Commentary & Opinion Archives - Page 23 of 85

September 20, 2019June 29, 2023

Balancing the 3 Types of Work-Life Balance

I did a candidate interview for an open position recently — during vacation on the beach.

Go ahead and fire up the comments about how my priorities are out of whack. About how I need to take care of myself.

I provide this nugget as a visual to the following reality. There are three types of work-life balance in the world. Two you can choose, one you must earn. All come with a cost. As an HR/talent leader, you should have a point of view on each because odds are they all exist to some extent in your company, but one probably defines your culture.

Let’s break down the types of work-life balance you must choose from:

You have zero work-life balance and zero flexibility. Not only are you working long hours but you’re also expected to be present in the office on the organization’s terms, not your own. You have zero flexibility about when you can leave and you have your smartphone next to your pillow at night.

This situation is relatively easy to find. Just change jobs a couple of times, don’t have boundaries about what you’ll accept and you’ll find the company and boss combination that can provide this quickly. NOTE TO THE KIDS: Sometimes you have to put in time in this situation to pick up the deep experience that can get you to a better place.

You have maximum work-life balance.Congrats! You have found a company and boss that respects your need for time away and even has an unwritten policy that they won’t reach out to you in the evening or on weekends. You come in at 8 a.m. and leave at 5 p.m. It feels good not to have to worry about the chaos after hours. Your time is your time. You found someone who respects that, so if it’s important to you hold on with all your might.

There’s just one little problem: If you hear a ticking sound, it might be the clock counting down on how comfortable you are. You see, progress on earth has rarely been moved forward by respecting labor’s need for an 8-to-5 schedule with a 90-minute lunch, so the tradeoff is that your manager may be mailing it in and putting you and your team at risk long term. Also, just know that by wanting the perfect 40-hour work-life balance, you’re opting out of the corporate version of “Game of Thrones.”

Of the three types of work-life balance in the world, two can be chosen, and one must be earned.

You get more done than the others, or you don’t get promoted or become unemployed. I know it’s harsh. But the ticking clock is real for many who feel great about their work-life balance. It’s all fun and games until you’re on the market as a candidate whose biggest accomplishment was achieving balance.

You have no flexibility and maximum flexibility all at the same time. Most of us would agree that a feature of great work-life balance is being able to leave work when you need to — a late lunch with a friend or an event at your kid’s school. If you have this ability, you agree this is tremendous, and for many of us, it’s the best part of any work-life balance conversation.

For the most part, it’s earned. You can’t put up walls and say you want a 40-hour week to get this flexibility. You have to earn it. The tradeoff for being able to leave any time you want is being indispensable, which in corporate America means your boss — who is likely a complete Type A — can ping you at 9:30 p.m. and get a quick answer.

It’s that access and iteration pace that alpha leaders want out of their people. If you’re looking for work-life balance, that’s the bad news. But if you’re looking for max flexibility about when and where you work and if you can go to the Thursday afternoon soccer game, it might be the type of work-life balance you seek.

As an HR leader, you’re in a tough spot. Odds are that you have jobs at your company with work-life balance flexibility in all three of these categories. But at the end of the day, you’re a performance coach as an HR leader.

You don’t define work-life balance alone at your company as an HR pro. That’s a team sport. But only you — the gifted HR leader who understands potential and life expectations — can customize career coaching for the individual employee in a way that matches their ambition.

That’s it, gotta go. Have another candidate interview coming up. Going to do it in the sun, by the pool. Then I’ll probably hit the beach.

September 16, 2019June 29, 2023

Love, Life and Career — Chasing the Trifecta

Stefanie Coleman

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

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

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

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

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

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

Good flexibility programs help employees balance the trifecta.

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

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

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

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

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

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

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

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

September 16, 2019June 29, 2023

Employee Fired for Stacking Intermittent FMLA Leave With Vacation Loses Retaliation Claim

Kevin LaBelle, a lab technician for mining company Cleveland-Cliffs, took occasional days off from work for approved intermittent FMLA leave for flare-ups related to a shoulder injury.

His employer noticed that LaBelle seems to always take his FMLA leave by combining it with scheduled days off and vacation days.

Noticing the pattern of suspected abuse, the company hired a private investigator to watch LaBelle during his FMLA leave, and twice found him playing golf. The employer concluded that if LaBelle was experiencing a shoulder flare-up that prevented him from working, he would not be able to golf, and that if he could golf, he could work. Accordingly, it fired him for FMLA fraud and abuse.

