Category: Commentary & Opinion

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Q&A with Rachel Druckenmiller: From intern to entrepreneur

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Rachel Druckenmiller, founder and chief executive officer of Unmuted, started her HR and leadership journey long before receiving the Game Changer award in 2019. In this Q&A, Druckenmiller tells Workforce what she has learned along the way, and gives advice regarding how to keep pushing forward in the face of change.

Workforce: How have you grown professionally over the course of your career?

Rachel Druckenmiller: I’ve learned how to discover and use my strengths. I have pursued learning and development opportunities every year, whether it’s reading a book, attending a conference or training, taking an assessment, or learning from teachers, coaches and mentors. I’ve pursued what my dad calls “interest-driven work.” I became a health coach in the midst of dealing with my own health challenges. I went back to school to study my field more intensely and earned a master’s degree in health science in my late 20s. I have completed trainings and certifications in the area of workplace culture, well-being and professional speaking. I’ve worked with mindset, performance, improv, writing and vocal coaches who have helped me show up more fully and boldly. 

Just over a year ago, I started to more intentionally pursue training that would ultimately give me the confidence to start my own business as a professional speaker and trainer. I’m grateful for all the opportunities I’ve had to grow and learn and will continue to pursue growth by challenging myself and immersing myself in new ways of thinking.

WF: How has your career changed?

Druckenmiller: I started at a small company as an intern in 2003 and transitioned to full-time in 2007. It was there that I had the freedom to become an intrapreneur, someone who has many of the traits of an entrepreneur but does so within a company and with a stable paycheck and benefits. I started primarily as a consultant working for an employee benefits consulting firm. I’ve morphed into a thought leader in the field of well-being and a speaker who is focused on humanizing the workplace. Last year, I made the decision to follow in my parents’ entrepreneurial footsteps and launch my own company as a speaker and trainer. I’ve never felt more fulfilled or free. It’s been wonderful.

WF: What are some of the changes you’ve seen in HR over the past few years? 

Druckenmiller: I’ve been encouraged to see the trends toward humanizing the workplace and putting people first. For a while, it seemed that policies, procedures and perks were what mattered most, but much of that was surface-focused. HR was tasked with “fixing” workplace culture, but we’ve now come to realize that it’s not just HR’s responsibility, it’s everyone’s responsibility to shape the culture of their organization. HR recognizes that having a great culture goes beyond the perks like ping pong tables and rock-climbing walls and is really more about how we can make people feel seen, heard and valued. 

I’m seeing more of a focus on creating memorable and meaningful experiences from employees throughout the employee life cycle. Whether they’re using scavenger hunts as part of the onboarding or team building process or incorporating more pulse surveys to gather ongoing feedback, there is more intentionality than ever before. HR is committed to fostering connection, especially among dispersed workforces. Using video conferencing technology allows remote workers to feel more connected and to see their colleagues. 

I’m seeing HR become more integrated into the strategic discussions within their organization instead of being viewed as “the people police” in their own little silo. They’re being incorporated into more learning and development conversations and strategies, as companies embrace more customized, micro-learning approaches. They’re often the ones bringing attention to the importance of upskilling in the area of emotional intelligence, something that is lacking among many leaders today. The strategies progressive HR leaders are putting in place are helping organizations brand themselves as best places to work and employers of choice.

In the field of well-being, which has been an increasingly important aspect of HR strategy, there has been a shift. The focus is on the value of investment and genuinely caring for people’s well-being instead of just focusing on the immediate financial return on investment. I’m grateful to see that shift. I’m also encouraged that HR and other business leaders are embracing a whole person approach to well-being, one that incorporates financial, career, social-emotional, community and physical health components. The increasing focus on mental health, humanized parental leave policies, flexible work schedules and sabbaticals is exciting. It’s been a long time coming for us to truly put people first and to make decisions that will benefit all stakeholders, not just shareholders. Employees expect employers to care, and HR realizes that and sees the need to respond. 

WF: What advice would you tell yourself five years ago?

Rachel Druckenmiller, founder and CEO of Unmuted

Druckenmiller: Keep showing up. Sometimes we show up and don’t know that anyone is noticing what we’re doing, whether that’s speaking up in a meeting, creating and sharing content or coming up with new ideas. We don’t always see the immediate impact of our contributions, but the key is to be consistent. Keep showing up, even when you don’t feel like it. 

Trust yourself and trust the timing of your life. You have committed to years of training and development and honing your skills. You have an important message to share, and if you keep sharing it from a genuine place sharing with the intention of serving others versus serving your ego,  it will pay off. Everything will unfold in its proper time. What is meant for you will not miss you.

You will gain confidence as you continue to do your work. Do the inner work, do the relational work, be open to feedback and be open to changing what’s not working. Doing the hard work builds strength and will help you sustain yourself when things are hard. 

Spend more time with those you love. Work is important and it will always be there. There is always more work that you can do. But we can’t replace the moments we miss with the people we love. Go on weekend getaways with your husband and your friends. Have more lunches or dinners with your parents. If you are successful at work but depleted at home, then you are not going to be happy. Invest in relationships.

