “It can be scary to take a chance on a start-up, but you’ve got to take risks if you want to move your business forward.”

Despite financial woes, a battering in the media and the loss of CEO Parker Conrad, Zenefits is still the most well-funded HR technology firm of the past five years. To date, the cloud-based health insurance and HR software provider has secured $584 million in multiple funding rounds.

“Even after losing two-thirds of its value, Zenefits is still a good investment,” Mueller said.

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

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Before the Whistle Blows: Creating a Speak-up Culture at Work

 

We’d all like to believe that the companies we work for are on the up-and-up. That from the top of the organizational chart to the bottom, everyone is on the same page when it comes to honest business practices and integrity.

The reality is that all organizations suffer lapses in ethics and compliance at times. Strengthening a company’s ethics program — and making it central to business strategy — won’t eliminate such lapses, but research shows it can reduce misconduct “by as much as 66 percent in organizations with effective programs,” according to the Ethics and Compliance Initiative, a report based on the findings of a panel of 24 thought-leaders including myself.

A key element of any effective ethics and compliance program involves promoting a “speak-up” culture that empowers employees to report suspected violations early.

Creating a “speak-up” culture puts a premium on ethical decision-making across the board with responsibility shared by all. But setting the tone and promoting that culture rests squarely on the shoulders of organizational leaders.

Their endorsement and modeling create an atmosphere of openness and trust that reassures employees who are understandably anxious about coming forward, whether out of fear of being let go or fear of being ostracized. Leaders who take employee concerns seriously and follow through send a strong message about integrity.

But as the ECI report highlights, there are several desirable and effective practices that broadly apply. They involve formal mechanisms as well as thoughtfulness and creativity. 

Provide Multiple Methods for Reporting

One starting place for organizations is to make sure that managers and supervisors receive thorough training in how to respond to and guide employees who come forward. These sessions may also expand to include full team training with hypothetical scenarios or case studies. Simultaneously, the organization ensures that the ethics and compliance policy is clear on how violations are identified and acted upon. Employees must know what constitutes misconduct within the organization and at what point it should be reported. From there, employees need to know the methods available for speaking up.

A high quality ethics program will have multiple methods for reporting concerns. These may include talking confidentially with a supervisor, an ethics and compliance officer or a human resources representative. Use of a company “hotline” or reporting website can also go a long way toward encouraging employees who are more comfortable reporting anonymously. Global organizations should include translation services as needed and the ability to report day or night. Whatever the method, the program should make clear how the complaint will next be handled.

Treat All Reporters the Same

When an employee chooses to report face-to-face, the manager should focus on the investigation of the allegation, not the reporter, no matter how often they have come forward or the perceived seriousness (or lack thereof) of the allegation. This approach will underscore a commitment to addressing problems while at the same time sending a message about consistency and fair treatment for all employees.

Managers may also wish to acknowledge the employee’s courage as doing so may help ameliorate a natural sense of discomfort or fear. Most importantly, the manager must emphasize the organization’s policy of non-retaliation for coming forward. Protecting an employee from blowback from the start and at every step of the way as the investigation proceeds supports a team commitment to resolution by the manager and the reporter.

As the issue proceeds, the organization should check in with the reporter periodically to make sure they have not experienced any retaliation. Substantiated instances must be brought to the attention of senior management and, as appropriate, the board.

For employees who just want to report the initial finding and skip the check-in process, the company can monitor their career success over the long term to get a read on well-being and any possible retaliation.

Acknowledge the Outcome

When a case concludes, where possible the organization will want to close the loop by communicating directly with the reporter about the outcome. Managers should reiterate their gratitude and admiration for coming forward. But the moment also presents a golden opportunity to reinforce the speak-up culture across the board.

Organizations should consider sharing the results with all employees in a manner that does not include identifying details about the parties involved (such as an appropriately scrubbed employee newsletter entry). When the wrongdoing is very public, the organization should generally acknowledge the issues to all employees and the actions it took to rectify them.

Establishing a high quality ethics program with a strong speak-up culture requires thorough planning and commitment. It’s not a simple matter of checking off the one-size-fits-all boxes. Compliance is an ongoing process that requires frequent check-in and check-ups.

