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Tag: equality

Posted on March 30, 2021

Let’s meet employees where they are on their pronouns

diversity, gender

In Meriwether v. Hartop, the 6th Circuit recently decided that a state university cannot force a professor to use students’ preferred gender pronouns, and permitted the prof to proceed with his lawsuit challenging the school’s discipline for his misgendering.

The plaintiff, Nicholas Meriwether, a philosophy professor at Shawnee State University and a devout Christian, challenged the school’s decision to discipline him for violating a policy that instructors were to use a student’s preferred pronouns after a student accused him of refusing to properly identify her as a woman or with she/her pronouns. Meriwether claimed the policy violated his First Amendment free-speech and religious freedoms. The 6th Circuit agreed enough to re-institute his claim.

Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment. The district court dismissed the professor’s free-speech and free-exercise claims. We see things differently and reverse.

Unless you are a public employer governed by the Constitution and the First Amendment protections it guarantees, Meriwether has limited applicability to your workplace, your rules and your employees. Moreover, after Bostock v. Clayton County, it’s likely a Title VII violation to intentionally misgender an employee.

Nevertheless, legal or illegal, Meriwether can teach us some important lessons about meeting employees where they are. Here are some things to think about regarding gender, pronouns, and your employees.

1. Educate yourself about the use of pronouns. When I went to school I learned that “he” refers to a singular male, “she” to a singular female,” and “they” to plural wo/men. That is no longer the case. A man can identify as “she” and a female as “he,” and they/them pronouns are used for individuals who identify as non-binary, gender-fluid, or whoever chooses to use them.

2. Do not assume what pronouns your employees use. Just because someone presents a particular way doesn’t mean they their pronouns fit match that presentation.

3. If you’re unsure, ask. Your employees who use alternate pronouns will be more than happy to help you.

4. Avoid gendered language. For example, use “y’all” instead of “you guys” and “everyone” or “people” instead of “ladies and gentlemen” or “men and women.”

More to the point, if you insist that you must refer to someone born with a Y chromosome as “he” and two X chromosomes as “she,” why do you care? If an employee identifies as female (regardless of whether she was born a male), why do you care what pronoun she uses?

This issue is nothing more than a solution in search of a problem. You are doing way more harm to the mental well-being of your employees if you misgender them than you are doing to other employees by having them rethink how they use pronouns.

Any other answer to this issue is bigotry, period. And, in 2021, we should be well beyond bigotry of any kind.

Posted on June 16, 2020June 29, 2023

Everything you need to know about the LGBTQ discrimination decision in 5 quotes

lgbtq, legal, discrimination, diversity and inclusion

June is Pride Month. If you thought the month’s biggest LGBTQ news was Nickelodeon tweeting that SpongeBob was part of the LGBTQ+ community, you have another thing coming.

On June 15, in Bostock v. Clayton County, the United States Supreme Court clearly, decisively and unequivocally held:

An employer who fires an individual merely for being gay or transgender violates Title VII.

The Bostock majority opinion is 33 pages long. I’ll break it down for you in five key quotes.

1. “Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long­time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.”

2. “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

3. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

4. “There is simply no escaping the role intent plays here: Just as sex is necessarily a but­-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.”

5. “We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a ‘canon of donut holes,’ in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception.… ‘Sexual harassment’ is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Same with ‘motherhood discrimination.’ Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.”

(Bonus wishy-washy quote, from Justice Kavanaugh’s dissent: “Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.”)

There has not been a more significant employment law decision in over 22 years. It might be that long or longer before we see another of this import. Bostock is worthy of celebration because it finally puts to rest any open issue that employers can insidiously and intentionally discriminate against their LGBTQ employees.

June 15 is a day worth celebrating because it will forever be the day that our LBGTQ brothers and sisters finally gained their civil rights at work. It was long overdue.

Employers, take heed. If you are still among the group of businesses that discriminate against LGBTQ employees, you are violating the law. This is no longer an open question. Case closed.

