Editor’s note: This post contains extremely graphic language in the context of the case described here.
“Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!!”
“Hey, did you bring enough KFC for everyone?” “Go back to Africa, you bunch of fucking losers.” “Hey anybody smell that? I smell fried chicken and watermelon.”
You’d think that if any of your employees lobbed any of these bombs at a supervisor or coworker, you’d have no legal issue if you fired them. And you’d be right … usually.
Except, in the first example, the employee ended his obscene tirade with, “Vote YES for the UNION!!!!!!!”
The latter example was directed by striking workers walking a picket line to African-American replacement workers crossing that picket line. According to the National Labor Relations Board, the employees’ rights to engage in protected concerted activity trumps all.
The NLRB, however, might be changing its mind on these rules. Last week, the agency invited briefs on the issue of how far the law should go to protect profane or obscene workplace statements.
The National Labor Relations Board requests briefing on whether the Board should reconsider its standards for profane outbursts and offensive statements of a racial or sexual nature. In a notice issued today, the Board seeks public input on whether to adhere to, modify, or overrule the standard applied in previous cases in which extremely profane or racially offensive language was judged not to lose the protection of the National Labor Relations Act (NLRA).
In the specific case at issue, a union committeeperson, while arguing about employee cross-training, told a supervisor that he did not “give a fuck about [his] cross-training” and that he could “shove it up [his] fucking ass.”
Specifically, the board is looking for input on five issues:
Under what circumstances should profane language or sexually or racially offensive speech lose the protection of the Act?
How much leeway should employees engaged in section 7 activity be given, when their language if profane or otherwise offensive to others on the basis of race or sex?
Should the Board continue to consider the norms of the workplace, particularly whether profanity is commonplace and tolerated, in judging the legality of these profane or obscene outbursts?
To what extent, if any, should the Board continue to consider context — e.g., picket-line setting — when determining whether racially or sexually offensive language loses the Act’s protection?
What relevance should the Board accord to anti-discrimination laws such as Title VII in determining whether an employee’s statements lose the protection of the Act?
I find all of the examples above to be abhorrent. The NLRB’s current rules require employers to suborn the worst degree of insubordination, or permit horrific racial or sexual harassment, all in the name of “protecting” employees section 7 rights under the NLRA.
These rules must change, and I am very optimistic that the board will craft a much fairer and equitable rule on this issue.
Mani Mueller is one of the millions of Americans who has cared for an elderly parent or children while working a full-time job. Photo by Paulius Musteikis
When Mani Mueller landed a plum job at a biotech firm in Wisconsin in 2013 she brought her parents from Pennsylvania to help care for her two young daughters while she found her footing at work.
The timing was perfect. Her mother had just retired and her father, who suffered from Parkinson’s disease, was doing well and looked forward to spending time with his granddaughters. But what promised to be a dream scenario fell apart within a few months as her father’s condition declined and her mom couldn’t keep up with his care.
Parkinson’s is a progressive nervous system disorder that affects movement, and her father began falling frequently, requiring constant supervision. Soon, Mueller was tackling not only the demands of a new job, but also working a second shift as her father’s primary caregiver and power of attorney, shuttling him to doctor’s appointments, researching treatments, and learning to navigate the Medicare and Medicaid systems. Since her father, a Laotian immigrant, spoke little English she also became his translator.
At 37, Mueller had joined the ranks of 44 million adults in the United States who provide unpaid care for a loved one who needs support, according to AARP. She also became a member of the “sandwich generation,” caring for both a parent and children. Like many caregivers in the workplace, she never told her employer for fear of damaging her career. Instead, she used her vacation and personal days to meet the demands of caregiving.
In January 2018, five years after she placed her father in a nursing home, her company, Promega, introduced a caregiver leave benefit that provides employees with an additional two weeks of paid time off a year to care for a sick parent, spouse or child, or to welcome a new child. But even then Mueller was reluctant to come forward.
Mani Mueller was the primary caregiver for her father. Photo courtesy of Mani Mueller.
“I didn’t want to advertise that I was dealing with all of this or put on paper that my dad has this condition and my kids have that condition,” said Mueller, now 43 and a manager in supplier quality at Fitchburg, Wisconsin-based Promega. “I keep everything to myself. I thought sharing this information would negatively impact my career. I’m very quiet and private, but internally, I thought ‘How much more can I deal with?’ I was exhausted and stressed out.”
Mueller’s story illustrates the dilemmas faced by many caregivers who must choose between what’s best for their families and what’s best for their careers. It also sheds light on the complexities of caregiving in a time of great demographic change. Older people will outnumber children for the first time in U.S. history by 2030, traditional family structures are changing with families getting smaller and more geographically dispersed, and thanks to medical advances people are living longer with disabilities and chronic conditions.