But it’s well worth it. Research shows that in organizations with effective ethics and compliance programs, reporting of wrongdoing to managers increased by 88 percent, according to the ECI Report. In the long run, promoting a speak-up culture not only helps to protect an organization from possible misconduct and reputational damage, but it also demonstrates the organization’s commitment to its employees.

Matthew Pachman is the chief risk and compliance officer at FTI Consulting. Comment below or email editors@workforce.com.

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Saas, PaaS and the Next Iteration of Talent Acquisition Technology

 

 

The HR technology industry has had many different lives since first adopting process automation in the 1990s.

Initially, there were providers creating customized software to address specific employee-centric needs of each customer. This already complicated the HR professionals’ relationships with their software providers, making it extremely difficult to implement necessary updates across the user base and keep up with emerging technology trends. With such complex processes tied to every aspect of employment — from hiring to performance management to learning and payroll — it’s easy to see how this space became very crowded, very quickly.

At the same time, technology as a whole completely transformed, becoming more accessible than ever with the majority of providers moving to a Software-as-a-Service, or cloud-based, model. Some software companies built this way to start; others migrated their on-premise clients onto what’s commonly called SaaS, favoring their newfound ability to host applications and data online and utilize shared computing resources. This brought down the cost of technology implementations and allowed for faster, better software upgrades.

SaaS became the new go-to for technology, but many organizations were already looking around the corner to what was next — Platform-as-a-Service. While SaaS allows companies to more easily manage necessary computing resources like networks and servers, PaaS essentially allows more tools to be brought to market quickly, helping to simplify the actual coding and deployment of applications.

SaaS is a dream for technology buyers, while PaaS is a dream for software developers. The benefit will soon trickle down to end-users because more software products will be available more quickly, and all accessed through a common user interface.

One of the industry’s biggest success stories of recent years is undoubtedly Salesforce.com, a company that has addressed customers’ desires for easy-to-use software that can support a variety of business transactions, from marketing automation to customer relationship management to service ticketing, within one platform via strong integrations with other technology providers. By empowering customers with a third-party marketplace, AppExchange, to select the point solutions best-suited for their unique needs and allowing them to plug into the force.com platform, salesforce.com emerged as the dominant player in the PaaS movement.

The company’s ability to embrace PaaS helped salesforce.com address one of the two top concerns of every CEO: sales. (CEOs’ second top concern? Acquiring and retaining the right talent.)

And while a Platform-as-a-Service leader in sales operations exists — and is thriving — the market is ripe for a platform that can provide similar support to businesses’ talent acquisition efforts. Consider this: The U.S. recruiting market is valued at $130 billion with talent acquisition in particular comprising $8.5 billion of that.

Employers realize the importance of investing in the right people to drive their business strategies, and they want technology that fosters synchronization of HR processes with simple integrations that offer the benefit of a unified software’s look and feel, but with best-of-breed tools behind the scenes to power reporting across different solutions.

Gartner reports that the PaaS segment has shown the most impressive growth across the entire enterprise software market. Talent acquisition leaders are discovering how PaaS may become the new SaaS — allowing HR professionals to identify, test, manage and report on all of the solutions their business needs from one system, one platform of record. Talent data management doesn’t have to be a mystifying process anymore.

The ability to build a PaaS solution or app-style marketplace hinges on each provider’s interest in opening programming interfaces to their platforms and working closely with selected application vendors as partners. Talent acquisition does not live within a silo in the HR industry, and neither should its dedicated technology. With smart, simple user interface design, talent acquisition platforms have the opportunity to become the central starting point for all employee-centric services, creating a much-needed category to address both of the C-level’s top business concerns.

Susan Vitale is chief marketing officer at iCIMS.

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A Humane Approach to Layoffs

Our life experiences dictate our worldview. Such is the case with my opinion on the corporate layoff, as it has recently hit very close to home.

For the sake of anonymity, I’ll speak in hypotheticals.

An employee (I’ll call her “Jane”) has worked for Company X for nearly a decade over two different tenures. By all accounts, Jane is a good employee and well-regarded by her peers. Company X recently agreed to acquire Company Y, which, unfortunately, has made Jane’s position redundant. As a result, Company X decides to eliminate Jane’s position. So far, so normal.

