human resources – Page 24

June 4, 2019June 29, 2023

Proposed Law Wants to Convert ‘Anti-Vaxer’ Into a Protected Class

With a couple of important exceptions, an employer can require that employees be up to date on their vaccinations.

The exceptions?

1. An employee with an ADA disability that prevents him or her from receiving a vaccine may be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

2. An employee with a sincerely held religious belief, practice, or observance that prevents him or her from receiving a vaccine may also be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

A recently proposed Ohio looks to significantly expand these exceptions by elevating “unvaccinated” to the equivalent of a class protected from discrimination.

The misleadingly named Medical Consumer Protection Act would prohibit an Ohio employer from discharging without just cause, refusing to hire, or otherwise discriminating against any person on the basis that the person has not been or will not be vaccinated because of a medical contraindication or for reasons of conscience, including religious beliefs. It would also create a private cause of action allowing an employee to file suit over violations and seek compensatory and punitive damages.

I had a roommate in college who was fond of telling me that my opinion was wrong. I would tell him, “My opinion is my opinion. It might be misinformed. You might disagree with it. But it can’t be wrong.” It’s Hyman’s Law of Opinions. Today, I decree the following amendment to Hyman’s Law:

* … except in the case of vaccinations. If you oppose vaccinating yourself or your children, your opinion is wrong, period (unless you have a bona fide medical condition or religious belief that prevents you from receiving said vaccinations). Otherwise there’s no reason not to vaccinate. If you don’t care about your own health, care about the health of all of those around you, and the public health risks and costs you are helping create.

And if you happen to be an anti-vaxer and take issue with Hyman’s First Law of Opinions (as amended), you’ve brought the measles back from extinction. Case closed.

So I give a big thumbs down to the Medical Consumer Protection Act. It’s both unnecessary (by protecting from employment discrimination those whom the law already protects) and wildly over broad (by also protecting those who are unvaccinated “for reasons of conscience”).

Thankfully, this poorly conceived piece of legislative policy will never become an actual law.

June 1, 2019June 29, 2023

When Job Applicants Lie: Implementing Policies to Protect Your Company

A recent study revealed that 85 percent of employers have caught applicants lying on their résumés or job applications.

The most common lies involve modifying dates of employment, falsifying credentials, training or degrees, inflating prior earnings, or hiding a criminal history.

Throughout the past several years, there have been several stories of prominent executives and CEOs, across many industries, whose careers were cut short for lying on their job applications or résumés.

What should human resources professionals do when they discover that an employee has lied on their job application or résumé? How can employers avoid liabilities stemming from application falsification? What are the legal consequences for employers?

Preemptive Measures

The first step employers should take to avoid potential pitfalls is to implement a clear and uniform policy about the consequences of providing false information on an application.

For example, a brief disclaimer can be included near the signature line of the employment application, in which the applicant affirms and agrees that providing false, misleading, or incomplete information on an application, in a résumé, or during the interview process is grounds for disqualification from employment or termination if hired. The disclaimer should also expressly waive any liability for the employer if the applicant is not hired or is terminated for providing false information.

More importantly, employers should be consistent in enforcing this policy. Consistency can protect the employer from legal liabilities — and countless headaches — down the road. To accomplish this, employers should document every applicant’s receipt of the policy.

If a background investigation reveals that an applicant or employee clearly lied on his or her application, the applicant should be rejected or the employee terminated immediately. If the employer only suspects a falsification, HR should engage in a fair and impartial investigation and document its findings. Depending on the results, disciplinary action should be taken.

When assessing an applicant’s background, employers should focus on convictions and not arrest records. Otherwise, applicants may be unfairly prejudiced in the hiring process based on unsupported criminal allegations.

Conducting Pre-Employment Background Checks

Recent federal and state laws have presented hiring professionals with new compliance challenges when conducting a background screening. For example, while there are no federal laws requiring home health agencies to conduct criminal background checks or disqualify applicants from employment based on the results, there are 41 states that require these agencies to conduct criminal background checks.