This is resulting in a caregiving crisis that many employers are failing to acknowledge or understand, according to a Harvard Business School studyreleased in January. “The Caring Company” report highlights a disconnect between the kinds of supports caregivers in the workplace need and what most companies provide.
Fear Factor
One reason that employers don’t understand the impact of caregiving on their businesses is that many employees are afraid to tell them, according to Linda Roundtree, an HR consultant who specializes in the aging workforce.
“When people don’t feel free to come forward, they have to make an excuse for why things happen or why they’re distracted at work,” she said. “There’s fear about hurting their careers. You see that fear when women are afraid to disclose that they’re pregnant.”
Only 28 percent of employees who care for a loved one were willing to admit that their family responsibilities harmed their careers, according to the Harvard Business School report. Around half of caregivers surveyed were afraid of being overlooked for challenging assignments, or missing out on salary increases or bonuses. And while 80 percent of employees admit that caregiving has affected their productivity, less than one-fourth of employers said that caregiving influences employee performance.
Mueller said that if Promega had a caregiving benefit when she started there it’s unlikely that she would have taken it. But by 2018 Mueller had been a manager for two years and was confident in her position. So, when her dad’s condition worsened again that May and her daughter was diagnosed with a kidney infection she signed up for time off under the company’s caregiver leave policy. Her father died the following November.
“Exceptional caregiving” is the term that Roundtree uses to describe the new realities for caregivers who are caring for loved ones with a host of cognitive impairments, physical disabilities and chronic conditions.
“There is a huge chunk of the workforce that will be taking care of a child with special health care needs or an elderly parent,” said Roundtree, who co-authored a 2018 paperon the changing nature of caregiving for Boston College Center for Work and Family. “Today even young, single people understand that complex things will happen either to themselves or to a partner or spouse and they need employers that know how to support them.”
The Young Caregivers
While the typical caregiver is a white woman in her late 50s, about one-fourth of all caregivers are between the ages of 18 and 29, according to AARP. They are also the fastest growing and most diverse demographic in the workplace. Employers need to understand that caregiving affects workers of all ages, Roundtree said.
The scope of the problem came as a surprise to executives at Promega when the company surveyed its own workforce in 2017 to better understand the caregiving needs of its employees.
It looked at all kinds of situations from parents of newborns to parents of children with special needs to children caring for parents and adults caring for a spouse, according to Promega benefits manager Diana Clark. She said that everyone was surprised by the variety and intensity of the demands on employee caregivers. They discovered a hidden population of employees who were spending about 29 hours a week on caregiving duties, basically working a second unpaid shift.
Also a surprise was the average age of their caregivers: 33 years old.
Promega Benefits Manager Diana Clark
“I would have thought three years ago that average caregiver is 55 or 60 years old and nearly retired, but it’s a parent with kids and an elderly parent who is struggling with cancer or some other health condition,” Clark said.
“When you talk to people in those roles they will tell you that’s just what they do and that it’s not a burden. They’ll say that ‘dad just needs me to get groceries, or he can’t drive, or I have to make sure that mom takes her meds.’ There so many tactile details involved that we couldn’t help but see the strain.”
This led Promega to launch caregiver leave benefits in January 2018 that provide employees with an additional two weeks of paid time off a year to care for a sick parent, spouse or child, or to welcome a new child. The benefit can be used in daily increments or all at once. So far, 120 employees, or 12 percent of Promega’s 1,400 employees, including subsidiaries, have used the benefit.
Employees Open Up
Clark said that the program has taken on a life of its own with employees coming forward to share their stories and even launching their own initiative called Circle of Caring. The initiative connects caregivers and employee volunteers willing to help with meals, shopping, lawn care, transportation and other errands. One group of volunteers even planted a garden for an employee who was an avid gardener but was unable to use his arm after a surgery.
This year, the company also began offering free onsite psychological counseling one day a week for caregivers and plans to offer health care navigation services, among other supports for caregivers, such as bereavement support and financial counseling.
Deb Notstad, right, cares for her son Adam, who is physically and developmentally disabled. Photo courtesy of Deb Notstad.
Deb Notstad, 57, a complaint investigations specialist at Promega, is grateful for the benefits, even though they came too late to help her. In 2016 her elderly mother was dying and she was caring for her 28-year-old son Adam, who is physically and developmentally disabled. Notstad, a single mother, is also the legal guardian for her brother who is a critical diabetic and is developmentally disabled. While she thinks that two weeks of paid leave is great, it’s not nearly enough for those with complex caregiving needs.