The 6th Circuit affirmed the trial court’s dismissal of LaBelle’s FMLA retaliation claim:

There is no evidence in the record to show that Cliffs’ proffered reason lacked a basis in fact. Cliffs approved LaBelle’s request for intermittent FMLA leave for two reasons: (1) attending medical appointments and (2) taking three days off per month for a “flare-up.” Even crediting LaBelle’s explanation of why it was ok for him to golf, or why he “stacked” his leave, LaBelle did not take FMLA leave for “flare-ups” or medical appointments. He took FMLA leave because he was in constant pain and would take leave around vacations or weekends to give himself as much rest as possible. But occasional rest to alleviate low-level background pain is not what his FMLA leave was for.… If LaBelle had constant pain that required occasional long weekends to mitigate, he should have requested FMLA leave for that purpose.

Intermittent leave is (one of) the biggest FMLA-management problems for employers. And the “stacking” of intermittent leave against other scheduled days off is one of the biggest intermittent-leave management problems. This case gives employers a great tool to combat this form of FMLA abuse.

September 11, 2019June 29, 2023

When Alcohol Is Involved, the ADA Distinguishes Between ‘Having a Disability’ and ‘Disability-related Misconduct’

Alcoholism is an ADA-protected disability.

Yet the ADA does not require that employers accommodate alcoholics by permitting them to drink, or otherwise be intoxicated, on the job.

Case in point? Dennis v. Fitzsimmons (D. Col. 9/5/19).

Jared Dennis was employed as a deputy in the Summit County, Colorado, Sheriff’s Office. He’s also an alcoholic. While on administrative suspension following his wife’s allegation of domestic violence, Dennis got drunk at home the night before his criminal arraignment. The following morning, he failed his intake breathalyzer. Thereafter, the Sheriff’s Office terminated him for, among other rules violations, conduct unbecoming of an officer and being impaired while on duty.

Dennis sued his former employer for disability discrimination, claiming that it fired him because of a protected disability — his alcoholism.

The court disagreed, and dismissed Dennis’s lawsuit.

It is generally recognized that alcoholism can constitute a disability entitling the employee to protection under the ADA…. The more difficult question is whether Deputy Dennis has come forward with evidence that his termination resulted from his disability, rather than his conduct.…[W]hen the disability at issue is alcoholism, the ADA … draw[s] a distinction between “having a disability” and “disability-caused misconduct.”

It is undisputed that the SCSO based its decision to terminate Deputy Dennis’ on the fact that he reported for his arraignment in an intoxicated state. Thus, there is no dispute that SCSO’s decision arose from his unsatisfactory conduct on the morning of July 28, not from his abstract status as an alcoholic. As noted, the ADA … do[es] not extend protection to actions of alcohol-influenced misconduct, even if the employee’s alcohol use is related to the disability of alcoholism. Accordingly, Deputy Dennis has not come forward with evidence that indicates that his termination was based on his status as a disabled person (as opposed to his conduct).

Addiction is a protected disability. But it does not mean you have to permit its use to accommodate the disability. Under the influence at work does not equal a disability, ever.

September 9, 2019June 29, 2023

NLRB Asks for Help to Overturn Some Foul-Mouthed Bad Decisions

Editor’s note: This post contains extremely graphic language in the context of the case described here.

“Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!!”

“Hey, did you bring enough KFC for everyone?” “Go back to Africa, you bunch of fucking losers.” “Hey anybody smell that? I smell fried chicken and watermelon.”

You’d think that if any of your employees lobbed any of these bombs at a supervisor or coworker, you’d have no legal issue if you fired them. And you’d be right … usually.

Except, in the first example, the employee ended his obscene tirade with, “Vote YES for the UNION!!!!!!!”

The latter example was directed by striking workers walking a picket line to African-American replacement workers crossing that picket line. According to the National Labor Relations Board, the employees’ rights to engage in protected concerted activity trumps all.

The NLRB, however, might be changing its mind on these rules. Last week, the agency invited briefs on the issue of how far the law should go to protect profane or obscene workplace statements.

The National Labor Relations Board requests briefing on whether the Board should reconsider its standards for profane outbursts and offensive statements of a racial or sexual nature. In a notice issued today, the Board seeks public input on whether to adhere to, modify, or overrule the standard applied in previous cases in which extremely profane or racially offensive language was judged not to lose the protection of the National Labor Relations Act (NLRA).

In the specific case at issue, a union committeeperson, while arguing about employee cross-training, told a supervisor that he did not “give a fuck about [his] cross-training” and that he could “shove it up [his] fucking ass.”

Specifically, the board is looking for input on five issues:

Under what circumstances should profane language or sexually or racially offensive speech lose the protection of the Act?
How much leeway should employees engaged in section 7 activity be given, when their language if profane or otherwise offensive to others on the basis of race or sex?
Should the Board continue to consider the norms of the workplace, particularly whether profanity is commonplace and tolerated, in judging the legality of these profane or obscene outbursts?
To what extent, if any, should the Board continue to consider context — e.g., picket-line setting — when determining whether racially or sexually offensive language loses the Act’s protection?
What relevance should the Board accord to anti-discrimination laws such as Title VII in determining whether an employee’s statements lose the protection of the Act?