Those requirements in those 41 states vary widely, including when the background check must be completed, what sources of information must be checked, which positions require background checks, and which convictions, if any, result in disqualification from employment.

The benefits of conducting criminal background checks in the hiring process often outweigh these challenges, especially in fields — such as health care or government contracting — where a failure to conduct screenings can result in hefty consequences.

While many employers may prefer to use social media to research an applicant’s background, employers should exercise caution when using an applicant’s protected characteristics (like race, religion, age or gender) as a basis for refusing employment.

Understanding the legal landscape as it relates to information an employer may request of an applicant is also key. For example, some states have laws that prohibit employers from requesting an applicant’s social media username and password. Additionally, some states have legislation referred to as “Ban the Box,” which prohibits employers from asking about criminal history on a job application.

Unforeseen Benefits of a Consistent Policy

In most cases, implementing a strong application falsification policy can result in some unexpected positive benefits. For example, many states have laws prohibiting employers from revoking job offers based on the discovery of a misdemeanor or other types of conviction with no relevance to the applicant’s suitability for the position.

Nonetheless, even though the employer cannot revoke the offer because of the conviction itself, the employee’s misrepresentation about the existence of the conviction is grounds for revocation.

For example, in a Pennsylvania case, the plaintiff only disclosed two convictions — stalking and harassment — on his application. But a background investigation revealed that he had pleaded guilty to eight additional crimes, including public drunkenness, disorderly conduct and drug crimes.

The company revoked his offer. The district court determined that the company did not violate Pennsylvania’s criminal background check statute because the termination was not for the employees’ conviction, but his lie about it. Importantly, the district court relied heavily on the company’s implementation and communication of a consistent policy forbidding applicants from lying on their applications.

In a similar vein, companies faced with discriminatory failure to hire claims have successfully argued that the later discovery of falsified job applications is a complete defense against the claims. In other words, if the company would not have hired the employee had it known of the applicant’s lie, the applicant cannot later claim that he or she was not hired because of a protected characteristic.

Here too, courts look closely at the company’s fair, equitable and consistent enforcement of its application falsification policy to establish that the company’s decision was not motivated by discriminatory intent.

Another benefit of maintaining a strong background check policy is that it can absolve or limit the company of liabilities down the road if the employee is terminated. Oftentimes, in the course of litigation over wrongful termination or discrimination claims, exhaustive background checks into the plaintiff reveal criminal histories previously unknown.

While an employer may still be on the hook for some damages if the decision to terminate was indeed discriminatory, the Supreme Court has held that a reward of back pay can be cut off completely — and the plaintiff’s potential damages significantly limited — if the employee’s wrongdoing was so severe that the company would have terminated the employee in any event if it had been uncovered. As a result, employers can potentially limit their exposure to liability in later wrongful termination claims by consistently enforcing a no-tolerance policy for application falsification.

While not every application falsification results in a high-profile CEO or executive separation, the problem is common across industries. HR professionals should take care to review their company’s job application process with the help of legal counsel to implement a fair and equitable policy that is compliant with state and federal regulations and train interviewers and hiring professionals of what they can and cannot ask.

The fix can be quite easy, and the benefits are great.

May 31, 2019June 29, 2023

Some 2020 Election Views: Jan Berger on Single-Payer Health Care

Not surprisingly the future of the United States heath care system is already a huge topic of debate for next year’s presidential election.

Many of the 2020 Democratic nominees for president are supporting a single-payer or Medicare for All solution.

Since the United States has never had this type of health care, it’s helpful to sort out the myths from the facts, which is exactly what one woman did at an employer-centric health care conference recently.

Jan Berger, president and CEO of international health care consultancy Health Intelligence Partners, gave a presentation on single-payer health care at the Midwest Business Group on Health annual conference in May.

One of the first ideas Berger brought up is key. Every country in the world, including the United States, is having the same health care problems no matter what the financial model is being used, she said. These problems include rising costs and access issues. The only way the U.S. is different, she added, is that we’re the only country that has made health care “political warfare.” Also, in most other countries people don’t go bankrupt or homeless because of health care costs.