“When they introduced the benefit I had already spent weeks in the hospital with my son,” she said. “My first reaction was, ‘Are you kidding? This is a drop in the bucket.’ But I don’t know too many businesses that offer something like this.”
While a growing number of companies including Starbucks, Cigna, Best Buy and Microsoft offer caregiver supports such as extended paid leave, long-term care insurance for parents and grandparents, and counseling, the vast majority do not offer benefits that are valued by caregivers, according to the Harvard Business School study.
The top reasons that caregivers quit their jobs is the high cost of paid help, the difficulty in finding trustworthy support, and the inability to manage the demands of work and home — all areas where employers could provide support,the study found.
Those that fail to address the problem will pay the price in “hidden costs” such as turnover, loss of institutional knowledge, absenteeism and other factors that are difficult to quantify, according to the study.
Katie Boer cares for her mother who suffers from dementia. Photos courtesy of Katie Boer.
Katie Boer, 31, never thought that two years after landing her dream job as a broadcast journalist she would be quitting to look after her 71-year-old mother. In 2016, shortly after she began working at a Las Vegas television station, Boer’s mother, who lives in Seattle, was diagnosed with Lewy body dementia, which can cause hallucinations and Parkinson’s-like symptoms such as body rigidity, tremors and balance problems.
At first, Boer handled things by phone and took paid time off for regular trips to Seattle, but as her mother’s condition worsened the situation became unmanageable. Her mother would call her at work several times a day confused and agitated, often minutes before she went on the air. Eventually, Boer installed a video camera in her mom’s apartment to keep a closer eye on her. But when she saw her mom lying on the floor in the middle of the night crying out Boer’s name for hours, she reached a breaking point.
“I’d be lying in bed watching her not sleeping with tears falling sideways down my cheeks,” she said.
“I’d cry all night and go to the bathroom and throw up. Even though I had a dream job I felt like I was selfish for not being there. So I sacrificed my job and moved to Seattle.”
For employees at smaller companies without caregiving supports or benefits like flex time or paid time off the burden of caregiving can be especially crushing.
Amanda Smith, 34, works at a small nonprofit arts foundation on the East Coast that is not required to provide leave under the Family and Medical Leave Act. With a toddler who has cerebral palsy along with other disabilities and requires round-the-clock care, managing a career is an enormous challenge.
While her boss was initially accommodating, allowing her to work from home one day a week, he has become impatient with the lack of flexibility in her schedule, she said.
“He’d like me to come in without any warning but our lives our very, very choreographed because of all the doctor’s appointments, services and nursing care that my son needs,” she said. “We can’t just call a babysitter. My husband would have to call in sick or my mother-in-law would need to come because she’s the only one besides us who knows how to take care of him. I don’t think employers really understand how complicated caring for a child with a disability can be.”
But many are trying, according to LuAnn Heinen, vice president at the National Business Group on Health, a coalition of large employers.
“It’s definitely on their radar,” she said. “We did a survey in 2017 and 88 percent of employers think caregiving will be a big issue over the next few years. Paid leave is important but we know that it won’t solve the problem if you’re caring for someone over a number of years. There must be more supports like flexible work arrangements, health care navigation, and services to help employees find caregiving services. Employers realize this.”
For those that fail to address the needs of caregivers, Clark warned that companies like Promega will be happy to hire their employees away.
“Unemployment is low and there are great people out there who are not getting their needs met and will want to work for an employer who recognizes them as a whole person,” she said. “You lose so many aspects of what that person can bring to the table when they are trying to take care of their families and are not supported.”
I was on the phone with one of my favorite colleagues debriefing a recent client engagement.
We’d done a series of focus groups for an organizational assessment and we’d gotten some fantastic data and comments.
“They’re such a great client!” my colleague exclaimed. I enthusiastically agreed.
That exchange got me thinking about great clients. What makes them “great” to work with? And what are the consequences when a client isn’t “great”?
Consultants are here to serve clients, yet we are most effective when clients help us help them. Being a “great client” doesn’t just matter when working with diversity consultants — it matters in engaging any external partner for leadership development, organizational strategy or change management. However, sometimes those leaders engaging diversity and inclusion consultants are less experienced in how to work with external professionals.
What makes clients great to work with — and more successful afterwards as a result — are the following three behaviors:
Trust the consultant. Clients who are unable or unwilling to be fully transparent inhibit the consultant’s ability to serve them and do an excellent job. Even pre-contract intake conversations are confidential, and an ethical consultant will ensure their client’s data, documents and personal disclosures are kept private. If you’re wary, have the consultant sign a non-disclosure agreement, but just as full honesty with your physician is critical to receiving the best health care, full transparency with your D&I consultant is critical to properly diagnosing your problem and getting meaningful results. Avoid keeping secrets from your diversity consultant even if they portray your organization in a less-than-flattering light.