Here, however, is where the story takes a turn. Company X, for lack of better description, sandbags Jane. It made the decision to eliminate her position in March, yet doesn’t communicate it to her until May, when it calls her into a conference room, tells her she has been laid off, and that it’s her last day of employment. Jane, shell-shocked, packs her office, takes her severance agreement and leaves. Jane later discovers that the negative and unwarranted performance review she received in April was part of a plan to support Company X’s decision to include her in the May layoff.

Employers, we need to approach layoffs differently. Employees caught in the net of a corporate downsizing aren’t necessarily bad employees. More often than not, they are victims of circumstance. Yet, too often we treat them like hardened criminals. I know of employers that perp-walk the recently laid off out of the building with armed escorts. What message does this send to the laid-off employee and to the employees left behind? That we don’t think of you as a person, but as a cog in the machine, which we likely don’t trust. This mindset needs to change.

What happened to treating employees with dignity, fairness and respect? Just because we are laying people off doesn’t mean that we should stop exhibiting these values.

How can we treat employees more like human beings in handling layoffs? Let me offer four suggestions.

  1. Overcommunicate with all of your employees. Be open and honest in why your employees are losing their jobs. Explain how the layoff will affect them, including the timing of the layoff and, for those losing their jobs, the severance benefits available. Keeping your employees informed will help squelch the rumor mill, which will undermine everything you are otherwise trying to accomplish.
  2. Treat everyone equitably. As best as possible, use objective criteria to determine who stays and who goes. Employer X used negative subjective criteria in Jane’s performance review to justify including her in the layoff. Jane did not perceive those subjective criticisms as warranted, especially when she was an objectively high performer, and no one had ever before similarly criticized her for the reasons expressed in her negative review. The use of these subjective criteria left Jane with the (not unreasonable) belief that Company X purposely lowballed her review to justify her inclusion in the layoff. This gamesmanship not only reflects poorly on your organization, but it could also lead to pretextual challenges to your decision-making in later discrimination lawsuits.
  3. Help people find jobs. Consider laid-off employees for other opportunities within your company. Provide written job references that will help them land on their feet. Offer outplacement that will assist them in writing effective résumés and networking to find new employment. And, for goodness sake, if you (practically) promise a specific position to a laid-off worker, don’t later give it to someone else. That’s just plain mean.
  4. Don’t toss people out onto the street. When someone loses a job, time is their best asset. Provide them as much as you can afford. If Company X knew in March that it would have to lay off Jane (an otherwise quality, longstanding employee with good character) in May, what was the harm in telling her in March? It would have provided her two extra months to find another job, and it wouldn’t have left Jane with such a bad feeling about Company X. Companies claim concerns about confidential information excuse such (mis)behavior. If that is a legitimate concern for a specific employee, you might be justified in treating that employee differently. Otherwise, you have no reason to treat a laid-off employee like a criminal. Even the federal Worker Adjustment and Retraining Notification, or WARN, Act provides 60 days’ notice before a mass layoff. You can simultaneously protect your information and treat people humanely.

The bottom line? Treat your employees like human beings throughout the layoff process, and everyone will be better as a result.

What happened to treating employees with dignity, fairness and respect? Just because we are laying people off doesn’t mean that we should stop exhibiting these values.

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.

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OSHA Says ‘Negative’ to Post-Accident Testing

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Buried in OSHA’s impending final rule on electronic reporting of workplace injuries and illnesses is this little nugget. OSHA believes that you violate the law if you require an employee to take a post-accident drug test. Let me repeat. According to OSHA, you violate the law if you automatically drug test any employee after an on-the-job accident.

Allow me to pause while this sinks in. 

While this prohibition doesn’t appear in the the actual text of the final rule, it does prominently appear in OSHA’s interpretation of the provision which prohibits employers from retaliating against employees who reporting a work-related injury or illness:

OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.… [T]his final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.… Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.

“What about workers’ compensation laws,” you say? “State law requires post-accident testing. What gives?” OSHA hears your cries, and has an answer for you:

A few commenters also raised the concern that the final rule will conflict with drug testing requirements contained in workers’ compensation laws. This concern is unwarranted. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws.