Posted on June 15, 2020June 29, 2023

COVID-19 is not an excuse for age discrimination

workforce management software; hr tech
Consider these headlines:
  • Older Workers Grapple With Risk of Getting Covid-19 on the Job
  • Older Workers Returning to Office Fear Both Virus and Job Loss
  • Age, Pregnancy Discrimination Concerns Raised Ahead of Returns to Worksites
While there’s still a lot we don’t know about COVID-19, one of the things we do know for sure is that is much more greatly impacts people age 65 and above.
Indeed, according to the CDC, 80.6 percent of all coronavirus deaths are in that age bracket. These fatality rates might explain why you might want to protect your older workers by forbidding them to come into work or by placing them on leaves absence.
Here’s the thing, however. Employment discrimination laws hate paternalism. While you might be acting from a place of good intentions to protect your older workers from a potentially deadly exposure of COVID-19 by keeping them away from the workplace, that’s not your choice to make. Only the employee can make that choice.
The EEOC confirmed this guidance in an updated FAQ on COVID-19 and antidiscrimination laws it published late last week.

The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age. However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.

If you force older workers to stay away (even if it’s for their own protection), you are almost certainly committing age discrimination. Their health, their choice. Don’t make it for them.
Posted on February 5, 2020June 29, 2023

Pay equity doesn’t mean paying the same for everyone

pay gap

In 2018, 40 states put through legislation on pay equity practices.

compensation pay equity

There is no shortage of laws that give all people the right to be free from discrimination in compensation, including the Equal Pay Act of 1963, Title VIl of the Civil Rights Act of 1965, the Age Discrimination in Employment Act of 1967, and Title I of the ADA Act of 1990. 

Pay equity is a critical issue for our time. It’s proven to drive profits for companies that support it. So why is it taking legislation to get companies to move towards a more fair and equitable pay system?

Perhaps it’s the misperception that pay equity means treating everyone the same way. But equal doesn’t mean fair. The goal of pay equity is not to treat everyone the same — it’s actually just the opposite. You can treat people fairly and still treat them differently. Factors such as educational background, tenure, skill, quality of work, etc., are all variables that can, and should, be factored into the mix. But, biases based on personal attributes, such as race, gender, age, disability, sexual orientation and more, are variables that should not affect pay.

Pay equity is equal pay for work of equal value. It is also used to describe pay comparisons where there is no unexplained difference pay, and that is not the result of defensible and legitimate factors. Therefore, pay inequity is any difference in pay that is unexplained, or not the result of defensible and legitimate factors.

According to the World Economic Forum Global Gender Gap Report for 2018, which benchmarks 149 countries on their progress toward gender parity, the US ranked No. 51 in the world. We can do better. By comparison, Iceland, Norway and Sweden occupy the top three spots. And, although many countries have achieved important milestones toward gender parity, much still needs to be done.

Pay equity includes total compensation — including overtime pay, bonuses, stock grants, profit sharing and bonus plans, and yes, life insurance, PTO and holiday pay, travel allowances, reimbursement for travel expenses. However, we need to remember all the processes that result in a worker paycheck, including promotions, performance reviews, merit raises, access to the CEO and representation on the leadership team since they all can impact pay differences over time. 

And, while individual organizations have their own formulas for fair and equitable compensation, everyone will benefit by evaluating pay equity in the broader ecosystem. Solving pay equity comes from organizations and their leaders who take ownership of culture, pay programs and total rewards.

The first step is for organizations to be willing to take a look at their own data and processes.  And then be willing to acknowledge it if there are issues around pay equity and work to solve for it. Some may desire to make their process and findings public inside their companies, and then share the plan to monitor it regularly to ensure continued pay equity.   

 Here are three things to get started: 

  1. Analyze average pay of people within an organization to find patterns. Start by role-to-role comparisons, then group to group, the protected classes.
  2. Evaluate the hiring processes to ascertain diversity of teams and the ways in which your process results in a wide range of candidates.
  3. Evaluate the processes which reward, promote, and give feedback to your workforce.  Are they equitable or did the majority of raises go to one gender, racial, or age group?

 To solve for pay equity issues we must look closely at representation. We need more women, people of color, and the LGBTQ community in leadership positions such as on corporate boards. According to Heidrick & Struggles, men hold 93 percent of the CEO positions in U.S. companies. Further research from ISS Analytics found that the percentage of female directors is just 24 percent in the United States.

Total rewards programs include anything that signals to the employee that they are important. The most effective total rewards programs are enacted through the lens of inclusion and take into consideration representation from under represented groups.

It’s also critical to be transparent as to how rewards are given out and how employees can navigate the system. Today, most employees do not have any idea how their pay packages are put together. An organization’s goal is transparency so that people understand how to navigate the culture and achieve their potential at work, which affords them the chance to have a great life.