Work at least as hard as the consultant. The consultant will eventually leave, and you will stay behind. Ultimately, you are the owner of the problem you have hired the consultant to help solve. Just as it’s up to you to follow your physician’s advice and change your behaviors to improve your health, you are responsible for implementing solutions and creating results that matter for your organization. Involve the right people in meetings with the consulting team, and enlist the right internal people to take on tasks. Follow up on action items by the agreed-upon deadlines. Communicate changes in priorities or key personnel to the consultant, as well as crises that arise during the project. Make it easy for the consultant to do their job well by executing critical functions they can’t, such as internal communications, scheduling and on-site logistics. It’s a waste of time, talent and budget to not ensure proper building access, fill focus groups, or brief stakeholders on the project goals.
Follow the consultant’s advice. Great clients hire excellent consultants because they need expertise they don’t have in-house. The fields of diversity and inclusion, organizational development, coaching and others require years of study and practice. When a consultant uses their expertise to provide recommendations, great clients often ask for clarification or provide necessary pushback. But just as a patient may not get good outcomes if they ignore a health practitioner’s advice, a client who does not heed their consultant’s expertise will not get the best results. Just as in health care, second opinions and questions are welcome, but great clients don’t waste their budget on consultants they plan to ignore or use as a scapegoat.
In short, great clients treat D&I consultants like healers, not magicians. Just like other types of healers, we partner with clients to understand their situation and context, diagnose the problem, co-create a treatment plan and provide support. We can’t do the work for the client just as the physician can’t heal the patient. The patient’s body does that with the right intervention and support. We can’t wave a wand and make the problem vanish, and we cannot fix it for you. Great clients get it, which is one of the reasons they can be so successful after working with great consultants.
If you haven’t started your own super-successful HR technology company it’s not too late.
Venture capitalists’ love affair with HR tech firms is on track to break records as they dole out millions of dollars to entrepreneurs who promise to transform the human resources landscape. According to HRWins by LaRocque LLC, venture firms invested $1.741 billion in HR tech companies in the first quarter of 2019 and $1.448 billion in the second quarter.
The first quarter alone was “significantly more than any quarter in 2018, and $677 million more than we tracked in all of 2017,” according to LaRocque. And Jason Corsello, founder and general partner of Acadian Ventures, an early-stage venture capital firm specializing in the future of work, predicts that HR tech deals will hit $5 billion in 2019.
The continued investment interest in this space makes sense. Despite years of VC investment into promising HR tech companies, there are still a lot of problems that current vendors haven’t solved, like:
How can we recruit strong candidates when unemployment rates are so low?
Why does our candidate experience still lag despite our cool new interactive recruiting page, YouTube recruiting channel and automated email response tools?
Can I hire freelancers instead of full-time staff, and where do I find them?
How are we supposed to reskill an entire workforce when we don’t know what skills they are going to need?
These are big, difficult questions and VCs are eager to support entrepreneurs who claim to have the answers particularly because the market is strong, said David Mallon, chief analyst at Bersin, Deloitte Consulting LLP. “Companies have set aside healthy budgets for the right solution and VCs sense that there is money to be spent.”
TA and Training Lead the Pack
This year’s deals are tipping heavily toward recruiting technology firms. “Talent acquisition is a massive problem in organizations today,” said Corsello.
This year alone Jobcase, a social media recruiting platform for blue-collar workers, secured $100 million; Built In, a Chicago-based tech recruiting and media platform received $22 million; and AllyO, an artificial intelligence conversational recruitment platform received $45 million.
The current spending spree follows at least a half-decade of heady HR tech investment. 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.
This year, start-ups offering solutions to find and manage gig workers are also gaining a lot of attention because “no one has figured out how to manage the entire workforce yet,” Corsello said. He pointed to Jobble, Sense, and Instawork — all gig recruiting platforms that secured healthy VC deals in the past few months. “It’s a huge area of interest.”
Skill development is also a hot area as companies attempt to prepare for the “future of work.” The biggest deal of 2019 is Coursera, the online learning platform that offers degrees and certificates, which secured $103 million in April to push its value past $1 billion. Other learning and development companies are drawing attention and investment, though this space has been less innovative, said Mallon. “We still need a philosophical shift in how we think about developing people before the technology can catch up.”
