Tag: HR

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A History Lesson for #FixItSHRM Followers

Nearly a decade ago a well-intentioned group of HR leaders banded together to dispute several Society for Human Resource Management policies.

Not just some radical fringe group, the SHRM Members for Transparency questioned issues tarnishing the organization’s integrity, from doubling board members’ annual honoraria to allowing reimbursement for business-class travel to wanting more board members who carried HR credentials.

These veteran HR leaders had the pull to garner media attention as well as that of SHRM’s membership. And that caught SHRM’s attention. For a while, anyway.

Fast-forward to 2019 and we find a loose-knit group of today’s HR professionals taking to social media to dispute SHRM’s ties with the Trump administration and relationships with politically conservative companies, most notably the right-leaning Koch Industries. Like the transparency group, these are issues they believe harm SHRM’s reputation and mission. The objectors call themselves #fixitSHRM.

As we approach SHRM 2019 in mid-June in Las Vegas, #fixitSHRM’s protests aren’t aimed so much at internal SHRM policies as the perception of what SHRM represents.

The #fixitSHRM movement traces back to last August when relative unknown HR practitioner Victorio Milian originated the hashtag. Later that fall he fired off a string of tweets explaining the hashtag’s purpose to protest SHRM CEO Johnny C. Taylor Jr. and SHRM leadership embracing the “white supremacist Republican administration.”

Illustrated by a smiling Taylor — now in his second year as SHRM’s CEO — shaking hands with President Trump, Milian’s tweets continued, saying, “@johnnyctaylorjr shaking the current U.S. President’s hand was the spark that lit the #fixitSHRM movement. @SHRM’s ongoing silence to its members who are (rightfully, in my opinion), angry and disappointed about this alliance continues to keep the fire burning. … In my opinion, @SHRM’s alliance does not represent the ethical leadership that #HRpros should be demonstrating.”

Milian’s movement has garnered plenty of online support. Among many others, @k_boulder tweeted in mid-April, “Altered videos to promote racist tropes fanning the flames of hatred, & direction to underlings to break the law, promising no consequences. Ready to renounce this partnership yet, SHRM? #fixitSHRM”.

<blockquote class=”twitter-tweet”><p lang=”en” dir=”ltr”>Altered videos to promote racist tropes fanning the flames of hatred, &amp; direction to underlings to break the law, promising no consequences. Ready to renounce this partnership yet, SHRM? <a href=”https://twitter.com/hashtag/fixitshrm?src=hash&amp;ref_src=twsrc%5Etfw”>#fixitshrm</a></p>&mdash; Kelly (@k_boulder) <a href=”https://twitter.com/k_boulder/status/1117042317653757952?ref_src=twsrc%5Etfw”>April 13, 2019</a></blockquote> <script async src=”https://platform.twitter.com/widgets.js” charset=”utf-8″></script>

It’s also caught SHRM’s attention to the extent where Taylor doubled down on affirming SHRM’s relationship with the Trump administration as well as SHRM’s affiliation with Koch Industries, according to HRDive.

That doesn’t necessarily bode well for #fixitSHRM’s quest. Still, questioning the motives of SHRM’s relationship with those who do not share or represent their values — and in the larger picture the values HR should practice in every workplace — is inherently a good thing.

I get their frustration. The Trump administration has done most everything you don’t want in a company: constant turmoil and turnover among senior leadership, shunning of D&I, and if recent reports are true, attempting to dismantle the Office of Personnel Management, the federal government’s HR department for civilian employees.

And your HR association is complicit with that? I’d be angry, too.

Taylor’s response though makes it clear that sniping through social media won’t change anything, especially with the 800-pound gorilla known as SHRM. They won’t alter relationships because a social media crusade dislikes their ties with the Trump administration and a financial deal with Koch Industries. I’d also wager that a majority of SHRM members either don’t care, are completely oblivious or actually agree with SHRM’s business dealings.

That means #fixitSHRM’s options to modify SHRM’s operations are limited. But history may hold lessons that could offer them hope for change.