Ask for help when you need it. You’re not a burden. You’re not weak. You’re not going to be seen as incompetent. You are a human being who has limitations. Open up to people and share your struggles. Let other people help you and support you. Whether it’s seeing a therapist or asking for more support at work or at home, speak up for what you need. 

WF: What have you learned over the course of your career in HR?

Druckenmiller: Focus on the good in people. So often, HR professionals can become jaded because they’re often dealing with all of the dysfunctional aspects of a workplace. Remembering why we are in this space — to serve and support people and to create workplaces where people can thrive — can encourage us to keep going and to keep showing up.

Reach out to your peers when you’re struggling or need input or insight. You are not a burden and you deserve as much support as anyone else. You are a helper and giver by nature, but if you constantly pour out from your cup and don’t fill it back up, you won’t be good for yourself or for other people.

WF: What are some things that you value most about your career?

Druckenmiller: I have a platform that gives me the ability to use my voice to speak up, speak out and spark transformation at work that carries over to our lives at home. As a speaker and trainer, I’m finding that my messages around humanizing the workplace, igniting intentional leadership and unmuting our voices are resonating with people in all levels of leadership. It’s an exciting time to be in a field that celebrates and elevates the human side of work. As one of the founding members of the Baltimore Chapter of HackingHR and as a member of the online community Humans First, I’m encouraged to see all the good that is happening around the world as HR and well-being continue to evolve. 

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Answering the 6 most common questions about the Families First Coronavirus Response Act

COVID-19, coronavirus, public health crisis

In the past 48 hours, I’ve received a lot of emails and other correspondence asking questions about the Families First Coronavirus Response Act. Most of them fall into one of six categories.

1. I am a small business, and if I have to pay family and sick leave for my employees, I’ll go out of business. What am I supposed to do?

2. I work for a [large employer]. They don’t provide any paid time off. What am I supposed to do if I get sick, or a family member gets sick?

3. How does the interaction between the FFCRA’s paid family leave and paid sick leave work?

4. I understand the tax relief provision, but I operate a non-profit that doesn’t pay any taxes. What relief is there for us?

5. What about self-employed people? What relief is there for us?

6. If a business is forced to close because of COVID-19, what relief is there for its employees who lose their jobs, either temporarily or permanently?

Let me try to answer each as best as I can, understanding that there are no clear answers to any of this, and these issues are difficult and quickly developing and changing.
1. Small Businesses

COVID-19, coronavirus, public health crisisThere is no doubt that paid family and sick leave will impose a huge burden on the smallest of employers, especially since the only financial relief in the bill, the 100% tax credit for sick leave wages paid, is not a dollar-for-dollar match and only offers deferred relief.There is one provision in the bill, however, that may offer some help in the most extreme of circumstances.

The Secretary of Labor shall have the authority to issue regulations to exempt small businesses with fewer than 50 employees from the requirements of section 102(a)(1)(F) when the imposition of such requirements would jeopardize the viability of the business as a going concern.

This means that if the Secretary of Labor takes this up, he could issue regulations that would permit the smallest of businesses (under 50 employees) to claim an exemption if paid leave “would jeopardize the viability of the business as a going concern.”

Also note that under the same provisions, the Secretary of Labor could also pass regulations “to exclude certain health care providers and emergency responders,” meaning that these vital employees might not receive any paid FMLA or paid sick leave.

Stay tuned to see if this happens once this bill passes.

Finally, late last night, the Treasury Secretary announced that employers will be able to use cash deposited with the IRS to pay sick-leave wages, and for businesses without sufficient taxes from which to draw, the Treasury would make advances available.

2. Employees of Large Employers.

One of the most curious of the decisions this bill makes is to exempt employers with 500 or more employees. Here’s the editorial board of The New York Times, taking this decision to task.

Paying sick workers to stay at home is both good policy and good politics. Why not pass a bill that required all employers to provide paid sick leave and then force Republicans to explain their objections to the public?

The bill does require some employers to provide full-time workers with up to 10 days of paid leave. But the requirement does not apply to the nation’s largest employers — companies with 500 or more workers, who together employ roughly 54 percent of all workers.

All I can say is stay tuned. This coverage choice could be altered by the Senate when they take up this bill early this week, or it could be fixed by an entirely different piece of legislation. Or it can remain as-is, making the policy decision that large employers should offer these benefits without a government mandate. As the op-ed points out, according to federal statistics approximately 86 percent of employees at big companies already receive get some kind of paid sick leave. What I’d like to hear from Congress is why this 500-employee line was drawn? Was it a policy choice, the result of big-business lobbying, or with the knowledge that other legislation is on the way to close this loophole?