For example, ACIPCO, an international provider of clean energy technology and services, provides quarterly profit sharing, an on-site health care facility and rewards workers for good tips/suggestions. They also give access to the company plane and yacht when employees need it — and this is not based on hierarchy, everyone gets access. It’s no wonder that they consistently land on Fortune’s 100 Best Companies to Work For and, in an industry where turnover is 80- to 100 percent, they have less than .05 percent a year.

Starbucks offers free Spotify premium and free online classes at Arizona State University and, of course, free coffee. Netflix offers one-year parental leave and Salesforce.com provides commuter benefits, educational reimbursement, refinancing of student debt and 24-hour travel assistance.

Because of the impact on culture, customers, and on the regulatory environment, it’s vitally important that attention to this comes from the C-suite, not just from HR. The critical role for HR is to observe, rebuild systems, make sure the data is accurate and challenge the C-suite and the existing ways of doing things to be the champion of the people experience. 

Here are the takeaways: 

  1. Don’t shy away from the issue of pay equity. Embrace its importance and build processes around the issue rather than waiting for federal or state laws to dictate what you need to do.
  2. Analyze and understand current plans that are in place. If a woman or minority is disadvantaged from the start of employment, that’s a problem that will grow exponentially.
  3. Consistently look at and monitor the process, review it and test it.
  4. Assess gaps from these measurements and make changes accordingly.
  5. Institute transparency between employees and leadership so that you’re setting the narrative and telling your own story rather than allowing social sharing to drive it and derail it.

 In short, paying people fairly is a great idea for many reasons and a great business practice. Don’t be afraid to look at your own pay equity issues. It’s better to be in the know. 

The result is a boost in reputation, the ability to recruit the best talent and to provide employees the ability to maximize their contributions to the organization.

Posted on January 28, 2020June 29, 2023

Creating a healthy workplace culture can increase employee engagement

healthy workplaces employee engagement

Michael O’Malley, co-author of “Organizations for People,” spoke with Workforce to discuss the best (and worst) practices when it comes to structuring a healthy workplace culture to maintain high employee engagement.

Workforce: What inspired “Organizations for People”?

Michael O’Malley: It came about because I had heard so many ugly stories about workplace issues. I wanted to write an anecdote to that, that there were companies out there that were quite different, and people should know about them. I wanted to provide some social science to provide some context. I also wanted to put principles behind what these companies do so people aren’t just trying to mimic the practices, but what they really should be thinking about is what these practices afford these companies to do.

Workforce: What are some best practices when it comes to creating a healthy workplace culture and maintaining high employee engagement?

O’Malley: It starts with the premise that there are institutional rules, like the foundation of the workplace is mutual respect and that that’s enforced so that there are certain ways of behaving that are acceptable and ways that are unacceptable, and that those are widely known. It’s not only a general attitude that you have toward one another, but it carries over to incidences of respect. So, you show up for meetings on time, you respond to people’s questions and you’re helpful — all of those kinds of interpersonal rules that enhance the pleasure of the workplace. It starts with basic rules of respect and values.

The companies that I visited tend to put the employees at the center of their organization and that means that there’s a lot of employee involvement. I can’t say there’s complete transparency, but there is significant transparency on how the company is doing and there’s general openness about news, events and finances and so forth about what’s going on in the company. When decisions are made, employees are fundamentally a part of that decision process.

There are lots of principles, but one other one that I thought was important was they foster this sort of sense of abundance that the employer has their backs and that the processes are fair. If one opportunity, for instance a career advancement, passes them by, they know that there will be other opportunities that will come along because their employer is working with them to find what they’re passionate about, what they want to do and is willing to readily move people across the organization into other roles and will put money into training them. A lot of these companies actually allow people to do internships in other departments or shadow people in other departments. So, rather than have this aggressive competitiveness for things that are in short supply, there is this feeling that through training, growth and ample career opportunity, you can actually take pleasure in other people’s successes because you know that the company is working if you work. I think that this notion of abundance is very important in these companies.

Workforce: Why is this a challenge for many organizations?

O’Malley: I think it’s because a lot of what these companies do seems unbusinesslike and risky from an organizational point of view. I think they are slightly afraid of trying out things that are a little bit different and may seem odd in business settings that people have grown accustomed to. So, these places are oddities, they do things that other places don’t do and I think the challenge is for people to break away from this strict notion of “this is the way it’s done” and to try something that’s a little bit different.