The transparency group had the presence and panache to draw SHRM into two meetings. SHRM then abruptly chose to stop meeting. One transparency group member told Workforce at the time, “Their tactic was delay, delay, delay. We realized that they weren’t going to change.” Disappointing, but if #fixitSHRM is serious they can still push for face time. It’s happened before.

If you can’t get SHRM’s attention in the board room, there’s always the ballot box.

“A SHRM member told me, ‘If you want to change the society, the way you should do it is change the board,’ ” said Mike Losey, a former SHRM president and founding member of the transparency group in a 2011 Workforce interview.

Muster a slate of candidates, continue your barrage on social media and get out the vote. It’s a long shot. And FYI, the transparency group’s candidates never achieved its goal.

History offers a sobering realization that it will take more than a social media campaign to create change. Study the past, #fixitSHRM. Blend it with what you know and perhaps you’ll succeed where Members for Transparency couldn’t.

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You’re Never Too Small to Have an HR Department

Jon Hyman The Practical Employer

Some 43 percent of American employees work for companies with 50 or fewer workers.

I raise this statistic because it is almost a guarantee that many of these small businesses operate without a dedicated HR department or HR personnel.

Earlier this month, the EEOC settled a sexual harassment and retaliation lawsuit it had brought against several IHOP franchises operating in New York and Nevada. The allegations were truly awful, including misbehavior such as unwanted touching of female employees’ buttocks and genitalia, graphic comments about sexual genitalia, invitations to engage in intercourse, and vulgar name calling, perpetrated by both managers and co-workers.

Part of the settlement included a cash payment of $700,000 to the alleged victims. The more interesting part of the Consent Decree requires the companies to create a human resources department (which they were lacking) staffed with professionals knowledgeable about handling and preventing discrimination, harassment, and retaliation.

Within sixty (60) days of the Effective Date, for at least the duration of the Decree, Defendants shall establish and maintain a Human Resources Department with enough staffing to carry out the terms of this Decree. The Human Resources staff shall be comprised of human resources professionals with demonstrated experience in the area of employment law, properly handing complaints of discrimination, harassment, and retaliation, and preventing and correcting such conduct.…

The Human Resources Department shall be easily accessible to Defendants’ employees in person, telephonically, or by email during normal business hours.

That newly created HR department is required to do all of the things you’d expect an HR department to do regarding its EEO responsibilities:

    • Establishing a record-keeping procedure that provides a centralized system of tracking discrimination, harassment and retaliation complaints.
    • Enforcing the employers’ policies, procedures, and practices to foster a workplace free of unlawful discrimination, harassment, and retaliation, including taking measures to ensure that no retaliation is taken against any employee engaging in protected activity.
    • Ensuring proper systems are in place to make certain that proper avenues exist for employees to complain about discrimination, harassment, or retaliation.
    • Receiving and promptly investigating complaints of discrimination, harassment, and retaliation from any employee.
    • Maintaining regular contact with employees who complain of discrimination, harassment, and retaliation.
    • Ensuring appropriate corrective and protective measures are implemented in a timely manner after conducting a thorough harassment investigation.
    • Overseeing the development and implementation of anti-harassment and anti-discrimination training and education.

Your business is never too small for an HR department, and HR should never be an afterthought. In fact, it’s one of the most important positions to fill in any business of any size.

Your people are your most important asset. No matter your product, service, or mission, without employees to make it, provide it, or carry it out, you don’t exist.

Every company needs HR to recruit and hire, to create and monitor policies, to help ensure legal compliance, to implement benefits, and to strategize. Size may vary, but without any dedicated HR professionals, you are telling your employees they don’t matter, which is never the right message to communicate.

And, further, when it leads to harassment complaints being ignored, it could land you at the receiving end of an expensive lawsuit.

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5 Steps to Take When an Employee Sues Your Company

Jon Hyman The Practical Employer

I’ve written a lot over the years about best practices to prevent lawsuits by employees.

The fact remains, though, that no matter how good a company’s HR practices are, and no matter how proactive a company is with its legal compliance, a certain percentage of terminations and other employment decisions will turn into lawsuits. It’s the simple the cost of doing business.