3. Paid FMLA vs. Paid Sick Leave.

There is a lot of uncertainly as to how the FFCRA’s paid-leave provisions interact with each other, but here’s my best read. The paid sick leave provision provides 80 hours of paid sick leave for full-time employees (or pro-rata for part-time employees) for COVID-19-related absences. The paid FMLA provision provides paid leave at two-thirds of an employee’s regular rate of pay for the number of hours the employee otherwise would have worked for the duration of a COVID-19-related FMLA leave, but the first 14 days of such leave can be unpaid. I’d expect most to substitute and run concurrently the paid sick leave during the initial unpaid portion of FMLA. Thus, the first 10 days of a COVID-19 leave will be paid at 100 percent of the employee’s regular rate as paid sick leave, and the remaining 10 weeks will be paid a two-thirds of an employee’s regular rate as paid FMLA. When an employer drafts or revises FMLA and paid sick leave policies, it should account for this overlap. Finally, please don’t forget about paid sick leave laws in your state or locality, which also might have something to add on this issue.

4. Non-profits.

I actually have some good news to share here. The tax credit offered by the FFCRA is against social security taxes, which, unless I misunderstand (and I’m not a tax lawyer), non-profits still pay on their employees. So, the tax credit provision will still off non-profit employers some future relief.

5. The self-employed.

This is, perhaps, the biggest issue. While the number varies wildly, there are anywhere between 50 million and 75 million gig workers. That’s a whole lot of self-employed people that this bill does not touch. What are they supposed to do? How are they supposed to earn if the economy shuts down? I wish I had the answer, but I have no idea. It’s a huge gap and huge problem, and absent specific government relief, these people are really going to be struggling, probably for a long time. That said, the tax-relief provisions also seem to apply to the self-employed. So that’s something.

6. Closures.

If a company is forced to shut its doors because of COVID-19, the Worker Adjustment and Retraining Notification (WARN) Act might apply if your business is large enough. It applies to employers with 100 or more employees. It mandates 60 days’ advance written notice (or if no notice is given or can be given, 60 days’ pay in lieu of such notice) before a “plant closing” or “mass layoff.” Please note, though, that a mass layoff does not occur, and therefore WARN does not apply, if the layoff is expected to be for less than six months. Because most expect this crisis to subside in less than six months, WARN likely will not apply to coronavirus-related layoffs. It will still apply to a plant closure if your business is large enough to meet the 100-employee threshold.

Also, keep in mind that some states have their own mini-WARN laws (California, Illinois, Maryland, New Jersey, New York, Tennessee, and Wisconsin, for example) that provide greater coverage. Ohio does not.

Finally, state unemployment compensation is available to employees who suffer coronavirus-related job losses. Ohio, for example, Governor DeWine is issuing an executive order so that unemployment insurance immediately covers workers who are displaced, even temporarily, by coronavirus, which will include a waiver any waiting periods to qualify and of the requirement that an individual seek work to collect benefits.

These issues are quickly evolving. I’m doing my best to stay on top of them and get everyone information as quickly as I can. Stay tuned. It’s going to a difficult time for everyone between now and when this crisis ends.

If your business needs FMLA or sick leave policies drafted, reviewed, or revised for anticipated FFCRA compliance, please let me know.

Also read: COVID-19 the role of businesses in a public health crisis? 

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Q&A with Nate Thompson: Reinventing the HR game

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Nate Thompson, vice president of strategy and innovation at OppenheimerFunds, said that in order to be successful in the HR industry, letting go of traditional approaches and learning how to adapt to change is a must. In this Q&A, Thompson reflects back on his journey through HR while highlighting his accomplishments and the most important lessons that he’s learned along the way.

Workforce: How have you grown professionally over the course of your career?

Nate Thompson: The biggest theme in my career has been reinvention. I pay close attention to disruptive trends, external and internal, and try to stay ahead of the game. This approach naturally helps me expand beyond a single function or discipline, such as HR. By bridging multiple disciplines — in my case tech, HR and transformation work — I dramatically increase my value as the organization inevitably changes. In my view, ultralearning and versatility are essential in a world that is changing faster than ever before. Whatever you are working on now is going to change dramatically very soon, so we all have to get comfortable with being uncomfortable.

WF: How has your career changed?

Thompson: Over 20 years ago, I started my career in technology and loved it, but quickly figured out that tech is highly perishable and technologists routinely hit a glass ceiling if they don’t build strong soft skills. That realization led me to leave one of the top tech companies in the country, Qualcomm, to voraciously pursue a suite of skills that are essential to being a strong leader today. After spending a decade in HR and learning and development work, I was uniquely prepared to take that work back into technology, most recently strategy and innovation. It really doesn’t matter how good you are at your specialty if you don’t understand the disruptive forces changing your industry and can’t see or influence the bigger picture. This is why I created and speak on a model called the well-rounded professional to help people evolve beyond being a one-trick pony. Again, when the world and industry are in a state of non-linear change, you can’t take a traditional approach and hope to survive as a professional or as an organization.

WF: What are some of the changes you’ve seen in HR over the past few years?

Thompson: To put it bluntly, traditional HR and traditional learning and development are dead. Today, we need a dynamic, digital and data-driven HR that is deeply aware of the disruptive trends, rapidly experimenting, learning and stepping up to be a strategic thought leader in organizations. This is scary, hard and requires a lot of courage. This is about helping to co-create a new shared strategic narrative, driving the future of work, culture transformation, experimentation, innovation, enabling alignment, engagement and empowerment, reinventing talent programs to enable autonomy, mastery and purpose, moving to real-time immersive cohort-based learning and ultralearning in future skills. That’s why some business leaders don’t want to work with HR and create backdoors. Future leaders in HR are humble enough to release the old idea of control and establish a growth mindset of dynamic strategic partnership with their various business partners. Future leaders in HR are humble enough to release the old idea of control and establish a growth mindset of dynamic strategic partnerships with their various business partners.