Maybe it’s a fear of looking a little bit foolish by trying something that may not work. I have to say that not everything that these companies do does work, but there is a very high tolerance internally for trying things and if it doesn’t work, then learning from those experiences and modifying their approach. Over time people become acclimated to these different ways and are very patient with one another in trying out things that are new. I think the fear really has to do with outmoded conceptions about what the workplace should look like.

Workforce: What organizations have you come across that you think are doing it right?

O’Malley: A lot of the companies in my sample are private companies, so they’re not really beholden to shareholders. But, Instructure, a technology company in Salt Lake City, was different because they’re a public company that creates learning platforms for higher educational and corporate institutions. They have a nice combination of being a very kind and caring organization, but at the same time they seem to have a very aggressive culture, in a good way — they want to win in the marketplace. They have managed this fine line of maintaining a culture that is genuine and pleasurable and at the same time going about their work without denying themselves the usual life satisfactions with friends and family. I think Instructure does it very well. Finding that balance between market aggressiveness and getting results, but at the same time innovation, is difficult to do but I’ve seen them do it.

Another company that has done it well that comes to mind is Pure Insurance, a premium property casualty insurer outside of New York. They, too, have instilled this sentiment that they want to be the best, they want to do things their way, differently, but at the same time have maintained this sense of belonging and all the things that people want like — belonging, autonomy, growth and self-confidence in their abilities.

EngagementSo, those are two companies that I think people should visit and see how they manage these two worlds. There is this conception that kindness means soft and that isn’t it. Kindness means that you want people to fulfill their potential. So, one of the principles behind all of these companies, but certainly in Pure Insurance and Instructure, is that we want you to live a satisfying life, we want you to do what you want to do and we want you to be as good as you can be. A part of that caring is helping people to improve and become better people.

Workforce: What is the difference in approaches between private and publicly traded companies when it comes to maintaining a healthy workplace culture?

O’Malley: What happens is that, with a public company, people get overwhelmed by the financials — that most of what is communicated is financially-oriented — so a lot of times the rewards really are for revenue growth, profits and so forth.

I think that privately held companies often have the founder-owners who have started the company — not only with a market idea but with an idea about values in what a company should be — and those values carry through on the organization. All the companies that I visited in the book started with founders who had very definite ideas about what companies should do and what they should afford people who work within their companies, so they are very value-rich places to work. I can tell you that the profit isn’t the purpose of these organizations. I think they all have very caring and charismatic leaders who actually wanted the company to be formed with certain principles and values in mind. Sometimes with public companies, the longer they’ve been around, the bigger they get, the further they get from those principles that they had at their inception.

Workforce: How does this differ with a remote workforce? 

O’Malley: TCG, which is an information technology consultancy in Washington, D.C., and Intuitive, which is an engineering consultancy in Huntsville, Alabama, are both consultancies, so a lot of people are out of the office most of the time. First of all, they have recurring staff meetings that bring people back in the home office occasionally, or sometimes they can be online meetings. Another company is Concord Hospitality in Raleigh, North Carolina. They have properties all over the place, so they have routines that people abide by, but they do a lot of things in parallel or take time to do things collectively.

For instance, every month TCG has some kind of charity drive that a committee of employees select, and the company will make a donation to that charity, but everyone will volunteer for a day.

For Concord Hospitality they’ll have charity week at all of their properties where people are dedicating time and resources to charities in their local environment but everybody is doing it the same week, same time throughout their properties. Additionally, every month Concord prints a poster-sized agenda for all of their properties that show everything happening that month. Consistency, routines and doing things in parallel are things that help remote workforces.

Workforce: Do you think organizations should come up with an alternative name for their staff, rather than use the term employee?

O’Malley: Yes. I don’t think any of the places I visited refer to employees as “employees.” They actually view that as a subservient relationship and they want a culture that’s more even, where there’s open, two-way communication. They want people to act independently and “employees” sort of has this dependency that they want to discourage.

The Motley Fool, an investment advisory house, they call each other “fools.” People at Patagonia are “patagoniacs.” I think this does two things; it fosters a bond that I think “employee” doesn’t have, but it also denotes a relationship with each other and the company that is more egalitarian, which is what these companies want.

Workforce: What are some goals that organizations should keep in mind while structuring or restructuring a healthy workplace culture? What would you advise them to do?