Meanwhile, Berger also debunked several myths about other countries’ single-payer systems. One key myth is that “health care is socialized medicine.” While some socialist countries do use a single-payer system, many non-Socialist countries do, too. Pulling the socialist card to dismiss the single-payer discussion is “a bullet people use to not discuss change,” Berger said.

Berger listed other misconceptions about single-payer health care:

Single-payer financial models are all the same. (None are the same.)
“Single-payer” applies to both the finance and delivery of health care. (Only four countries have fully integrated models.)
Single-payer means no cost to the consumer. (This is very rarely true. There are out-of-pocket costs in almost all countries that use single-payer.)
Single-payer means no focus on preventative care. (This is not true, Berger noted, giving the examples of Cuba, Costa Rica, Israel, Saudi Arabia and Australia.)
Single-payer dictates how doctors treat patients. (It doesn’t.)
Single-payer models destroy innovation. (Berger noted many examples of how this is not true. To name a few: The Netherlands, which has one of the most unique memory-care systems in the world; South Africa, with its automated pharmacy teller machine.)

“We don’t have to be somebody else, but we have to learn from somebody else,” Berger said.

One other idea that Berger mentioned was the need to know the definitions of key phrases if you’re going to have a conversation about the different health care proposals. For example, the difference between Medicare and the Medicare For All bills. While Medicare doesn’t cover vision or dental, the predominant Medicare for All Act in Congress covers a broader range of services, she said. While the word “Medicare” is used in this context, by definition Medicare for All does not mean the exact quality and coverage of Medicare expanded to each U.S. citizen.

It’s also necessary to understand the definition of universal health coverage, which the United States does not have even with the Affordable Care Act. The World Health Organization defines universal health coverage as “ensuring that all people have access to needed health services (including prevention, promotion, treatment, rehabilitation and palliation) of sufficient quality to be effective while also ensuring that the use of these services does not expose the user the financial hardship.” It continues, “People need to be protected from being pushed into poverty because of the cost of health care”— a milestone the U.S. has yet to reach.

None of this is to say health care should be one way over another. But if we’re debating on what health care system works best for the country, then relying on facts rather than myths for information is a good start.

It’s possible to admit that the current employer-based health care system is not doing well in certain regards. Almost 24 million Americans enrolled in employer health plans must spend a large share of their income on health care. High-deductible health plans have the power to impact low-wage workers in much more detrimental ways than they impact high-wage workers. Contributing to HSAs like some employers promote just isn’t possible for many low-income employees; in fact, Bruce Sherman, medical director at the National Alliance of Healthcare Purchaser Coalitions noted at this same MBGH conference that only 1 percent of low-income employees contribute to HSAs.

Whatever the solution is to problems within employer-sponsored plans currently are, it’s not something that has been solved yet. There are going to be plenty of suggestions from the candidates.

As the 2020 election nears, we’re likely to hear a lot of hyped and a lot of misleading “facts” about certain health system proposals, and I’d encourage you to look at the facts instead of falling too deeply into the “political warfare” of U.S. health care.

May 31, 2019June 3, 2019

Bully or Tough Boss? Here Are Some Guidelines to Define Leadership

The good news: Many companies invest in programs that support employee physical and mental health of their employees. They understand that flourishing human beings generally translate into happier and higher performing employees.

The bad news: Not all bosses have gotten the memo.

It’s bad enough that after having to dodge bullies in school; we still confront them even as adults. Even worse, the bully may be the person who’s supposed to be in charge of your mentorship and growth, yet it seems like they’re more interested in intimidation and threats.

So how do you know when your boss has crossed the line into being a bully, and what do you do when he or she has?

How to Spot a Bully at Work

Having cut my teeth at a Fortune 50 technology company, I’ve heard a lot of debate on whether a boss was tough or simply a bully. It can sometimes be hard to tell if a boss is pushing you to reach your limits or trying to push you off a cliff.