Nate Thompson, vice president of strategy and innovation at OppenheimerFunds

WF: What do you foresee in the future of HR? 

Thompson: HR is fighting irrelevance and the path forward has to be a fundamental transformation. This will be deeply inclusive of the future of work and the new technologies reshaping all industries. Technology is amazing and powerful, the most powerful organizations in the world are technology companies. In fact, almost every company is becoming a tech company because tech is the backbone and universal language of business. The most valuable resource in the world is data. But let me be clear, this is not about the shiny penny of technology. People are still the heart and soul of our world, communities and organizations. Culture is still the operating system of our companies and culture is the output of leadership behaviors. This is still deeply about people, leadership and culture transformation. HR has a remarkable opportunity to step out of the shadows, lead this transformation, help their organizations surf the waves of disruption and thrive in the future.

WF: What are some things that you value most about your career?

Thompson: Making a powerful difference in people’s lives. That’s what matters most. Inspiring people and helping them to achieve their potential while co-creating transformation — especially now. Leaders and employees are scared. The future is uncertain. What is next for me? What is next for us? What does it mean to be human now in an increasingly digital and automated world? We are wrestling with huge challenges and the future is undefined. While it is scary, this new era is such a gift. I openly admit that I don’t have all the answers, but I know that if I deeply care about people and create a space where we can authentically and transparently talk about what’s happening, we can come to a shared understanding and vision of the future, lock arms and navigate this new frontier together.  

WF: What advice would you tell yourself five years ago?

Thompson: Nate, people are going to say you are crazy, just know you are years ahead of where everything is heading. Go fast and be courageous because when the third decade in the 21st century hits, it will be glaringly obvious how far behind most are and how vital these years will have been in defining your approach to fundamental transformation.

WF: What have you learned over the course of your career in HR?

Thompson: HR leaders and professionals are good people trying to do good things, but the traditional approach has fallen too far behind. It’s time for a reckoning and revolution. There is no time to waste, this conversation of reinventing the function should dominate the HR conversation for the next five years. Let go of old HR dogmas, cut the old waste and irrelevant programs now, look outside for new ideas and spend your time reinventing in alignment with the disruption reshaping your industry and business. If your current HR leaders can’t lead that, you need to hire some inspiring leaders who can — and they might not come from HR.

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6th Circuit Court gives employers relief on the evidence employees must present to prove off-the-clock work

The difficulty in defending certain wage-and-hour cases is that employers are often asked to prove a negative.

“I worked __ number of hours of overtime,” says the plaintiff employee. “Prove that I didn’t.”

If the hours are for unclocked work, the employer often lacks documentation to refute the employee’s story. Which, in turn, leads to a case of “I worked/no you didn’t.” That, in turn, creates a jury question, the risk of a trial, and a settlement (since very few employers want to risk paying the plaintiff’s attorneys’ fees if the employee wins).

In Viet v. Le, the 6th Circuit Court of Appeals provides employers much needed relief from these extorting lawsuits.

For several years, Quoc Viet worked for Copier Victor, owned by Victor Le. Le treated and paid Viet as a 1099 independent contractor. When their business relationship soured, however, Viet sued for unpaid overtime under the FLSA, claiming that he was an employee owed overtime. The only evidence Viet submitted in support of his unpaid overtime claim was his assertion that each week he worked “60 hours per week.”

The 6th Circuit concluded that without additional substantiation, the employer was entitled to summary judgment.

The district court correctly held that Viet’s testimony was too “equivocal, conclusory, and lacking in relevant detail” to create a genuine dispute of material fact under Rule 56. Begin with Viet’s estimate of his average weekly schedule. He claimed that he typically worked 60 hours per week.… Viet did not fill in his general 60-hour estimate with specific facts about his daily schedule. Without Viet’s general estimate, his deposition testimony would leave a jury simply guessing at the number of hours he worked in any given week.…

All told, Viet could withstand summary judgment only if we adopted a legal rule that conclusory estimates about an employee’s average workweek allow a rational jury to conclude that the employee worked overtime.…

Viet argues that Le and Copier Victor failed to identify evidence showing that he worked less than 40 hours per week. Yet Viet bears the burden to prove that he worked overtime during every week for which he seeks overtime pay.

What evidence about the number of hours an employee works will suffice to create a jury question? According to the Viet court, a coherent description of “their day-to-day work schedules or the time it takes to complete their duties so that a rational jury could find that they worked more than 40 hours in the weeks claimed.”
They do not need to “recall their schedules with perfect accuracy,” but they must do more than “simply turn a complaint’s conclusory allegations about overtime work into an affidavit’s conclusory testimony about overtime work and expect to get a jury trial.”