That’s not stopping VCs from investing in this space, though a lot of these deals still feel like investors throwing money at the problem to see what sticks. Mallon points to past investments in companies offering MOOCs — massive online open courses — and microlearning formats. “It wasn’t because they were so effective as learning tools,” he said. It was about trying new solutions.
And even the biggest deals shouldn’t be seen as proof that this technology will be disruptive. “A lot of companies are still only tackling the easy stuff,” said Chris Havrilla, vice president of HR technology and solution provider strategy at Bersin, Deloitte Consulting LLP. Whether it is high-volume recruiting platforms or chunky content training apps, these tools may solve problems, but they aren’t reinventing the workflow — “at least not yet,” she said.
Mallon believes innovations will come sooner in talent acquisition than in learning and development, and he expects VCs to continue investing across this space.
While not all of these VC investments will pay off, HR leaders shouldn’t be afraid to experiment, added Corsello. He suggests earmarking 20 percent of their budget to pilot new solutions. “You can test software at a relatively low level of risk to figure out what works for you.”
HR tech is in dire need of innovation, which is driving venture capitalists to pour big money into the space. But pure venture capital firms like Acadian Ventures and Andreessen Horowitz aren’t the only ones making these deals. A number of enterprise software firms, including Salesforce, Cornerstone OnDemand, Workday and Randstad, are getting into the VC game, investing millions of dollars into promising start-ups to bolster innovation.
“Most are using it as a hedge strategy,” said Corsello. While these are still venture capital deals and not acquisitions, companies may invest in two or three start-ups with similar solutions to see which ones they may eventually want to acquire. It’s a third alternative to the build or buy model for innovation, he said. “They are taking an ‘invest, watch and acquire later’ approach.”
While some entrepreneurs may balk at investment from a software company, viewing it as an early stage acquisition, it can be a benefit. Corsello pointed to Workday’s recent investment in talent acquisition firm Beamery, which generated a lot of speculation that it was a precursor to an acquisition. “Some companies don’t want to be aligned with a single vendor, but that deal gave Beamery a lot of exposure to Workday’s customers,” he said.
These deals are also good news for companies seeking new innovations to address their talent acquisition, training and employee engagement issues. “All of this interest indicates that there is a lot of innovation happening,” Corsello said. “HR executives should be paying attention.”
Last week, the Department of Labor issued an opinion letter [pdf] making clear that covered employers must provide intermittent FMLA leave to eligible employees who need time away from work to attend meetings to discuss the Individualized Education Program (IEP) of the employee’s child.
Rather than discuss the opinion letter in detail, I’ll instead direct you my blogging friends — Jeff Nowak, Suzanne Lucas, and Eric Meyer — each of whom covered this story over the past few days.
Instead, I want to use my space today to make a broader point about the law in general.
According to the National Center for Educational Statistics, in 2017-18, 7 million, or 14 percent of all public-school students, received special education services under the Individuals with Disabilities Education Act. Among those students, 34 percent had specific learning disabilities. Many are on IEPs, and even more are on 504 plans.
What’s the difference? An IEP is made available through the Individuals with Disabilities Education Act, and applies to students with 13 specific disability categories, including, for example, ADHD and autism. 504 plans are more generally available under the Rehabilitation Act and apply to any student with a disability that interferes with the child’s ability to learn in a general education classroom. Both IEPs and 504 plans require a team effort to work. That team always should include the parent(s) or primary caregivers.
Managing a child with special needs is hard. Employment obstacles should not make it harder. A parent shouldn’t have to worry about whether their special needs child is receiving the educational support they need to thrive in school and whether they will have a job when they return from a school meeting.
Bravo to the DOL for applying a common sense interpretation to the FMLA to conclude that attendance at IEP meetings “care for a family member … with a serious health condition,” which is “essential to her ability to provide appropriate physical or psychological care to [her] children.” No employee should have to choose between their family and their job, and this opinion helps ensure these protections.
Yet, with or without the FMLA, all employers should be offering these small amounts of time off. The law is a floor, not a ceiling.
I can hear the protesting cries: “We can’t give every employee time off for every little thing they need. They’ll take advantage of us.”
Seriously? An employee is not taking advantage of you by taking a few hours to meet with the educational team for their special needs child. If you are that worried that an employee is taking advantage of a situation, then deal with that employee.
But don’t deny the time off to all employees just because one employee has taken (or might take) advantage of you. It’s a performance issue specific to one employee. And, if employee leave abuse is a systemic problem throughout your workforce, you should take a look at what you’re doing wrong. Maybe it’s you and not your employees.
Employers, we should be better than this. We have to be better than this. We are better than this.
Don’t do the bare minimum that the law requires. Strive to do more. Make yourself an employer of choice for your employees. You’ll attract and retain better employees who will work harder for you. Don’t just try to reach the floor, but establish your own ceiling.