O’Malley: When you want to change a culture, you have to look at the people who behave consistently with that culture or who, through feedback, are able to change the way that they approach their behaviors in the workplace. Sometimes I think companies are slow to purge the negative out of the workplace, but I do think you have to have people who are in tune with the culture, and sometimes there are cohorts within organizations that just aren’t. Then, I would probably reestablish things with a new set of values and then actually change the way you hire and socialize, so you change the way you introduce people to the company. I would do that in either case. In either case, the thing you want to communicate from the start is that you have certain performance expectations of people, but you also have certain expectations about how they conduct themselves when they’re in the office. That starts with how you select people. You want not only people who are technically proficient but people who share the values of the organization.

Workforce: What are some common business fables that you have come across that you think are important for organizations to know as untrue?

O’Malley: There’s a fable that being compassionate or empathetic will interfere with people’s business judgment and that somehow they will be led astray by their emotions. To me, that’s a fable because you make wiser and better judgments when you have a sounder perspective of the situation, and that really involves understanding the emotional tenor of the situation. This concept of business objectivity is a falsehood. We would have better, wiser managers if they allowed themselves to entertain a broader range of information, including emotional information.

Posted on January 6, 2020June 29, 2023

Q&A With Jennifer Petriglieri: The Key to Thriving in Love and in Work

workplace couples
Jennifer Petriglieri
Jennifer Petriglieri, author of “Couples That Work.”

Jennifer Petriglieri, author of “Couples That Work,” talked to Workforce about the reality of making a dual-career relationship thrive in both the professional and personal aspect. In her book, she examines three transitions that couples commonly go through, the challenges they face and how to navigate each of these stages of their relationship. She recently spoke with Workforce Editorial Associate Yasmeen Qahwash.

Workforce: Struggling with work-life balance isn’t necessarily a new challenge for couples, so what motivated you to write this book now?

Jennifer Petriglieri: It’s true, couples have been struggling with work-life balance, but the way we’ve looked at work-life balance is really the interface between each individual’s career and their home life. We’ve never looked at how two careers interact together, and certainly, my research in many ways came from my personal experience. I’m in a working couple myself, and facing career transitions, and as every good academic does, when I face a problem, I go to the library. I was looking for research books, anything that could help me really understand how careers fit together, and all I found was the work-life balance literature, which is how do we divide the laundry and manage child care? All these stories of power couples, they seemed to have everything sorted, neither of which were really helpful. The more I looked, the more I realized there’s just nothing out there that looks at the interaction of two people’s careers over their lifetime. So, I thought, if that’s not there, I’m going to write that.

Workforce: What was the methodology for this research?

Petriglieri: Over the course of five years, I followed more than 100 couples across the globe and really tried to understand their lives as they unfolded. These couples were in different career and life stages, so, all the way from late 20s, 30s, 40s, right through to 60s, and even some in their 70s. They were from across the globe, gay, straight, intercultural, some had always lived in the same place, some had moved around — it’s a huge variety. When I started the research, the questions I had were, “What is the arrangement that makes this work? Is there a life structure that if people pursue, they get it right? Is it 50/50 or maybe one person with the lead career? Or maybe we should really stay in one place and not move around?”

Watch the video: Dual-Career Couples and the Balancing Act Between Work and Life

As I got into my research, initially, it was quite confusing. There were couples with all sorts of arrangements that could make it work, and there were couples with exactly the same arrangements who weren’t making it work. That’s when I started to realize, it’s not actually what a couple choose to do, it’s the way in which they go about making their choices, and that really unlocked the findings of the data.

Workforce: How are workplaces accommodating to these couples’ needs and lifestyles, and what are they neglecting?

Couples That WorkPetriglieri: The bottom line is, organizations have a D-minus right now when it comes to thinking through working couples. This really stems from the logic we currently have in our organizations around talent management. When we think and talk about talent, we treat them as people with no strings attached. Now, we may say we recognize you have a personal life outside, but that is not the way almost all our talent management structures and processes are designed in organizations. This creates two main issues for working couples, one is a mobility issue and one is a flexibility issue. The mobility issue is that most career ladders are based on the logic of geographic moves. If you want to get to the top of this organization, you need experience in different geographic markets, perhaps you need experience on different sites of the business. This logic of geographic muse is really baked into the heart of our talent management processes. Now, it’s not that working couples are not mobile, that’s not what I found at all. However, they cannot be mobile in the same way that someone with a stay-at-home spouse can be or someone who is single. This is creating big issues for working couples, but also big issues in organizations. The few organizations who are really thinking this through well now are changing the logic from location to a logic of what skills they experience in the network that people need to develop.