A common-sense solution for a difficult issue. Go forth and litigate; Viet will provide much-needed assistance in FLSA cases.

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Recapping Ultimate Software’s 2020 conference: ‘An awkward date’

Ultimate Software airlines empty seats

Move forward. Faith. Trust.

That was the overarching message that I took away March 3 as I watched the opening keynote on day one of Ultimate Software’s Breakthrough Connections 2020 user conference in the cavernous Wynn Las Vegas and Encore Resort.Rick Bell Workforce

Less than two weeks into Ultimate’s merger with workforce management software provider Kronos Inc., the message of positivity was to be expected. And given Ultimate’s deeply ingrained people-first culture, maybe it wasn’t such a big ask of employees to believe in the process.

Moving forward seems the simplest to accomplish. As I tried to put myself in the shoes of an Ultimate employee, I couldn’t help but think, there isn’t much choice but to push ahead. Because try as they might, things will never be the same as they were pre-merger.

I give credit to Ultimate’s Chief Relationship Officer Bill Hicks for addressing the merger head-on during the opening session because frankly, that’s what most attendees wanted to hear about. Hicks, who has been an “Ultipeep” for 16 years, likened the post-merger atmosphere to that “awkward dating stage” when you are trying to figure out where the relationship is going.

I think that crystallized as Hicks, who in years past would have handed the microphone to former Ultimate CEO Scott Scherr or outgoing CEO Adam Rogers, instead introduced Ultimate’s new boss, longtime Kronos CEO Aron Ain, to the Sister Sledge tune “We Are Family.” It probably was asking too much to play George Michael’s “Faith” or Devo’s “Whip It” (with the lyrics “go forward, move ahead”).

Ain’s initial message to the assembled 4,500 combined Ultimate customers and employees preached the move ahead-faith-trust mantra. Ain, who became Kronos’ CEO in 2005, talked about his background, his philosophies and his legacy. “How I want to be remembered is as a great father, husband and friend, not a CEO,” Ain told the crowd. Touching.

Still, there were a couple of moments during Ain’s 20-minute talk to ease his new customers’ angst that gave me cause to pause.

“Your investment is safe. You made the right choice when you chose Ultimate as your partner,” Ain reassured the assembled Ultimate customers. OK, got it.

Then he asked for one favor. “Don’t listen to people calling you up now,” a clear reference to the inevitable phone calls that come in after a merger or acquisition. Of course there will be concerns on the part of customers after their HR software provider merges. If Ultimate did their jobs properly — and it appears that they have — a request to ignore competitors is unnecessary. It seemed a bit perplexing to me, as if he didn’t have the faith and trust in Ultimate’s sales and service teams.

And if we are being honest here, isn’t that what any competitor worth its salt is going to do? I mean, this is business.

Why not put forth your faith in your new team and trust that the relationships built over Ultimate’s 30-year history will endure?

Then Ain took aim at pundits. First, who is a pundit in HR technology? Was he lumping analysts, the HR influencer community, bloggers and business writers into one big melting pot of pundits?

I personally did not see blowback written after the merger’s announcement. Most of the experts and analysts I followed were taking the “wait and see” approach in their comments.

Yet Ain opted to tell us, “Pundits, give me my strategy. … They are not telling you the truth. They have another agenda, and look out for their best interests,” and added, “We will communicate honestly, we will tell you what’s going on. Trust is everything and makes everything else easier.”

He then curiously added, “Don’t read all the propaganda about Kronos.” In the story I wrote about the merger on the day it was announced, I stated, “Considering this is a merger of like organizations, the dreaded ‘duplication of efforts’ specter hangs heavy. Are layoffs, buyouts, rightsizing or downsizing in the future of this new marriage?”

I also pointed out, “With the meshing of cultures, perhaps no department or staff member will be downsized. Maybe they’ll reskill portions of their workforce. … For those of us who have been through a merger or acquisition, the reality is people leave. Some leave voluntarily because it’s not a good fit anymore, or they’re simply laid off. … I hope and pray that the people will retain their jobs and blend into one big, happy, 12,000-employee company with room to grow.”

I still stand by those statements.

The point was a bewildering dig at the media — sorry, the pundits — that we see all too often coming from this country’s overly emboldened leadership.

Merging Kronites and Ultipeeps: A few uncomfortable chuckles broke out when Ain referenced what post-merger employees might be called. Ultimate’s employees are known as Ultipeeps, while Kronos workers are Kronites. He said he received a suggestion: “Kronites and Ultipeeps … Kreeps. I don’t think that’s such a good idea.” 

Ultimate Software airlines empty seats

Coronavirus concerns: Before introducing Ain, Hicks immediately addressed another pressing concern of attendees — the growing threat of coronavirus. He noted that hand sanitizers would be placed throughout the conference — which they indeed were. Hicks also said that even a traditional handshake is under the microscope now, so to speak. How did he plan to greet people? “Some people are huggers, some are fist bumpers. I’ll do whatever you want.”

Clearly the coronavirus is having a huge effect on travel and is taking a toll what is typically a busy time during conference season. SXSW shut down. Oracle took its conference online.