I find all of the examples above to be abhorrent. The NLRB’s current rules require employers to suborn the worst degree of insubordination, or permit horrific racial or sexual harassment, all in the name of “protecting” employees section 7 rights under the NLRA.

These rules must change, and I am very optimistic that the board will craft a much fairer and equitable rule on this issue.

September 3, 2019July 12, 2024

Why ‘Ban the Box’ Doesn’t Work for Employers or Employees

Listen this clip from Ear Hustle (a podcast about “the daily realities of life inside prison shared by those living it, and stories from the outside, post-incarceration”), and then let’s chat about “ban the box.”

Last month, the 5th Circuit Court of Appeals upheld an injunction which blocked the EEOC’s guidance on criminal background checks is unlawful, and banned its continued implementation or use.

That injunction is significant for many reasons, not the least of which in that the EEOC’s guidance opined that employment applications that ask whether an applicant has ever been convicted of a felony violate Title VII on their face. Why? Because African-Americans and Hispanics are incarcerated at a rate significantly higher than whites.

The movement against employers asking this question on job applications is called “ban the box” — cleverly labeled after the “box” applicants are asked to check if they’ve been convicted of a felony. Nationwide, 35 states and over 150 cities have adopted these laws.

So what’s wrong with laws that are intended to give those with felony convictions in their background a chance at getting past the application stage of their employment search? The laws don’t work.

As illustrated in the Ear Hustle clip above, all that “ban the box” accomplishes is moving the criminal background check from the application stage to the formal background check stage. Employers that are pre-disposed not to hire felons are not going to hire felons. They will just ding them later in the hiring process — after the expense of a formal criminal background check. These laws aren’t changing employers’ minds or attitudes; they are just giving felons false hope.

Moreover, according to two recent studies, ban the box laws are causing more racial discrimination by improving the hiring prospects for Caucasians, while making them worse for African-Americans and Hispanics.

Thus, if ban the box laws either create a more damaging reliance on unconscious racial biases (as these studies suggest) or push the consideration of criminal backgrounds to later in the hiring process, where employers will still use them to disqualify candidates (albeit with higher transaction costs in the hiring process), why do we have them?

If ban the box laws aren’t working toward their intended results of opening job opportunities for ex-cons, then what should we do to achieve this laudable goal? I suggest a three-pronged approach:

1. Job training within the prison system to provide the incarcerated with transferable real-world job skills and a certification they can provide to a prospective employers upon their release.
2. Tax credits to incentivize businesses to hire these felons.
3. A privilege from negligent hiring and other liabilities for employers that hire certain felons for certain positions (i.e., we still don’t want sex offenders working in schools, but they might able to work in a manufacturing facility if they are otherwise qualified and sufficiently rehabilitated).

We need something to break the cycle of crime, and that something is jobs. Stable employment and steady income will help stem recidivism and keep people from returning to crime as a means of support. If ban the box isn’t working toward this goal, then local, state and federal governments need to abandon ban the box and look for other solutions to this problem.

August 29, 2019June 29, 2023

No, FMLA Does Not Grant You License to Threaten Your Co-workers

After being harassed by co-workers, Paul Ellis took to Facebook to air his grievances publicly.

Among his comments was one that could be perceived as a threat violence: “he’s gonna have an accident on the dock.” When another employee brought a printout of the post to their employer, FedEx, an investigation began. During that investigation Ellis admitted that one could perceive that comment as a threat. As a result, FedEx fired him.

Prior to his termination, Ellis frequently took leave under the FMLA to receive treatments for his chronic back pain and to take care of his sick mother. He alleged that FedEx retaliated against him for his use of FMLA leave by terminating him.

The 3rd Circuit Court of Appeals disagreed.

Ellis cannot demonstrate a causal link between his FMLA leave and his termination. He consistently used FMLA leave for two years without issue. Each time he called out sick, his supervisors covered his shifts, and each year that he applied for recertification, FedEx approved. It also actively accommodated FMLA leave for 42 employees between May 2013 and May 2017 at the Delanco service center.

Instead, FedEx terminated Ellis because it concluded he violated the company’s prohibition on workplace violence. He admitted to his supervisors that his Facebook message could be perceived as threatening, and he was fired shortly after the investigation concluded.

Many employees who engage in protected activity (such as taking FMLA leave) mis-perceive that their jobs are bulletproof. Nothing is further from the truth.

Yes, employers need to be diligent when firing an employee who has engaged in some form of protected activity. But, if you would fire the employee absent the protected activity, and have consistently done so with others under similar circumstances, why give an employee a free pass?