Employees may be lured by the idea of unlimited paid time off but the reality is unlimited paid time off is often an egregious fabrication that employers tell their workforce.
What is usually lost in the conversation is what employees are forced to give up when their organization decides to implement an unlimited system. There are plenty of legitimate business reasons to stop offering — and stop being enamored by — the allure of the unlimited PTO promise.
“It’s great to not have to pay out [accrued vacation] when people leave,” said Maggie Grover, a partner at Wendel, Rosen, Black & Dean LLP in an interview with website HR Dive. “Because people are so connected and working even when they’re technically off, they tend to take fewer full vacation days. So even if you cap a vacation bank at 1.5 or 2 times the annual accrual amount, the payout at the end of the employment relationship can still be significant.” And just to note, not all states require employers to pay out accrued vacation.
Recognizing that this is a large financial obligation, many companies are relieving themselves from these obligations by offering unlimited policies.
Employees also can’t save or accrue “unlimited” vacation time to use next year. When it comes time to transition from the company, the employer has no obligation to pay out the extra hours of productivity that were used in lieu of taking a break.
According to outplacement firm RiseSmart, an unlimited PTO policy “significantly reduces the costs of having to pay employees for unused PTO and may be one of the most compelling factors for companies considering an unlimited PTO policy.”
Unlimited vacation is a work-around, plain and simple. By offering this perk, companies get away from tracking and accruing a liability that in some states, once accrued, is considered earned wages. And once wages are considered earned, they must be paid out at departure or termination.
Less Time Off for Employees
Some studies show that American employees today often end up taking little or no more time off in an “unlimited” system compared to when they have a set number of days off each year.
In a study by HR platform Namely, research suggests that employees with “unlimited” vacation actually take fewer days off (13) on average than those with a limited number (15).
Unlimited PTO Is No Win-Win for Today’s Talent
Unlimited PTO sounds generous on a job description, but employees by and large end up getting paid less with no value attributed to their PTO while companies gain more of their employees’ productivity.
This latest benefits trend is harming the workforce and leading mass groups of employees to forfeit the second most important job benefit with no way to monetize or reutilize the value of their PTO.
Companies need to ask if they’re making these changes for employees or for their bottom line. If, let’s say, employees are using 100 percent of their PTO and a company wants to decrease expenses, then perhaps such a program makes sense. However, this is generally not the case today. Employees thus leave billions of dollars worth of unused PTO on the table.
Are benefits a meaningful way to attract, engage and retain employees? Absolutely.
Will unlimited PTO be a mainstay of the future of work? Absolutely not.
Instead of unlimited, employers — and talent — should be thinking in terms of flexible, diverse and portable benefits to mirror the workforce today.
An employee tells you that he was recently diagnosed with prostate cancer and needs a few weeks off for treatment, surgery and recovery.
Assume either you’re not an FMLA-covered employer or that the employee is not FMLA eligible.
Do you …
(a) Fire him.
(b) Deny the request and force him to quit to have the surgery.
(c) Grant the request, but ask the employee to provide medical information supporting the disability, the need for time off, and an expected return-to-work date.
I hope you picked “c.”
An Atlanta distributor of industrial supplies chose “a,” and it cost them $75,000 to settle an EEOC lawsuit. From the EEOC’s news release:
“Medical leave is a widely recognized accommodation, and in Mr. Smith’s case, could easily have been granted, preventing the firing of a valuable employee. However, instead of accommodating him, Vallen fired him less than 24 hours before his surgery,” said Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office. …
Darrell Graham, district director of the Atlanta office, said, … “An employee should not be forced to risk termination for seeking leave to treat a medical condition, which can be a perfectly reasonable accommodation under federal law.”
Takeaways?
1. Unpaid time off can, and often does, qualify as a reasonable accommodation under the ADA, whether or not the FMLA applies. Moreover, if you fail to consider it as a reasonable accommodation, you’ve likely violated the statute.
2. Firing someone who asks for a few weeks off for cancer surgery is awful. It’s even more awful if you wait until the day before the surgery to do the firing.
3. Given the egregiousness of the violation, $75,000 seems light (although I don’t know all of the particulars of this employee’s damages).
Artificial intelligence is a branch of computer science dealing with the simulation of intelligent behavior in computers or the capability of a machine to imitate intelligent human behavior.
Despite its nascent nature, the ubiquity of AI applications is already transforming everyday life for the better.
Whether discussing smart assistants like Apple’s Siri or Amazon’s Alexa, applications for better customer service or the ability to utilize big data insights to streamline and enhance operations, AI is quickly becoming an essential tool of modern life and business.