The following are five things a company should be actively thinking about when it receives the inevitable lawsuit:

    1. Relevant documents should be identified and preserved. Employment lawsuits are not as document intensive and some other disputes in which businesses are involved. Nonetheless, the documents are crucial. They provide a roadmap to the justification for the termination or other employment action, and the reasonableness of the employer’s actions. Key documents (personnel files, handbooks, other policies, investigative reports, emails, and other communications) should be gathered and set aside. Also, a litigation hold should be put in place to ensure that no relevant documents are accidentally destroyed.
    2. Under Ohio’s discrimination law, managers and supervisors can be personally liable for their own individual acts of discrimination. Often, they are sued in their individual capacity along with the company. Potential conflicts of interest among any individual defendants and the company must be evaluated very early in the case to ensure that conflicts of interest do no exist. If they do, one attorney cannot represent all defendants. If conflicts are not identified until well into the case, the lawyer may have to withdraw, which could irreparably damage the defense.
    3. Fight the urge to take it personally. When an ex-employee claims discrimination, companies can lose sight of the fact that lawsuits are part of doing business. Employer often shift into attack mode because they are accused of being bigots. There is a huge difference between aggressively defending a case and attacking for the sake of attacking. The former is smart strategy; the latter often leads to greater costs by losing focus. It also risks taking action that could be viewed as retaliatoryand bring further claims. Extra care must be taken when the plaintiff is current employee, as opposed to an ex-employee.
    4. If your company has Employment Practices Liability Insurance, timely file a claim with the insurer. If you have purchased a rider that permits you to select counsel, make sure you enforce that right. If you have not purchased that protection, consider having a candid conversation with the insurance company about the counsel they will choose for you.
    5. Hire experienced employment counsel to defend the claim. Employment law is highly specialized. Retaining counsel that knows that ins and outs of this area of law is the best way to keep costs down as much as possible, while at the same time doing everything possible to aggressively defend the company.

What key steps have I missed? Is there anything your company does when it’s sued that you think others should also be doing? Share you thoughts in the comments below.

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

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Does the FMLA Protect Organ Donation Surgery as a ‘Serious Health Condition?’

Jon Hyman The Practical Employer

Organ donors are living saints. If you are in need of an organ to save your life, and someone is willing to sacrifice a kidney, or a liver segment, or bone marrow, and selflessly accept the pain and inconvenience, you are very, very fortunate.

Sacrificing one’s organ to save another’s life should not also result in sacrificing one’s job.

Earlier this week, the U.S. Department of Labor Wage and Hour Division published Opinion Letter FMLA2018-2-A [pdf], which answers the question, “Does organ-donation surgery can qualify as a ‘serious health condition’ under the FMLA?” (Thanks to Eric Meyer for bringing this to my attention.)

The answer is yes.

The FMLA defines a “serious health condition,” in part, as an “illness, injury, impairment, or physical or mental condition that involves … inpatient care in a hospital, hospice, or residential medical care facility.” “Inpatient care” means as “an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity … or any subsequent treatment in connection with such inpatient care.”

According to the United Network for Organ Sharing, donors usually remain in the hospital four to seven days after the harvesting surgery. Thus, because organ donation commonly requires overnight hospitalization, it qualifies as a serious health condition covered by the FMLA.

Thus, covered employers (those with 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding calendar year) must provide FMLA leave to an eligible employee-donor (someone employed for at least 12 non-consecutive months, who worked 1,250 hours during the 12-month period preceding the start of the requested leave, and who works at a location with 50 or more employees within a 75-mile radius).

What if, however, you are not an FMLA-covered employer? Or the employee-donor is not FMLA eligible? Or they already used up their 12 weeks of FMLA leave? Think twice before you deny requested time off for organ donation.

  • Many states have their own specific organ-donor leave laws that require leave above and beyond the FMLA.
  • The ADA may require that you grant the time off with, or without, the FMLA or state-specific law. The ADA does not require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability. Nevertheless, the ADA mandates that an employer avoid treating an employee differently than other employees because of an association with a person with a disability. Thus, if an employer grants time off to employees for their own surgeries, the ADA will require similar treatment to employees taking time off to donate an organ to one’s association or relation.