A boss that only wants to be liked and lets his or her team walk all over them is another kind of danger. But being assertive and demanding can go too far. Leadership is tricky; one must be aware of their own personality derailers, understand positive and impactful boundaries, and be able to inspire others to help drive lasting results, without being a bully.

The Workplace Bullying Institute defines bullying as “threats, humiliation, intimidation, work sabotage or verbal abuse.” In its 2017 report, they found that about 1 in 5 workers are bullied at work, and 61 percent of the bullies are bosses.

If you want to know if you’re being bullied, ask yourself how you feel. If you’re being pushed by a tough boss, you should still feel inspired and psychologically safe. If you feel nauseous at the thought of going to work, unable to sleep and stressed to the max, you might be being bullied.

Bullies come in a few varieties, some easier to spot than others.

The easiest one is the loud, abusive boss. They humiliate you in front of others. You’re the butt of their jokes. They curse at you. It feels like the playground and you’re being pushed in the dirt by the big kid.

There is also the boss who is a passive bully. They torment their targets with quiet but piercing techniques such as undermining their employees, dividing their team, gossiping and sometimes even creating lies. This one feels a little more like high school, whispering in the halls.

How to Handle a Bullying Boss

There is not a single or simple answer to how to manage a boss who believes the best way to develop employees is to give them tough love or build thick skin by being abusive, abrasive or explosive.

If you find yourself in this type of environment, let me start by saying it is not OK and it is not your fault. I understand how being in this type of situation can tear you apart emotionally and physically. Breaking you is what the bully wants to do.

The most important thing you must do is take care of yourself. Removing yourself from the situation is always an option.

Some may criticize me for suggesting you leave the bully boss situation, because it may look like you’re letting the bully win. But it is an option you have and sometimes this is the best option for you.

If you choose to take on the situation head on, here’s my advice:

Have a plan. Be thoughtful and deliberate about how you will show up, perform, communicate and get results.

Continue to perform. Bring others along on your journey and deliver results. The bully will have a hard time attacking you if others are involved and part of your work.

Document. Even the little things should go in a log. A bully often makes mistakes that will leave them vulnerable to being reported.

Be careful who you trust. You may find yourself in a situation where you are ganged up on because another person the bully attacks is looking for any break from the bad behavior and they actually side with the bully. It reduces their torment. It sounds crazy, but it happens.

Talk to someone. Many people think this is a sign of weakness but it is not. You might want to talk with someone outside your organization so you know it won’t get back to the bully.

Remember That Bullies Are Ultimately Pathetic

I have come across a few bullies in my career and they were miserable people. They talked about others all the time, bringing everyone around them down.

Their home lives were sad. They were often unhealthy. When they did smile, it was forced. They carried a lot of stress and it showed up in their work, relationships, family and community.

The one thing I remind myself of frequently is that bullies I have come across in my career have to live with themselves every day.

You can escape your bully, but they cannot escape themselves. In time you will rise above the situation and never look back and your bully has the pleasure of living in their hateful and unhealthy life. That is their punishment.

Most bullies lack confidence and feel powerful when others feel powerless. Bullies are often threatened by the person they are bullying. It sounds silly and it is, but it is often true. You must take care of yourself if you find yourself in a situation like this. This will impact how you show up for yourself, your coworkers, your team and, more important, your family and friends.

It’s never OK for someone to bully another person. If the bully is making it sound like it is to get the best results out of a person or toughen them up, feel free to call it out.

There is no place for an abusive boss, including verbal abuse. I believe strongly in accountability and I set a high bar — professionally and personally — for my peers, my team and myself. Please do the same for yourself.

May 30, 2019April 26, 2019

Stalker Costs Costco in Bulk

Dawn Suppo was a Costco Wholesale Corp. employee.

A customer approached Suppo and asked her personal questions, including where she lived. A few days later, the same customer asked Suppo more questions. In another instance, Suppo noticed that the customer was in a disguise, and watching her from behind an aisle.