In fact, according to statistics from Adobe, only 15 percent of enterprises are using AI as of today, but 31 percent are expected to add it over the coming 12 months, and the share of jobs requiring AI has increased by 450 percent since 2013.
Leveraging clues from their environment, artificially intelligent systems are programmed by humans to solve problems, assess risks, make predictions and take actions based on input data.
Cementing the “intelligent” aspect of AI, advances in technology have led to the development of machine learning to make predictions or decisions without being explicitly programmed to perform the task. With machine learning, algorithms and statistical models allow systems to “learn” from data, and make decisions, relying on patterns and inference instead of specific instructions.
Unfortunately, the possibility of creating machines that can think raises myriad ethical issues. From pre-existing biases used to train AI to social manipulation via newsfeed algorithms and privacy invasions via facial recognition, ethical issues are cropping up as AI continues to expand in importance and utilization. This notion highlights the need for legitimate conversation surrounding how we can responsibly build and adopt these technologies.
How Do We Keep AI-Generated Data Safe, Private and Secure?
As an increasing number of AI enabled devices are developed and utilized by consumers and enterprises around the globe, the need to keep those devices secure has never been more important. AI’s increasing capabilities and utilization dramatically increase the opportunity for nefarious uses. Consider the dangerous potential of autonomous vehicles and weapons like armed drones falling under the control of bad actors.
As a result of this peril, it has become crucial that IT departments, consumers, business leaders and the government, fully understand cybercriminal strategies that could lead to an AI-driven threat environment. If they don’t, maintaining the security of these traditionally insecure devices and protecting an organization’s digital transformation becomes a nearly impossible endeavor.
How can we ensure safety for a technology that is designed to learn how to modify its own behavior? Developers can’t always determine how or why AI systems take various actions, and this will likely only grow more difficult as AI consumes more data and grows exponentially more complex.
The latest facial recognition applications can detect faces in a crowd with amazing accuracy. As such, applications for criminal identification and for determining the identity of missing people are growing in popularity. But these solutions also invoke a lot of criticism regarding legality and ethics.
People shouldn’t have to worry that law enforcement officials are going to improperly investigate or arrest them because a poorly designed computer system misidentified them. Unfortunately this is becoming a reality and the consequences for inaccurate facial recognition surveillance could turn deadly.
According to a 2017 blog post, Amazon’s facial recognition system, Rekognition, uses a confidence threshold set to 85 percent and upped that recommendation to a 99 percent confidence threshold not long after, but studies from the ACLU and MIT revealed that Rekognition had significantly higher error rates in determining demographic traits of certain members of the population than purported by Amazon.
Beyond accuracy (and the lack thereof in many cases), the other significant issue facing the technology is an abuse of its implementation — the “big brother” aspect.
In order to address privacy concerns, the U.S. Senate is reviewing the Commercial Facial Recognition Privacy Act, which seeks to implement legal changes that require companies to inform users before facial recognition data is acquired. This is in addition to the Biometric Information Privacy Act of Illinois, which is not specifically targeted at facial recognition but requires organizations to obtain consent to acquire biometric information, and that consent cannot be by default, it has to be given as a result of affirmative action.
As San Francisco works to ban use of the technology by local law enforcement, the divisive debate over the use — or potential misuse — of facial recognition rages on. The public needs to consider whether the use of facial recognition is about safety, surveillance and convenience or if it’s simply a way for advertisers or the government to track us. What is the government and private sector’s responsibility in using facial recognition and when is the line crossed?
How Should AI Be Used to Monitor the Public Activity of Citizen?
The future of personalized marketing and advertising is already here. AI can be combined with previous purchase behavior to tailor experiences for consumers and allow them to find what they are looking for faster. But don’t forget that AI systems are created by humans, who can be biased and judgmental. By displaying information and preferences that a buyer would prefer to keep secret, while more personalized and connected to an individual’s identity, this application of AI technology could evoke sentiments surrounding privacy invasion. Additionally, this solution would require storing an incredible amount of data, which may not be feasible or ethical.
Consider the notion that companies may be misleading you into giving away rights to your data. The impact is these organizations can now detect and target the most depressed, lonely or outraged people in society. Consider the instance when Target determined that a teen girl was pregnant and started to send coupons for baby items according to her pregnancy score. Her unsuspecting father was none too pleased about his high-schooler receiving ads that, in his mind, encouraged his daughter to get pregnant — and he let the retail giant know about it.
Unfortunately, not only are businesses gathering eye-opening amounts of information — many are being racially, economically and socially selective with the data being collected. And by allowing discriminatory ads to slip through the net, companies are opening a Pandora’s box of ethical issues.