My Monday afternoon flight to Las Vegas was barely half full. I don’t ever recall a flight where my row on both sides of the aisle was empty, as was the row in front of me.

And, word came during the conference that SAP Fieldglass canceled its mid-March user conference. This announcement came March 3 via Twitter:

“The health of our employees, customers, partners and communities is our top priority. Due to concerns surrounding COVID-19, we are cancelling #SAPAribaLive Las Vegas 2020 and look forward to seeing you at our upcoming Ariba Live virtual experience.”

What’s in a name: A bit of a surprise that the merged organizations have yet to settle on a new name for the company. Attendees were informed that the new name will be revealed in the next three to six months.

One observer pointed out to me that it could come sooner, possibly during the annual Unleash conference in early May. It is beneficial to have an assembled audience that will include a bevy of analysts and influencers for such an announcement.

Just a guess here that the new name won’t be Kreeps.

Bakersfield Beat: In a week of ups and downs, country singer-songwriter Dwight Yoakam’s performance March 4 was a high point. Yoakam performed for over three hours straight without so much as a sip of water. His show at the Wynn Theater in the Wynn Hotel-Encore complex was not affiliated with the Ultimate conference and came as a welcome diversion as Yoakam took the full house on a 70-plus-year musical journey laced with plenty of anecdotes across Southern California’s rich musical landscape.

Yoakam focused primarily on the legendary Bakersfield Sound that influenced so much of his own music. But his finale was a nod to Las Vegas (no, not a Brandon Flowers tune, although that would have been pretty sweet). “You can’t play Las Vegas and not play this one,” he said as he launched into Elvis Presley’s “Suspicious Minds.”

Thanks, Josh Cameron. I really, really enjoyed the show.

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FMLA obligations during the coronavirus outbreak

COVID-19, coronavirus, public health crisis

Jon Hymam, The Practical Employer employment law blog

COVID-19 is rapidly changing how businesses operate. We recognize that organizations need an extra helping hand right now. So we’re offering our platform for free to new sign-ups over the coming months. Sign up today and our Workforce Success team will gladly provide a personal, online walkthrough of our platform to help you get started.

Among other qualifying reasons, the FMLA allows an eligible employee to take 12 weeks of annual unpaid leave to care for a family member with a serious health condition. Family member, however, does not mean any family member. It only applies to an employee’s spouse, son, daughter, or parent.

The FMLA’s definition of “son or daughter” not only includes a biological or adopted child, but also a child of a person standing “in loco parentis” (one who has day-to-day responsibility for caring for a child without a biological or legal relationship to that child).

Suppose, however, an employee’s family member contracts COVID-19. Is that employee entitled to FMLA leave to care for that family member’s minor children during the period of incapacity? According to Brede v. Apple Computer (N.D. Ohio 1/23/2020), the answer is “no.”

Brede, a full-time member of Apple’s Genius Team at one of its Apple Stores, claimed that Apple fired him because he sought FMLA leave as in loco parentis to care for his niece and nephew because of his sister’s serious health condition. According to the court, Brede’s leave was not FMLA-covered.

The flaw in Brede’s FMLA claims on both theories is that … his requested leave to care for those children was not FMLA-qualifying. Brede does not allege that any of the minor children (who would be considered his daughter and sons under in loco parentis) are experiencing a “serious health condition” that requires his care. It is Brede’s sister that has the serious health condition. Even if Brede’s care of the children could be seen, by extension, as care for his sick sister (and Brede cites no legal authority for that proposition), the FMLA does not entitle an employee to take leave to care for a sibling with a serious health condition.

The Brede court got this issue 100% legally correct. Because the FMLA does not provide leave to care for siblings, it also does not provide leave to care for an ill sibling’s children.

In this time international medical crisis, however, let’s not lose sight of the fact that the FMLA is a floor, not a ceiling. Just because the law doesn’t require you to grant a leave of absence to an employee to care for the children of an ill sibling doesn’t mean that you can’t choose to offer such leave. As COVID-19 cases spread, employers are going to have to be nimble and flexible in their responses. The hypothetical spun from the Brede case is but one example of this necessary flexibility.
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Q&A with Dan Schawbel: How his career and the HR industry has changed

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In this Q&A, Dan Schawbel, managing partner of Workplace Intelligence and New York Times bestselling author, discusses the changes that have occurred throughout his career and the HR industry, as well as what innovations are to come in the near future. 

Workforce: How have you grown professionally over the course of your career?

Dan Schawbel: Every experience I’ve had and every person I’ve met has helped shaped my career path since I started over a decade ago. In my early career, I wanted to try everything and today I’m focused on what I’m best at and the audience I can add the most value to. Growth has given me clarity in my career.  

WF: How has your career changed?

Schawbel: In the first phase of my career, I helped individuals build their online personal brands, then I transitioned to focusing on managing a multi-generational workforce. Now, I’ve transitioned to topics like the future of work and being human in the age of technology. Throughout each phase of my career, my goal has been to advise companies while being a champion of the worker. By serving both audiences, I can make a bigger impact.

WF: What are some of the changes or trends you’ve seen in HR over the past few years?