Suppo complained to her supervisors, but to no avail. Suppo also asked for a closer parking spot in the Costco parking lot, which was denied. The customer encountered Suppo at least 20 more times over the next 13 months, in some instances attempting to touch Suppo, bumping his cart into her, and, in one instance, videotaping her. Suppo was forced to obtain a “no contact order” to restrain the customer.

The stalking forced Suppo to take family medical leave to avoid continued encounters with the customer. Eventually, Costco terminated Suppo because her unpaid medical leave had expired. Suppo filed a hostile work environment charge with the EEOC under Title VII. After an investigation, the EEOC filed a lawsuit against Costco on behalf of Suppo.

The case proceeded to a jury trial, and the jury ruled in favor of Suppo. On appeal, the U.S. Court of Appeals for the 7th Circuit held that the harassment Suppo faced was “severe and pervasive” under the law, given the significant amount of stalking that took place.

The court affirmed the jury’s conclusion that there was a basis for employer liability because the employer’s response to Suppo’s predicament was “unreasonably weak.” EEOC v. Costco Wholesale Corp., 903 F.3d 618 (7th Cir. 2018).

IMPACT: Employers should be aware that a hostile work environment can be created by unreasonable behavior on the part of a company’s customers. In the case of stalking, employers should attempt to provide solutions to employees to avoid the stalking and cooperate with police where necessary.

Also in Legal Briefings: Public Sector Employers and Age Discrimination

May 29, 2019June 29, 2023

Does the Attorney-Client Privilege Protect Harassment Probes Conducted By a Lawyer?

An employee complaints to HR that her supervisor has been sexually harassing her.

The allegations aren’t pretty, and, if the investigation is mishandled (or even if it’s handled perfectly), you are reasonably confident that the employee will sue the company. Thus, you want to ensure that every “i” is dotted and “t” crossed in the investigation. So, you bring in the big guns to handle the investigation—the company’s attorney.

At the conclusion of the investigation, the lawyer recommends that the company suspend, and not fire the harasser. That decision leads to the victim filing suit.

During her lawsuit, the employee requests a copy of the investigatory report. You refuse, claiming it’s protected by the attorney-client privilege.

Who wins that fight? Does the court compel you to disclose the report, or does it protect it from disclosure as privileged?

In Barbini v. First Niagara Bank, a federal court recently addressed this very issue. It concluded that the lawyer’s investigatory report is not privileged and ordered its disclosure.

1. Not legal advice. Not all communications between lawyer are client are privileged communications. The attorney-client privilege protects communications that are primarily or predominantly of legal in nature, the interpretation and application of legal principles to guide future conduct or to assess past conduct. It does not, however, protect communications that involve the business or operations of the employer that do not otherwise rely upon the interpretation and application of legal principles. When a lawyer fills the role of an investigator of workplace misconduct, the attorney is filling a business role, not a legal role. Thus, the privilege does not attach to protect the communications. The lawyer is no longer the company’s lawyer, but a fact witness as to what occurred.
  (Sidebar: the lawyer/investigator will also have a conflict of interest precluding him or her from representing the company in the litigation, so don’t retain your litigation counsel to conduct the investigation unless you are prepared to find new litigation counsel for that case.)
2. Waiver. If the employer wants to be able to rely upon the investigation at all as part of its defense to the harassment claim, then it is going to have to waiver any attorney-client privilege that otherwise might attach to and protect the investigation. The employer might need to prove that the promptness and thoroughness of its investigation. It might need to prove the reasonableness of its corrective action. It might be asserting a Faragher/Ellerth affirmative defense, or advice of counsel affirmative defense (as was the case in Barbini). In any of those instances, privilege will have to be waived, and the investigatory report, along with all of its related documents, will have to be produced.

As an employer, you should want to rely on your harassment investigation to prove the reasonableness of your response to the complaint. If you are trying to keep the investigation from the plaintiff-employee, in my mind it only begs the question of what skeletons you are trying to hide.

And, in this case, you are probably better off settling the case than digging in your heels and fighting a privilege fight you shouldn’t really be fighting in the first place.

May 28, 2019June 29, 2023

What Does a Valid Jury Waiver Look Like?