Is it inconvenient for an employer to provide time off to any employee? Absolutely. Do you want to be in a position of defending your decision to fire that employee in the face of a leave request for the selfless act donating an organ to save another’s life? Absolutely not. While such a decision is likely illegal, it’s also undoubtedly inhuman. And it’s that inhumanity that will cost your company dearly in front of a judge or a jury.

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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7 Tips on How to Handle Cyber Sabotage and Other Insider Tech Threats

Jon Hyman The Practical Employer

Your employees are your company’s weakest link, and therefore, your greatest threat to suffering a cyber-attack and resulting data breach.

While employee negligence (that is, employees not knowing or understanding how their actions risk your company’s data security) remains the biggest cyber risk, another is growing and also demands your attention—the malicious insider.

According to one recent report, malicious insiders are responsible for 27 percent of  all cybercrime. Over at her Employment & Labor Insider Blog, Robin Shea suggests that one recent workplace embarrassment for an employer was the result of internal cyber-vandalism, and not external hacking.

Dark Reading reports on a recent survey, entitled, “Monetizing the Insider: The Growing Symbiosis of Insiders and the Dark Web.”

“Recruitment of insiders is increasing, and the use of the dark web is the current methodology that malicious actors are using to find insiders,” explains researcher Tim Condello, technical account manager and security researcher at RedOwl.

Cybercriminals recruit with the goal of finding insiders to steal data, make illegal trades, or otherwise generate profit. Advanced threat actors look for insiders to place malware within a business’ perimeter security. …

There are three types of people who fall into the “insider” category, says Condello: negligent employees who don’t practice good cyber hygiene, disgruntled employees with ill will, and malicious employees who join organizations with the intent to defraud them.

What is a company to do? I’ve previously discussed how to protect against the negligent employees who don’t practice good cyber hygiene—training, training, and more cyber-training.

No amount of training, however, will stop a disgruntled employee with ill intent, or a malicious employee who joins to do harm.

These latter two categories need more specialized attention—an insider threat program. The Wall Street Journal explains:

Companies are increasingly building out cyber programs to protect themselves from their own employees.… Businesses … are taking advantage of systems … to find internal users who are accidentally exposing their company to hackers or malicious insiders attacking the company. These “systems,” however, can prove costly, especially for the small-business owner. While investment in a technological solution is one way to tackle this serious problem, it’s not the only way. Indeed, there is lots any company, of any size, with any amount of resources, can do to develop an insider threat program.

Aside from the expense of costly monitoring programs, what types of issues should employers include in an insider threat program? Here are seven suggestions:

    1. Heightened monitoring of high-risk employees, such as those who previously violated IT policies, those who seek access to non-job-related business information, and those who are, or are likely to be, disgruntled (i.e., employees who express job dissatisfaction, who are on a performance improvement plan, or who are pending termination).
    2. Deterrence controls, such as data loss prevention, data encryption, access management, endpoint security, mobile security, and cloud security.
    3. Detection controls, such as intrusion detection and prevention, log management, security information and event management, and predictive analytics.
    4. Inventories and audits for computers, mobile devices, and removable media (i.e., USB and external hard drives), both during employment and post-employment.
    5. Policies and programs that promote the resolution of employee grievances and protect whistleblowers.
    6. Pre-employment background checks to help screen out potential problem employees before they become problems.
    7. Termination processes that removes access as early as possible for a terminated employee.

No company can make itself bulletproof from a cyber-attack. Indeed, for all businesses, data breaches are a when issue, not an if issue. However, ignoring the serious threat insiders pose to your company’s cyber security will only serve to accelerate the when.

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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Old School Diversity Doesn’t Work; New School Diversity Does

If 2016 brought us anything, it’s the death of the status quo. If 2016 has taught us anything, it’s that those of us who have a progressive vision for the workplace — and humanity in general — must change our tactics. Evolutionary leaders committed to increasing diversity, equity and inclusiveness in American workplaces aren’t exempt. Nothing less than a safe, abundant and mutually prosperous future is at stake.WF_WebSite_BlogHeaders-12

One tactic that needs to change is how we think, speak, and act around diversity and inclusiveness. Voices that have been emboldened by President-elect Donald Trump, plus a series of articles published this summer in the Harvard Business Review, are the most recent jury that’s delivered a landmark verdict: “Old school” diversity approaches don’t work.