The second issue is flexibility. The problem is that most companies are really looking at this in the wrong way. Most people, when you say flexible working, the image that comes in their mind is of a working mother with small children, and they think part-time working or two days a week at home working. The reality is for the vast majority of working couples, that is not the flexibility they want nor is it the flexibility they need, what they need is what I call marginal flexibility. They don’t actually want to work less hours, they just want the flexibility to work those hours when and where suits them best.

Workforce: Communication seems to be a key factor in navigating couples through their transition stages. Why is this so hard for couples to maintain?

Petriglieri: I think there’s one societal reason, and then one reason within couples. I think as a society, if we think about our careers, we have a logic of investment. We wouldn’t think twice to spend a weekend on a retreat thinking about career direction and career strategizing. And we think about careers in terms of investing effort to figure out where we want to go and what’s important in pursuing it. When we think about relationships, we have the Prince Charming logic — I meet the one, I kiss the frog and we live happily ever after. We may laugh at that, and we know in our heart of hearts it’s completely unrealistic. Yet time and time again, as a society, we think about having these deep conversations as something that should be done when we have an issue in our relationship. We don’t think about relationships through the logic of investing in them. If you ask someone, “What’s your vision for your relationship?” they probably look at you with a blank face, and I’ve done it many times, I can attest to that. But if you ask someone, “What’s the vision for your career?” they could likely tell you something. I think what this does is it puts couples in the mindset of the fairy tale of their relationship, that if something becomes challenging, maybe that’s a problem with our relationship, maybe we’re not meant to be together. No, it’s just about investment — it’s exactly the same view as your careers. The more you invest, the more you get out. This is true in every domain of life, but in our relationships, we tend to, as a society, have left that behind and really forgotten about that. Then for couples, if we’ve not been doing that investment, when we hit that first roadblock, we are like rabbits in the headlights. We think, “Whoa, what’s happening? Is this a problem with our relationship? Maybe we shouldn’t have gone down this path together.” Rather than thinking, “OK, this is the time we need to double down and invest in those conversations.” To be fair, many couples get to those conversations through a crisis point, and that’s OK to get there. The question is once you get there can you then use that insight to develop a habit of keeping working on that stuff together? The reason I use the term investment is because these can be difficult conversations, but they’re also incredibly rewarding conversations. Who doesn’t want to spend time thinking about what really matters to them? Who doesn’t want to spend time with the person they love most in the world? Thinking about, “Where do we want to go in life, what are the things that are important to us?” So, it’s not that these conversations are really painful to have all the time, it’s just that we’re not used to having them. One of my real ambitions for the book, is it changes the way we talk about our relationships, it changes the way we think about working couples and it changes the conversations we have with our partners, but also we have with each other, we have in our organizations, and we have as a society about what it takes to make a relationship and two careers work.

Posted on September 27, 2019September 9, 2019

Jimmy John’s No-Poach Policy Leaves Bad Taste

employment law, labor law, overtime records

Sylas Butler was an employee for a Jimmy John’s sandwiches franchise in Illinois.

After Butler’s hours were reduced, he attempted to transfer to another Jimmy John’s franchise. He discovered he could not transfer because the franchises have contracts with Jimmy John’s corporate that contain “no poach agreements,” — agreements that prohibit franchisees from hiring each other’s employees.

Butler brought a class-action lawsuit on behalf of current and former Jimmy John’s employees, alleging the sandwich company violated the Sherman Antitrust Act, and committed unfair and deceptive business practices under state law. The United States District Court for the Southern District of Illinois held that Butler stated a valid claim under the Sherman Act and state law.

The court rejected Jimmy John’s argument that the no-poach agreements were merely “vertical” restraints on trade between Jimmy John’s corporate and franchisees, and not “horizontal” restraints upon trade between competitors, which are typically illegal.

The effect of the no-poach agreements was horizontal, as under the contract, the franchisees had the ability to enforce the no-poach agreements against each other as third-party beneficiaries. Butler v. Jimmy John’s Franchise, LLC, 331 F. Supp. 3d 786 (S.D. Ill. 2018).

IMPACT: Courts are increasingly skeptical of no-poach agreements that restrict the ability of employees to seek gainful employment.

Posted on September 24, 2019June 29, 2023

Beware the ‘Religious Exemption’ Plan

Jon Hyman The Practical Employer

Warning: This month’s column is not for everyone. If, however, you are offended by what I am about to say, then this is specifically for you.