How Far Will AI go to Improve Customer Service?
Today, AI is often employed to complement the role of human employees, freeing them up to complete the most interesting and useful tasks. Rather than focusing on the time-consuming, arduous jobs, AI now allows employees to focus on how to harness the speed, reach and efficiency of AI to work even more intelligently. AI systems can remove a significant amount of friction borne from interactions between customers and employees.
Thinking back to the advent of Google’s advertising business model and then the launch of Amazon’s product recommendation engine and Netflix’s ubiquitous “suggested for you” algorithm, consumers face a dizzying number of targeted offers. Sometimes this can be really convenient when you notice that your favorite author has come out with a new book, or the next seasons of a popular show launched. Other times it comes across as incredibly invasive and seemingly in violation of basic privacy rights.
As AI becomes more prominent across the enterprise, its application is a new issue that society has never been forced to consider or manage before. While the application of AI delivers a lot of good, it can also be used to harm people in various ways, and the best way to combat ethical issues is to be very transparent. Consequently, we — as technology developers and manufacturers, marketers and people in the tech space — have a social and ethical responsibility to be open to scrutiny and consider the ethics of artificial intelligence, working to hinder the misuse and potential negative effects of these new AI technologies.
Rob Carpenter is the founder and CEO of Valyant AI, a Colorado-based artificial intelligence company focused on customer service in the quick-serve restaurant industry.
There are some employment policies that you can get away with not having. An anti-discrimination policy is not one of them.
In Hubbell v. FedEx SmartPost(decided Aug. 5 by the 6th Circuit), FedEx learned this lesson the hard way.
Sheryl Hubbell worked for Defendant FedEx SmartPost as a parcel sorter. A jury concluded that it retaliated against her after she filed an EEOC charge alleging that her manager demoted her and ultimately fired her after telling her that “females are better suited to administrative roles and males are better suited to leadership roles.” A jury awarded her $519,550, reduced by the trial court to $415,60 (plus an additional $157,733.75 in attorneys’ fees).
This employer made a lot of mistakes that caused this large judgment, but one of the biggest was that it did not have an anti-discrimination policy until 2013, one year after Hubbell claims she started suffering retaliation.
Several of Hubbell’s managers testified that FedEx had an anti-discrimination policy and that they had been trained on this policy. Jessica Benjamins, FedEx’s corporate Human Resources manager, also testified as to FedEx’s anti-discrimination policy. She testified that FedEx conducts annual online “diversity inclusion training” for managers. And she testified that it has long been FedEx’s policy not to discriminate. But FedEx only promulgated a specific policy on non-discriminatory hiring and promotion on November 26, 2013—after Hubbell was demoted and filed her first EEOC complaint.
So here’s your homework assignment. Open your employee handbook. Turn to the table of contents. Look for the policy that says, “Discrimination.” If you can’t find it, call me.
A Muslim woman is suing the hospital at which she works as medical assistant, claiming she was told she needed a “note from the Quran” when she asked for an exception to the hospital’s dress code to wear a face covering during Ramadan.
The case, Boyd v. Cooper University Hospital, is pending in federal court in New Jersey. While it’s just filed and years from resolution, we can use it to learn how an employer should react when a employee dons religious garb in the workplace.
Title VII requires that an employer reasonably accommodate an employee’s sincerely held religious belief. This accommodation includes exceptions to an employer’s dress code or grooming policy.
According to the EEOC, an employer may not “automatically refuse to accommodate an applicant’s or employee’s religious garb or grooming practice if it would violate the employer’s policy.”
Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business. … For purposes of religious accommodation, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer’s business.
There are limits, however, and an employer may “bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns … but only if the practice actually poses an undue hardship on the operation of the business.”
The employer should not assume that the accommodation would pose an undue hardship. While safety, security, or health may justify denying accommodation in a given situation, the employer may do so only if the accommodation would actually pose an undue hardship. In many instances, there may be an available accommodation that will permit the employee to adhere to religious practices and will permit the employer to avoid undue hardship.
While we have no idea how the Boyd case will play out, it nevertheless serves as a great illustration of the need for employers to consider exceptions to dress codes as reasonable accommodations for employees’ sincerely held religious beliefs, and the risks that occur when employers skirt this obligation.
“I’d cry all night and go to the bathroom and throw up. Even though I had a dream job I felt like I was selfish for not being there. So I sacrificed my job and moved to Seattle.”
Employees also can’t save or accrue “unlimited” vacation time to use next year. When it comes time to transition from the company, the employer has no obligation to pay out the extra hours of productivity that were used in lieu of taking a break.