“Old School” Diversity doesn’t work because it:

  • Focuses primarily on what I call “the Skittles Approach” — increasing the numbers of underrepresented groups (especially people of color) to create a more colorful rainbow.
  • Defines no clear, meaningful goals or specific outcomes (beyond changing racial or gender demographics).
  • Conducts its main activities around compliance with various laws, regulations and industry- specific requirements.
  • Outside of compliance, is mainly motivated by social justice values, or a desire to look good or “do the right thing.”
  • Can have a “charity” feel since it’s oriented toward helping members of certain groups — usually historically marginalized groups like women, people of color, LGBT and/or people with disabilities.
  • Includes an often unspoken belief that investing in diversity and inclusion means sacrificing quality and excellence.
  • Promotes initiatives owned solely by one area or department (typically HR or a dedicated diversity office).
  • Promotes initiatives with no accountability and limited power to effect meaningful change.
  • Pays little to no attention to developing leaders or creating a great culture.
  • Involves training that provides awareness and knowledge, but no skill building or clear, actionable takeaways.
  • Explores the cultural or intercultural dynamics of human difference devoid of power relationships.

However, “new school” diversity does work, because it:

  • Focuses on attracting more members of strategic underrepresented groups plus creating an inclusive culture where everyone can bring their brilliance and excellence to work (and without which diversity alone can impede progress and diminish results).
  • Defines measurable outcomes that are mission critical.
  • Conducts its main activities around reducing the unintended effects of individual and systemic biases; developing leaders’ ability to make effective, equitable decisions; and creating an inclusive culture where brilliance and excellence thrive.
  • Is mainly motivated by meaningful, high-stakes business goals which either solve an existing pressing problem or take the organization from good to great.
  • Recognizes and demonstrates that a diverse, inclusive environment includes and benefits everyone.
  • Understands and leverages the extensive research showing diversity plus inclusion increase quality and excellence.
  • Requires that diversity and inclusiveness results be owned by senior leaders in all areas including finance.
  • Holds all leaders and employees accountable for diversity results and inclusive behaviors.
  • Views developing effective leaders and creating a great culture as top priorities for senior leaders, and acted on as integral to the organization’s success.
  • Involves training that provides skill building and clear, actionable takeaways that are reinforced and hardwired in daily operations.
  • Explores and navigates the cultural and intercultural dynamics of human difference within the context of unequal power relationships in the organization and society at large

Management guru W. Edwards Deming once said, “Learning is not compulsory. Neither is survival.” To survive we must adapt to new information and new realities.

Just as it’s clear (in dozens of studies) that New School Diversity works, it’s clear the Old School way has outlived its usefulness, and we must evolve. Courageous leaders and visionary organizations are already evolving, and leveraging the brilliance and excellence unleashed by a commitment to New School Diversity.

Are you ready to join them? Share your success stories and questions below, and let me know how I can help you get there! #NewSchoolDandI.

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

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Some Workplace Haiku to Start Your Week

Jon Hyman The Practical Employer

Lately, the news has been so grim, with

Office thermostat
Why do you hate me so much?
I’m freakin’ freezing
My biggest weakness
Why would you even ask that?
Nobody’s perfect
Used corporate card
To buy beer and PokĂŠmon
Does that count as fraud?
Tweeted those pictures
Interview begins at 2
Can I delete them?

Reading those inspired me to write a few of my own.

Workplace harassment
HR ignored her for months
We have to pay, big!
Email from PayPal
Time to update my account
What is ransomware?
HR’s big headache?
An hour here, hour there
Intermittent leave
Exempt / non-exempt?
We owe unpaid overtime
Class lawsuit; oh crap!
How about you? Share your own workplace haiku in the comments below, or on Twitter, with the hashtag #haikuatwork.
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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Illinois, Texas A&M University and Wisconsin Top HR Master’s Programs List

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The University of Illinois at Urbana-Champaign was recognized as the top master’s in HR program by College Choice. Photo credits: UI Public Affairs

The University of Illinois at Urbana-Champaign, Texas A&M University and the University of Wisconsin top the 2016 ranking for the Best Master’s in Human Resources Degree Programs, according to College Choice, which provides college and university rankings and resources.