Schawbel: The biggest HR trends over the past few years are the rise of employee activism, the use of artificial intelligence, the skills gap, the mental health, and loneliness crisis, internal mobility sustainability and the emphasis on the employee experience. 

Dan Schawbel, managing partner of Workplace Intelligence.

WF: What advice would you tell yourself five years ago?

Schawbel: The biggest advice I would have told myself is that change is already happening, even if it’s not universally seen and felt. The workplace trends we talk about are already happening and in order to prepare for the future, we have to adapt in the present.

WF: What have you learned over the course of your career in HR?

Schawbel: I’ve learned that almost everyone in HR has an unorthodox background, which makes sense because you can’t major in HR in undergraduate college. This means that all HR professionals have a unique lens that allows them to add value to workplace programs. 

WF: What are some things that you value most about your career?

Schawbel: I had two choices of career paths to pursue when I was focused on personal branding; marketing or HR. I chose HR because I wanted to help people achieve career success and I saw HR as the path to doing so. My theory is that if we improve the workplace, we improve a person’s entire life since one-third of our lives are spent working. 

WF: What do you foresee in the future of HR?

Schawbel: Based on my research, it appears that HR departments will be consolidated in the future. HR administrative roles will eventually be removed from the economy, while the more strategic roles will maintain as long as professionals build the right alliances in their companies. If you’re in HR and you feel like you’re working “like a robot,” you will more than likely be replaced by a robot. Think about getting experience outside of HR to protect your future within the industry.

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Not every mistake amounts to actionable employment discrimination

employment law, labor law, overtime records

Mistakes happen. Including in the context of employment decisions. But not every mistake amounts to actionable employment discrimination. That’s the lesson of this case, where Robyn Smith’s employer fired her after it wrongly concluded that she had been stealing from one of the company’s clients.

So starts the 6th Circuit’s opinion in Smith v. Towne Properties Asset Management Co.

The Practical Employer, employment law blogRobyn Smith worked as a community manager for apartment complexes. As part of her compensation, she lived rent-free on site.

Several years into her employment, Smith developed pseudotumor cerebri — a condition caused by spinal fluid pressure on the brain — the symptoms of which include migraines, blurred vision, vertigo, and short-term memory loss. She took several leaves of absence under the FMLA, all without incident.

Thereafter, a co-worker complained to management that Smith had been embezzling money by coding her gas and electric bills to vacant apartments. Following an investigation, Towne Properties fired her.

As it turned out, prior ownership had permitted Smith to have free utilities, a fact that no one had bothered to disclose to new ownership. Even after discovering its mistake, however, the company refused to reconsider its termination decision.

The appellate court concluded that the district court had properly dismissed Smith’s discrimination lawsuit. Why? Because, even though the employer’s reason for firing her turned out to be incorrect, it had an honest belief about it when it reached its decision.

To win on her claim, Smith must show (among other things) that Towne’s explanation for firing her was pretext for disability discrimination. In other words, that the neutral explanation is simply cover for a discriminatory motive. Smith can’t show a trialworthy dispute about pretext if Towne honestly believed that she was misappropriating utilities even if that belief turned out to be mistaken.

The court relied on the company’s investigation, including interviews of witnesses and review of documents, to conclude that “Towne made an informed decision based on specific facts.”

The “honest belief rule” is one of the most effective shields available to employers in discrimination cases. As long as the employer has an “honest belief” in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because, in reality, it is incorrect.

Yet, if you want to be able to argue that your honest belief justifies your decision, you must be able to support your claim. Contemporaneously-made documentation, coupled with corroborating evidence developed in a thorough investigation, is best. Courts are loath to second-guess employers’ business judgment, but will not hesitate if it appears an employer slacked in its investigatory responsibilities. Smith v. Towne Properties Asset Management is a good roadmap for employers to follow in claiming the protections of this rule, in the event a decision later turns out to be mistaken.

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Don’t encourage obsessive health behavior in your employees

stress, anxiety at work

There’s a difference between forming a healthy habit and developing an obsession. Sometimes I wonder if individuals or corporate wellness marketers realize this difference. 

Helping employees sleep better is a lifestyle change workplace wellness has taken on, but simply strapping on a sleep-tracker might not be your best bet to catch more ZZZs. In fact, for some people it may actually make their sleep worse. The New York Times looked into this phenomenon in July 2019 in the story “The Sad Truth About Sleep-Tracking Devices and Apps.” 

Personal tech columnist Brian X. Chen tracked his sleep using an Apple Watch and some software downloaded on his phone. He shared his own experience in this column and backed it up with research from Rush University Medical College and Northwestern University’s Feinberg School of Medicine.

“In their study, the researchers warned that sleep-tracking tech could provide inaccurate data and worsen insomnia by making people obsessed with achieving perfect slumber, a condition they called orthosomnia,” Chen wrote. Health apps don’t necessarily make people healthier, and this was just the latest research to show that. 

addressing behavioral health workplace
For some people, trying to “hack” their sleep, health or productivity can lead to stress or anxiety.