In August, the Department of Labor’s Office of Federal Contract Compliance Programs, the federal agency that regulates and governs federal contractors and subcontractors, proposed regulations to clarify the scope and application of the religious exemption contained in section 204(c) of Executive Order 11246.

By way of background, Executive Order 11246, signed by President Lyndon B. Johnson in September 1965, “prohibits federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.” It’s been amended over the years, including its 2014 addition of LGBTQ protections to the list of prohibited discrimination.

Section 204(c) specifically exempts from coverage any “government contractor or subcontractor that is a religious corporation, association, educational institution, or society.”

The Trump administration seeks to expand section 204(c) to permit religious organizations with federal contracts to “make employment decisions consistent with their sincerely held religious tenets and beliefs without fear of sanction by the federal government.”

It makes clear that religious organizations can discriminate because of religion, and that religious organizations can require employees’ behavior to meet the organization’s religious rules.

What has people, including me, up in arms about this rule is its proposed change to what qualifies as a “religious organization.” The EEOC has long taken the position that for-profit companies cannot qualify as “religious organizations.” This proposal deviates from that long-standing rule for purposes of the OFCCP. Indeed, according to two senior Labor Department officials, the exemption would apply to “closely held companies acting in accordance with an owner’s religious beliefs.”

In other words, if someone organizes a closely held business for a religious “purpose” and holds itself out to the public as such, it would be exempt from the OFCCP’s anti-discrimination provisions if it operates its business consistent with its religious purpose.

What would this change mean practically? As the American Civil Liberties Union tweeted, “The Department of Labor just proposed a rule that aims to let government contractors fire workers who are LGBTQ, or who are pregnant and unmarried, based on the employers’ religious views.”

This is not “religious freedom.” It’s government-sanctioned discrimination. And it’s just plain wrong.

Private businesses can’t hold religious beliefs. Extending to them these protections based on their owners’ religious beliefs is dangerous. And scary. And abhorrent. We should all be troubled by a rule that permits an employer to opt out of an employment law because of a religious belief.

Religious freedom as an opt-out from the law is a dangerous construct. Our Constitution guarantees freedom of religion. We irreparably damage this important principle when we permit a private business, under the guise of religious freedom, to opt-out, without penalty, from an employment law with which it disagrees or finds offensive.

If you stand with me, and against government-sanctioned discrimination of any kind and in any form, write or call your senator and congressperson and tell them that this proposed rule cannot stand. That as a nation we are better than this. That all private businesses should be held to the same non-discriminatory obligations, regardless of the religious beliefs of their owners.

And, don’t forget about the comment period required by the rule-making process for any proposed regulations. The public gets to chime in, and everyone who opposes this rule should do so.

To conclude, I’ll make this as clear as possible.

Racism is wrong.

Sexism is wrong.

Homophobia is wrong.

If you disagree, you’re a bigot, period.

And, if you hide behind your religion to protect your views, then you’re a hypocritical bigot. There is nothing religious about bigotry, no matter what some might want you to believe.

Posted on September 16, 2019June 29, 2023

Love, Life and Career — Chasing the Trifecta

blog
Stefanie Coleman

As I think about the workplace issues faced by my clients, I can’t help but reflect on my personal life and how there might be some parallels. Supervising a toddler’s play date through the corner of an eye, holding my newborn in one arm while typing this opinion piece with the other and a light bulb switched on for me. To authentically reflect this chapter of my life and the workforce issues that matter most to me right now, I have to blog about flexibility. For me, there is nothing else so top of mind.

Since 2007, I’ve advised firms around the world on all kinds of workforce issues including flexibility. Over the course of my travels, I’ve had world-class mentors, both men and women alike.

Within this group, there is a set of common traits that I strive to emulate. They successfully balance the three important attributes of the trifecta: love, life and career.

If you are career-oriented, balancing the three components of the trifecta is an important condition for living a happy and fulfilled life. And, when done properly, it improves your chances of success in the workplace.

blogIn the United States alone, despite relatively low levels of violent crime and unemployment, coupled with steadily rising income per capita over the last few decades, general happiness within the population is declining. The 2019 World Happiness Report describes this relationship as the Easterlin Paradox, where despite rising standards of living, happiness levels trend inverse. This is attributed to a variety of factors, one of which includes digital advancement — ironically, an urgent business opportunity for most executives.