“[Human resources managers] plan, manage, and enforce the policies and rules that govern a given organization. They are also responsible for recruiting, interviewing, hiring, and, yes, firing too,” said Christian Amondson, managing editor of Eugene, Oregon-based College Choice, in a statement. “That’s why it’s so important for HR professionals to get an education that prepares them to help manage a company’s employees with compassion and a strategy.”

College Choice stated that it curated its 2016 ranking for Best Master’s in Human Resources Degree Programs by collecting information from individual school websites, other ranking sites, and the U.S. News and World Report site.

The rankings, listed alphabetically, are as follows:

Baruch College, New York City

California State University Long Beach, Long Beach, California

Case Western Reserve University, Cleveland

Cornell University, Ithaca, New York

DePaul University, Chicago,

Florida International University, Miami

Howard University, Washington, D.C.

La Roche College, Pittsburgh

Loyola Marymount University, Los Angeles

Loyola University Chicago, Chicago

Manhattanville College, Purchase, New York

Marquette University, Milwaukee

Mercyhurst University, Erie, Pennsylvania

Michigan State University, East Lansing, Michigan

Northwestern University, Evanston, Illinois

Ohio State University, Columbus, Ohio

Pace University, New York City

Pepperdine University, Malibu, California

Purdue University, West Lafayette, Indiana

St. Louis University, St. Louis

Stanford University, Stanford, California

Temple University, Philadelphia

Texas A&M University, College Station, Texas

Towson University, Towson, Maryland

University of Chicago, Chicago

University of Houston, Houston

University of Illinois at Urbana-Champaign, Champaign, Illinois

University of Louisville, Louisville, Kentucky

University of Maryland, College Park, Maryland

University of Minnesota, St. Paul, Minnesota

University of Pittsburgh, Pittsburgh, Pennsylvania

University of Rhode Island, Kingston, Rhode Island

University of South Carolina, Columbia, South Carolina

University of Tennessee, Knoxville, Tennessee

University of Texas at Arlington, Arlington, Texas

University of Toledo, Toledo, Ohio

University of Wisconsin, Madison, Wisconsin

Utah State University, Logan, Utah

Vanderbilt University, Nashville

Villanova University, Villanova, Pennsylvania

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NLRB Is Now Basically Creating Unfair Labor Practices Out of Thin Air

Jon Hyman The Practical Employer

Those that have been readers for awhile know of my dislike of the NLRB’s expansion of its doctrine of protected concerted activity (e.g., here and here).

The latest on the NLRB’s hit list: employee mis-classifications. The NLRB has concluded that an employer has committed an unfair labor practice and violated an employee’s section 7 rights by (mis)classifying its employees as independent contractors. Or so was the board’s conclusion in its recently published General Counsel Advice Memorandum [pdf].WF_WebSite_BlogHeaders-11

The case involved drivers for a drayage company, whom the company classified as independent contractors. The company opposed a union’s efforts to organize the drivers on the ground that they were not employees covered by the National Labor Relations Act. Even after the NLRB determined that the purported contractors were employees subject to organizing, the employer still refused to re-classify them as employees.

In response, the NLRB Office of General Counsel concluded “that the Region should issue a Section 8(a)(1) complaint alleging that the Employer’s misclassification of its employees as independent contractors interfered with and restrained employees in the exercise of their Section 7 rights.” On the one hand, the GC’s decision makes some sense. If the NLRB determines that you have intentionally mis-classified employees with the specific intent of avoiding a union, then you have likely interfered with the rights of those employees to organize.

Yet, the GC’s decision goes well beyond the facts of the case, and concludes that even a “preemptive strike” in advance of any organizing campaign violates employees’ section 7 rights.

The Employer’s misclassification suppresses future Section 7 activity by imparting to its employees that they do not possess Section 7 rights in the first place. The Employer’s misclassification works as a preemptive strike, to chill its employees from exercising their rights under the Act during a period of critical importance to its employees—the Union’s organizing campaign.