Make no mistake, this interpretation is huge for employers. As a result of this new reporting standard, employer policies that require post-accident drug testing will face scrutiny by OSHA, and OSHA will cite you for any policy that mandates post-accident testing without consideration of the specific facts and circumstances of the injury. Further, OSHA will deem retaliatory any employer discipline for a failed or refused post-accident test unless the drug use is likely to have contributed to the accident and for which the test can accurately identify pre-accident drug-related impairment. That’s a high bar for employers to clear.

This rule was to take effect on Aug. 10, but OSHA has stated that it is delaying enforcement until Nov. 1. If you have a drug testing policy or otherwise engage post-accident testing in your workplace, now is the time to review your policies and practices with your employment counsel. This issue is very much on OSHA’s radar, which means it must be on your radar also.

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.

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For God’s Sake, Think Before You Email

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I have lots of readers. Thousands upon thousands. Do you know who doesn’t read my blog, however? Former DNC chair (and Congresswoman) Debbie Wasserman Schultz. How do I know? Because, if she does, she would have read this:

Do I really need to tell you not to ever put something like “do we really want an obese Christian” in an email. Some things are better left unsaid, or, more to the point, un-typed. And, for god’s sake, please read those emails (all of them) before you click send. It makes my job a whole lot easier defending you without that smoking gun.

And this:

Unlike diamonds, email messages aren’t forever, but they are pretty darn close. Employers need to train managers and supervisors to be vigilant in their care about what they reduce to writing in emails. Emails, especially those pertaining to the employment (or impending unemployment) of those in a protected class, must be vetted and re-vetted before being sent. Ask yourself this question: “Would I want this email read to a judge or a jury?” Unless the answer is an unequivocal “Yes”, do not send it.

And this:

Email is a powerful communication tool. It’s also very permanent. I’ve been saying this about social media for years, but perhaps it’s time to remind employers that communication is communication, no matter how it’s transmitted. If you don’t want something to appear on the front page of the newspaper, or to be read in front of a judge or jury, don’t put it in writing. Don’t email it, don’t text it, don’t Facebook it, and don’t tweet it.

Please, please, please, please, please … email should not be your default communication tool. It leaves a trail, and you cannot assume that trail is ever private. Just ask Debbie Wasserman Schultz. If anything you are writing gives you any pause at all as to whether it should be in writing, pick up the telephone, or meet for a cup of coffee. You’d think as ubiquitous as email has become we would all know this lesson by now. Debbie Wasserman Schultz reminds us that this is a lesson worth repeating.

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.

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Ohio Supreme Court Sides With Workers’ Comp Fraud

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Ohio has a specific statute that protects injured workers from retaliation after filing a workers’ compensation claim. O.R.C. 4123.90 states:

No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.

It would seem that for this statute to protect an employee, the employee’s alleged injury must be an actual workplace injury.

Not so fast.

In Onderko v. Sierra Lobo, Inc. [pdf], the Ohio Supreme Court recently held:

The necessary elements of a prima facie case of retaliatory discharge under R.C. 4123.90 do not include proof that the plaintiff suffered a workplace injury.

Lest you think I’m relying on scare tactics, the case actually involved an employee fired after filing a false workers’ comp claim against his employer. The court tried to reason otherwise (“Filing a false claim or making misleading statements in order to secure workers’ compensation is a crime in Ohio. … We resist interpreting the anti-retaliation statute in such a way that would vest employers with the discretion to label any unsuccessful claim as deceptive and then terminate the employee.”).

Nevertheless, the facts of Onderko are what they are. The employer fired Onderko for his “deceptive” attempt to obtain workers’ compensation benefits for a non-work-related injury. He injured his knee while pumping gas on his way home from work, and falsely tried to claim that the gas-pump injury was an exacerbation of an earlier work injury.

We should all be troubled by a judicial decision that discourages employers from terminating dishonest employees. Sadly, only one of the court’s justices was similarly troubled, writing the following in dissent:

A court should not construe the statute in a manner to encourage fraudulent claims for workers’ compensation benefits, and here, the Bureau of Workers’ Compensation determined that there was no workplace injury. The evidence therefore supports the trial court finding that Sierra Lobo, Inc., fired Onderko for filing a fraudulent claim.

Nevertheless, we are left with Onderko as the law in Ohio. It no longer matters whether the workers’ compensation injury underlying a retaliation claim is legitimate or illegitimate, or the employee filing such a claim is truthful or a perpetrator of a fraud. And, sadly, that’s no lie.

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.