The story wasn’t completely negative and did also share some potential positives of certain sleep-trackers. While some users get in the habit of waking up in the middle of the night and obsessively checking their sleep patterns, others do say that using these apps genuinely helped them.

Still, this measured, balanced perspective was a valuable, realistic look at the potential behind this technology versus excessively optimistic marketing copy. The bottom line for users of sleep tech was this: “Sleep-tracking apps and devices can be useful for getting a broad look at your sleep, but people should resist drawing conclusions about their sleep health.” 

Just as there’s a name for people obsessed with getting perfect sleep, there’s also an eating disorder in which people are so obsessed with being healthy, that it makes them unhealthy. It’s called orthorexia, and it’s something we see in the wellness influencer community. What I wonder is if we also see it in the workplace wellness community. 

Also read: Eating disorders belong in your workplace behavioral health strategy

Psycom.net notes some of the problems it causes, including malnutrition, heart conditions and social isolation. “Orthorexia nervosa can easily go unnoticed because it does not seem unusual to be ‘obsessed’ with healthy eating during a time when researchers, health professionals, food marketers, and media seem to constantly change the definition of a healthy diet,” according to the site. 

I don’t believe this is out of the realm for employers because of how often organizations try to push wellness programs and the “culture of health” on employees, even the healthy ones who manage their health on their own terms. Not everyone needs to join a workplace program. It’s not necessary for people to do to be good at their job.

Also, for employers who have weight-loss programs at your company, it couldn’t hurt to ask yourself how employees are losing weight. Are they doing it in a healthy way or are they adopting an unhealthy string of diets? 

Finally, I’ll mention one more workplace obsession tangentially related to health: productivity. Think about the culture that exists in many organizations in which employees are always trying to do more in a better, faster way, looking for ways to “hack” their productivity and accomplish the most possible. Ultimately, they can’t hit this impossible goal, which can cause stress or anxiety. 

This is according to a thought-provoking LinkedIn post last month, and I completely agree. It referenced an article from “The Age” entitled “Why productivity hacks mostly don’t live up to their promise,” which dug into the “success industry” and how it ultimately can’t really make us feel successful. In the end, it makes us feel inadequate and distracted. 

The article quoted Vice Media’s Head of Innovation Mark Adams, who has a TED talk about the “cult” of extreme productivity. As you realize there are always more hacks and you can always do more, it creates a sense of chronic anxiety, he said. 

“It’s time to take a breath and accept that it is another trap,” he said. “This whole billion-dollar success industry … it doesn’t work.” 

I also enjoyed this quote from psychologist Marny Lishman: 

“The wellness industry has a lot to answer for – it’s pushing us to be busier, better and constantly dangling the pressure to reach our potential in front of us — when often the answer to wellness resides right inside of us in the enjoyment of the moment… A little chaos, a little adversity, mistakes and failures – all of these help guide us throughout life. We are missing out on these if we are life hacking everything.”

My message to employers based on all this is, rather than constantly trying to push your employees to be better, faster, stronger and healthier, think about the culture you’re creating. Do you have realistic expectations for how productive or health-conscious your employees should be? Or do you expect employees to be like machines that can be constantly upgraded with no impact on their well-being? 

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What “Sexy Vixen Vinyl” teaches us about porn at work

fox news, porn at work

If you’re Fox News reporter Brit Hume, you have a lot of explaining to do. Yesterday, the venerable journalist carelessly tweeted out his internet exploration of “Sexy Vixen Vinyl.”

fox news, porn at work

Some would say Hume made an innocent mistake. Trying to share a story on updated election odds, he tweeted a photo of his screen forgetting about his list of open tabs. I’d say that the fact that he was looking at “Sexy Vixen Vinyl” at work eliminates any innocence in this mistake. That website simply has no place in the workplace, period.

That said, I can guarantee that Brit Hume is not the first employee in history to surf over to “Sexy Vixen Vinyl” on a work computer. This is as good a time as any, therefore, to review your “workplace pornography” policy. While you might not have this policy per se, you should have an “internet use” policy, which should address each of the following—

1. What does your internet-use policy say, does it include prohibitions against pornography, and does it sufficiently and clearly explain that violations will result in discipline, up to and including termination?

2. Do you block websites that might include adult material, or do you trust employees to their own devices? Keep in mind that if you opt for the latter, many adult websites are rife with malware, viruses, and other things that you likely don’t want on work equipment. Also keep in mind that if you opt for the former, you may need to provide for work-related exceptions (like an employment lawyer researching a case, and I speak from experience).

3. If you are overly concerned that your workplace is rife with porn, you could opt for a porn audit, examining all of your technology assets for inappropriate material.

4. Once you become aware of any pornography in the workplace, your obligation as an employer kicks in to promptly investigate and implement reasonable corrective action. Failure to act could subject you to a nasty and expensive sexual harassment lawsuit.

5. Finally, if your investigation leads you to believe that the pornography involves illegal activity (e.g., children), immediately stop and call your lawyer, as this is a serious issue that needs serious treatment.

Also read: What you can learn from the law firm partner suspended for watching porn at work

Also read: Could your company be liable for child-porn viewing?