Employers, thanks to the NLRB, your risk of employee mis-classifications (which is already sky high) just increased. Get ready to start fighting a two-front war against your independent contractors. Savvy plaintiffs’ lawyers simultaneously will file the FLSA lawsuit in federal court and, based on this Advice Memorandum, the unfair labor practice charge with the NLRB. Since an NLRB charge typically moves faster than a federal wage/hour lawsuit, expect the (unfavorable) Board decision first, and expect your contractors to argue the conclusive and binding effect of that decision in the FLSA lawsuit.

The NLRB is wading into uncharted and dangerous waters — creating an unfair labor practice out an alleged wage/hour violation. Moving forward, expect the employee friendly NLRB, and not federal judges, to decide whether you have classified your workers properly. This development is decidedly not to your benefit.

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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Benchmarking: The Compass to Navigate the Future of Work

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By integrating benchmarks into everyday tasks, HR leaders can make informed decisions based on data-driven HCM metrics. Illustration by Jakub JirsĂĄk

Providing the right mix of competitive rewards to attract and retain talented employees can be like shooting arrows in the dark: You try to take aim but can easily miss your target.

Unfortunately, this metaphor applies to many of today’s HR practitioners, who still rely on educated guesses and trial-and-error methods to build and engage a high-performing workforce. Benchmarking can improve your HR aim. It can be a compass that shows business leaders how their company’s offerings — to the market and to employees — compare to competitors and the industry.

Timely benchmarks have historically been hard to find and limited in scope due to practical and technological limitations. As a result, HR leaders have underutilized benchmarks to guide decision-making. Fortunately, that’s changing. With the rise of big data and HR analytical tools that transform information into actionable insights, benchmarking now is a strategic asset for workforce management.

Big data is improving benchmarking by providing more relevant, recent and reliable information that can help HR professionals better understand their organization’s competitive positioning externally. It also can help them compare metrics among different business units and teams internally. Before advancements in data aggregation, benchmarking typically involved fielding surveys that could take months to plan, execute and validate.

Today, data aggregation involves massive volumes of data that — when analyzed — support a broader spectrum of human capital management activities. Using data science can make it cheaper and easier to generate and use benchmark data. As a result, HR leaders have greater access to high-quality benchmarking data they can use to guide their team’s daily work.

One increasingly popular use of benchmarks: using it to address high employee turnover rates. For example, analysis of workforce data may reveal that a company is experiencing high turnover rates for certain functions and that the root cause for many may be their search for higher compensation.

Here’s the good news: New data visualization tools and enhanced graphic user experiences make benchmarks more approachable and intuitive to the average HR user than ever before. With simple data visuals, HR practitioners can more accurately interpret the results of benchmark analysis.

A merger or acquisition is a prime example of how workforce management benchmarks can impact cross-functional business activities and give an employer a competitive advantage. Given that employee compensation is one of the biggest expenses for most organizations, benchmarks can provide clarity on what competitive compensation levels look like for hiring and paying employees in new or unfamiliar markets. HR leaders can use those benchmarks to rationalize and standardize compensation strategies for the newly combined company.

Beyond compensation, mergers and acquisitions also open up other opportunities to leverage benchmarks as strategic guides. Benchmarks can help establish criteria, such as rates of high absenteeism, to help identify employees who may leave a company after the transition. In addition, HR leaders can leverage benchmarks to compare a company’s post-merger turnover rate with competitors to gain insights that will help refine their talent retention strategies. Another example is ratios of support staff to lines of business and spans of control benchmarks that can help optimize a post-merger business structure. These types of benchmarks provide guides on how the organization can lead sizing efforts.

Business leaders look to HR to deliver strategic insights that assess workforce conditions and inform forward planning. By integrating benchmarks into everyday tasks, HR leaders can make informed decisions based on data-driven HCM metrics. In an evolving and competitive recruitment market, benchmarks can provide important guides to help companies seek and build a high-performing workforce that will drive long-term growth.

Modern data science and HR analytics tools can help companies take more accurate aim at the available talent pool and, potentially, increase the number of times they hit the target.

David Turetsky is vice president of ADP DataCloud product management.