Another reason for the Easterlin Paradox could be the growing workload faced by many employees in today’s workforce. In fact, HR leaders (particularly in North America) consider unmanageable workloads a key risk to their people experience. In response, several firms have prioritized wellness strategies as a means to remediate. To do so, establishing the link to flexibility is key. Wellness and flexibility cannot be decoupled. They go hand-in-hand.

Good flexibility programs help employees balance the trifecta.

  1. Empower employees to spend meaningful and undistracted time with their loved ones and to invest in starting and/or growing loving relationships.
  2. Give employees adequate opportunities to enjoy their lives by engaging in leisure activities, pursuing personal passions and participating in social and/or community networks.
  3. Create a professional environment where love and life are celebrated and where making investments of time in these two components of the trifecta will enhance an employee’s career, as opposed to harming it.

The equation is pretty simple: Organizations that offer flexibility are more likely to have engaged workers. Engaged workers are more likely to be productive. Productivity leads to heightened levels of business performance. Performance strengthens the employer brand. Top talent likes top brands.

In a job seeker’s market where, at least in the United States, there are more open positions than available talent, firms cannot afford to be inflexible if they want to gain the competitive advantage in a growing war for talent.

But where to start?  Consider these five tips for paving the way to a flexible future:

  1. Establish flexible HR policies. Consider a work from home or casual dress policy. Think about an unlimited or mandated vacation policy and how this might impact well-being. Offer flex-time so employees can adapt their work hours to complement their lifestyle (to honor family, health and spiritual commitments).
  2. Lead by example. Flexible HR policies are meaningless when not adopted. Sometimes, workers do not take advantage of these policies in fear of retribution if leaders do not walk the talk. It’s important that leaders give employees permission to partake by taking advantage of these policies themselves.
  3. Consider diversity. Flexibility means different things to different people. For example, what might flexibility mean to a parent? How about someone transitioning to retirement? A caregiver? Someone with standing religious commitments? A single person?

With more diversity in the workplace than ever before, it’s important to take into account diverse needs when designing flexibility programs. A one-size approach to flexibility could offer an inflexible result.

  1. Invest in technology. If the goal is to free up more time for employees for their personal use, offer state of the art technology that enables efficient work from home and mitigates unnecessary travel to the workplace or to meetings (particularly, where distance/air travel is required).
  2. Monitor well-being and flexibility. To understand the return on investment in flexibility, establish a correlation to well-being metrics and other business outcomes and monitor this over time. Also, review the unintended consequences of “unsupervised” flexibility and put the necessary controls in place. For example, monitor patterns in remote working periodically to make sure people are still coming on-site to work and collaborate when necessary, while taking advantage of the policy when it’s not.

There are many ways to bring more flexibility to the workforce. However, as is sometimes the case with people programs, efforts to enhance flexibility will be futile when leadership support is not in place. While these are best enabled by HR, visible C-suite sponsorship is critical. Remember this before getting into tactics, as getting the leadership team on board first will be a worthy and very important next step.

Posted on September 10, 2019June 29, 2023

The Supposed #MeToo Backlash Is Just Discrimination By Another Name

Jon Hyman The Practical Employer

A recent study suggests that there has been a backlash against the #MeToo movement.

According to  the Harvard Business Review, men are treating their females co-workers differently because of #MeToo.

  • 19 percent of men said they were reluctant to hire attractive women.
  • 21 percent said they were reluctant to hire women for jobs involving close interactions with men.
  • 27 percent said they avoided one-on-one meetings with female colleagues.
This isn’t a #MeToo problem. It’s the problem that #MeToo is trying to fix. Indeed, Harvard Business Review could rewrite its headline to read, “More than one in four men admit to discriminating against female co-workers.”
Can women falsely accuse their male colleagues of sexual harassment? Absolutely … just as they could before the #MeToo movement. And just as men can falsely accuse women, and women each other, and men each other.

False accusations of harassment are not a #MeToo problem. They are systemic in any system that relies on employees to self-police and report misconduct via complaints. The remedy isn’t sexually segregated workplaces. The remedy is thorough and complete investigations of all complaints of harassment, and appropriate punishment for those who are found to have lodged false complaint.

The risk of false harassment complaints is not an excuse for sexual segregation at work. Instead, the risk of sexual segregation is the reason to double down on efforts to root out and end sexual harassment and other sex discrimination.

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