Earlier this year, the Senate took up the Forced Arbitration Injustice Repeal Act.

It would, among other things, prohibit employers from requiring employees, as a condition of employment, to sign agreements submitting employment and civil rights claims to arbitration in lieu of filing in court. According to Vox.com, this legislation has some initial bipartisan support, and has some legit traction to perhaps become law.

I am on record as not being a fan of arbitration for employment disputes. I do not believe they are any less expensive or time consuming that in-court litigation. In stead, I’ve previously argued for tools such as contractually shortened statutes of limitations and jury waivers as tools employers can to limit risk instead of arbitration agreements.

What does a jury waiver look like, and in what circumstances do courts enforce them? A recent Ohio appellate decision provides the answer.

In Kane v. Inpatient Med. Servs., the employer required its employees, as a condition of employment, to sign an employment agreement that contained the following jury trial waiver.

Waiver of Jury trial. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

In her sex discrimination lawsuit, Kate Kane argued that her discrimination claims should have been tried by a jury because the jury trial waiver did not expressly mention discrimination claims within its umbrella of coverage. The appellate court disagreed.

Undoubtedly, the waiver provision is broad. It encompasses “any litigation directly or indirectly arising out of or relating to this agreement and any of the agreements delivered in connection herewith or the transactions contemplated hereby or thereby.” This Court must conclude that Ms. Kane’s claims alleging discriminatory termination at the very least indirectly arise out of or relate to Ms. Kane’s employment agreement.

She also argued that the jury trial waiver as a whole was invalid, as she did not she did not voluntarily, knowingly and intelligently waive her right to a jury trial. Again, the appellate court disagreed, noting that courts apply the following five factors to determine if a “jury waiver was was entered into knowingly, voluntarily, and intelligently.”

The conspicuousness of the provision of the contract;
The level of sophistication and experience of the parties entering into the contract;
The opportunity to negotiate terms of the contract;
The relative bargaining power of each party; and
Whether the waiving party was represented by counsel.

In this case, the court concluded that the five factors merited the enforcement of the jury waiver.

We note that while the provision appears towards the end of the agreement, the provision is nonetheless conspicuous as it appears in all capital letters while most of the agreement does not. Ms. Kane has not argued she was unaware that the provision was in the agreement. Ms. Kane is a college-educated professional with experience negotiating contracts. In fact, there was evidence that Ms. Kane negotiated a higher salary prior to accepting an offer of employment. There was no evidence presented that would indicate Ms. Kane did not have a meaningful choice with respect to the waiver. And while the record does not indicate whether Ms. Kane was represented by counsel at the time she was offered a job, the employment agreement does contains a clause indicating that Ms. Kane “had the opportunity for th[e] Agreement to be reviewed by counsel[.]” Ms. Kane’s mere assertions that she did not understand she would be waiving her right to a jury trial for these claims is insufficient under the circumstances to demonstrate that the waiver was not entered into voluntarily, knowingly, and intelligently. We cannot say that the waiver is unduly complicated or confusing such that someone of Ms. Kane’s background would not have understood the scope of the right she was waiving.

Thus, if you seek for employees to contractually waiver their right to a jury trial, you should ensure:

The waiver is in writing.
It is clearly and conspicuously delineated within an agreement, such that employee is not likely to miss it upon reading the contract.
It is written in language for which it is reasonable for the employee to understand.
The possibility of negotiation of any terms of the employment agreement is at least a possibility.
If offers the opportunity for the employee to have their own counsel review it before the employee signs.

And, while it’s tempting merely to ape the language used in Kane, you should really have your own employment counsel review a jury waiver before you implement it in your own employment agreements.

I love the Kane case, because it gives employers something to think about other than, “Everyone else loves arbitration agreements, so we do too.” After careful deliberation, you might decide that arbitration agreements are the correct answer for your employees and your business. Before making that decision, however, consider the risks, benefits and alternatives. You might just decide that jury waiver is the right solution.

May 28, 2019June 29, 2023

A Collective Concept for Conflict Resolution

All kinds of personal issues at work escalate into conflicts, and we usually resolve them privately.

Making the process public is a recipe for awkward, messy feelings, isn’t it?

Maybe not.

My consulting firm recently experimented with working through a conflict between two staff members in a collective way. That positive experience, along with insights from our culture work with clients and other research suggests we need to rethink the way we resolve interpersonal clashes in the workplace. In particular, there are four reasons why in many cases we should shift to collective conflict resolution.

And when we do, we help our organizations “go horizontal” — move toward non-hierarchical cultures that I and others see as the future of work.

The four reasons for resolving conflicts publicly are:

1. People feel safer to communicate. How can you feel safer with a bunch of people observing you? Because individuals can stretch truths and even (ouch) sometimes full-out lie. When there are witnesses, those behaviors are less likely. One of my colleagues who has experimented with a group approach to conflict resolution puts it this way: “Having witnesses helps me work my way through my emotions and communicate in the most precise and exact way I can.”

2. Conflict is usually wider than the pair being mediated. When we are upset with a situation we often talk about it to others. This usually leads to a one-sided perspective and some emotional offloading. If I go into a private room and experience a successful mediation process, those people who have been pulled into the conflict are still feeling it. The conflict still exists in others and can linger and return, like hot coals. If we acknowledge that conflict is in the system, we should invite those involved in the system to witness the untangling of it. That puts out the conflict “out” properly.

3. When a tension gets untangled it usually ends with solutions. If a conflict is settled privately it puts a lot of pressure on those in the situation to handle the follow up on their own. But if the resolution process is public, everyone understands the situation more fully and understands what else must be done. This generates a sense of mutual support. If you aren’t there to witness the untangling, you miss out on creating that help system and feeling shared responsibility thereafter.

4. Well-resolved conflicts can have a bigger societal impact. When people work out differences in a positive way, it can lead to profound change that ripples beyond the individuals involved. Author Diane Musho Hamilton notes that every tension with another person is an opportunity to transform the conflict into “patience, mutual understanding, and creativity.” She continues: “When we use the opportunity, we contribute to the shared endeavor of learning how to live peacefully with each other.”

When we see interpersonal conflicts at work as inevitable, as connected to wider systems and as a chance to cultivate a more nonviolent human race, we start to see why they may not be suited for hidden encounters between just two people. Or two people and a mediator. When quarrels are privately addressed, they not only carry a whiff of shame to them, they are lost opportunities. Why shouldn’t we bring the advantages of the full team to these snags, and allow the team to receive the full benefits of straightening them out — with positive outcomes spreading outward from every individual witnessing the work?

This rippling out gets at how collective conflict resolution helps organizations become more horizontal. By horizontal cultures, I’m referring to workplaces that are characterized by a focus on purpose, by transparency, by employees participating in decision-making and by relationships that are more deeply human than the transactional ones often found in traditional, top-down organizations.

Any two individuals involved in a spat are typically part of a wider social web. Treating the conflict as an opportunity to heal not just their immediate rift but strengthen the broader community reinforces an organization’s commitment to horizontal principles.

And those principles are increasingly vital to success. Hierarchical organizations are proving too slow and stultifying to solve today’s problems. Examples of companies embracing flatter, more participatory structures range from computer chip maker and artificial intelligence leader Nvidia to tomato processor Morning Star to Dutch home health care provider Buurtzorg Nederland. As these and other organizations show, the future of work is in flatter, horizontal cultures.

Publicly resolving conflicts in your organization can help you go horizontal, too.

May 27, 2019June 29, 2023

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, & 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&ref_src=twsrc%5Etfw”>#fixitshrm</a></p>— 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.

May 24, 2019June 29, 2023

The Precarious Legalities of Socially Conscious Workplace Policies

More and more employers are adopting socially conscious practices that impact the manner in which the employer operates.

My firm’s headquarters are in a Certified LEED “green building.” Generally, companies in such buildings commit to reducing the use of plasticware.

In July 2018, American Airlines and Starbucks announced they will no longer use plastic straws. But, how far can and should these practices go? Could a company in a Certified LEED green building refuse a reimbursement request from an employee who had a business meal at a restaurant that uses only plasticware? Could American Airlines or Starbucks discipline an employee who was caught using a plastic straw at work? Likely, yes.

Title VII of the Civil Rights Act protects employees from discrimination on the basis of race, color, religion, sex and national origin. The American with Disabilities Act protects employees with disabilities; the Age Discrimination in Employment Act prohibits age discrimination.

But there is no employment law protecting an employee’s right to use plastic.

Should an employer’s “social consciousness” go that far? While an employer may legally be permitted to influence employee behavior by disciplinary enforcement of the employers’ socially conscious policies, should it do so? Let’s address socially motivated policies that may be legally permissible as well as questions employers should consider when determining whether such policies are good business practices.

Considerations for Employers

Shared workspaces provider WeWork recently announced that it is imposing a companywide ban on all meat. As part of the ban, the company announced it will no longer reimburse employees for meals that include red meat, poultry and pork (presumably fish and seafood are OK). Failed startup Juicero reportedly had refused to reimburse the cost of any business meals other than meals at vegan restaurants.

What about the employees who see nothing wrong with eating meat? Or with eating at a non-vegan restaurant? There is no law entitling employees to the right to eat meat (or eat non-vegan), so technically these policies are legal. While one could conjure up some possible “selective enforcement” argument that it is unfair, the practice is not likely unlawful (though in some very few instances it could run afoul of stringent state laws on reimbursing employees who spend their own funds for business purposes).

But are they advisable? Are employers who are implementing these socially conscious policies actually creating a more positive workplace culture? Or, are they inviting cries of hypocrisy from those who think they do not go far enough or cries of unfairness from those who think they go too far?

“These policies are easily attacked as hypocritical. WeWork, for example, claims its policy of not reimbursing for meals with meat supports sustainability. But what about the use of plasticware? Or what about car allowances only for electric vehicles? Without a policy on the use of plastic or about gas vehicles, is their sustainability stance pure or merely selective?

What of taking this benefit from those who see nothing wrong with meat? Or worse, what about the workplace morale of an employee whose family owns a cattle farm that produces beef? Perhaps that was the only way the family could afford to support themselves or send the children to college, and perhaps the family even supports other meaningful causes with its income from cattle. And, what of our culture’s “no one should tell others what to do” individualism?

Also read: Welcome To The Era of the Activist CEO

The professed sustainability purpose, on the one hand, or the professed “inclusiveness” and camaraderie of the workplace environment on the other hand, can only reach so far. Both the purists and those excluded for not having “right” ideas are marginalized.

How Employers Should Move Forward

So where does this leave us? Certainly, employers should take into consideration employee rights and employment laws in having socially conscious policies that reach so far as to attempt to impact employee behavior. But the harder question is whether employers should make such attempts.

The answer is nuanced, and often the very purposes an employer seeks to serve with these policies have unintended consequences that weaken, rather than strengthen, employee morale or a greater purpose of workplace “culture.”

One other point deserves mention. Do employers make these decisions based on principle or on a market analysis? Are these decisions borne of a desire to cultivate a healthy workplace community by being part of a bigger, socially conscious vision?

Or, are these market-based decisions borne primarily of a desire to use social consciousness as a marketing tool? For example, what if we learned that WeWork, when first deciding on this policy, had conducted market research predicting that such a decision to adopt a vegetarian stance would enhance customer loyalty and market penetration and consequently increase revenue, and that this research was the primary driver of its decision? Would this socially conscious principle lose its power?

Also read: Charitable Holiday Season Best Practices for Employers

A principled decision often sees the bigger vision of work as an attempt to cultivate deeper meaning beyond a cost-benefit economic analysis. Such decisions can have a powerful positive impact on the workplace.

But, the market-based approach, the view that we should be socially conscious because it is good for business and a great marketing strategy, can certainly backfire. It is impossible to promote selflessness by touting its selfish benefits.