August 28, 2019August 28, 2019

What Sex Discrimination Will Look Like if the DOJ Legalizes Sex Stereotyping

Last week the Department of Justice (on behalf of its client, the EEOC), filed a brief asking the Supreme Court to conclude that “sex stereotyping by itself is not a Title VII violation.”

What might this look like if the DOJ gets its wish?

Consider the following story (as told on Reddit).

I’m a 21 year old female. I feel like I should say these thing about myself because these are usually what people ask or say when they find out I rarely shave my legs. I’m straight, I’m very feminine, and I just don’t like to waste my time or money on shaving my legs. Also I’m not a hairy person at all! …

[T]oday I had to go into the office to grab some materials and my boss was there in his office so I stopped to say hi before I left out. …

My boss then proceeded to tell me that a few people complained I didn’t shave my legs and they said it went against company policy that I wasn’t being hygienic. I was even more shocked.

I cannot fathom a Title VII under which an employer can enforce a workplace rule prohibiting hairy legs against women but not men. Yet, that’s the world in which we might live if the Supreme Court legalizes “sex stereotyping.”

The DOJ argued in its brief that “sex stereotyping is actionable only to the extent it provides evidence of favoritism of one sex over the other,” and that it “does not excuse the plaintiff from the fundamental requirement of proving that the defendant treated members of one sex less favorably than similarly situated members of the opposite sex.” Otherwise, says the DOJ, “countless sex-specific policies would be per se unlawful as based on sex stereotypes, “ such as a “dress code that required men to wear neckties.”

But isn’t that the very point of prohibiting sex-based stereotypes at work. The stereotype itself is the “evidence of favoritism of one sex over the other.” It is the proof that the employer “treated members of one sex less favorably than similarly situated members of the opposite sex.”

Also read: #MeToo Hasn’t Killed the Office Romance, Just the Inappropriate Ones

An employer that prohibits women, but not men, from wearing neckties is acting on a sex-based stereotype that a necktie is men’s attire, and not women’s attire. Similarly, an employer who requires women to shave their legs, while letting men grow it au naturel, acts on a sex-based grooming stereotype for no reason other than gender. The application and enforcement of a sex-based stereotype to the detriment of one sex over another is the “evidence of favoritism of one sex over the other.” No other proof should be necessary.

I am hopeful that the Supreme Court does right by LGBTQ employees and holds that Title VII’s prohibition against sex discrimination implicitly covers LGBTQ discrimination. If, however, these cases go the other way, I pray that the Court does not take the DOJ’s bait and rewind women’s rights by five or six decades.

August 26, 2019

Is a Vacation During an FMLA Leave Inconsistent With an Employee’s Serious Health Condition?

A few months ago I wrote about an employee fired for taking a fishing trip while out on an FMLA leave. In that case, the court upheld the termination as lawful. Recently, however, the Supreme Court of Massachusetts considered a similar case and reached the opposite result.

Richard DaPrato, an IT manager for the Massachusetts Water Resource Authority, took an approved FMLA leave of absence to have a tumor removed from his right foot. During the last few weeks of his leave, DaPrato took a previously scheduled vacation to Mexico with his family, a trip he took every year. According to DaPrato, he limited his activities during his trip based on the limitations imposed by his foot surgery.

When the employer learned of DaPrato’s Mexican vacation, its HR director launched an immediate investigation, which included obtaining video of DePrato lifting luggage out of a car at the airport. DaPrato maintained that he did nothing that was inconsistent with the limitations set forth in his FMLA medical certifications. Nevertheless, the company fired him for misrepresenting his disability.

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

DePrato sued for FMLA retaliation, which resulted in a $1.3 million judgment.

On appeal, the court affirmed, and had this to say about whether and when an employee on FMLA leave can take a vacation.

We clarify today that an employer may validly consider an employee’s conduct on vacation — or, for that matter, anywhere — that is inconsistent with his or her claimed reasons for medical leave, when the employer has such information at the time the employer is evaluating whether leave has been properly or improperly used.

Here, DaPrato took FMLA leave to allow his foot to recover fully from surgery. Such recovery could take place in a warm climate as well as in a New England winter. That being said, vacationing while on FMLA leave may take either permissible or impermissible forms. An employee recovering from a leg injury may sit with his or her leg raised by the sea shore while fully complying with FMLA leave requirements but may not climb Machu Picchu without abusing the FMLA process. Careful consideration of the reasons for the medical leave and the activities undertaken, including the timeline for rehabilitation and recovery, are required to determine whether FMLA leave has been abused.

What can employers learn from this case? Don’t make a knee-jerk decision to fire an employee who does something recreational during his or her FMLA leave. Gather the facts and make a reasoned decision over whether the activity is, or is not, consistent with the medical reason(s) for the leave. Fishing while recovered from hernia surgery might be a tough sell for the employee. Convalescing on the beach while recovering from foot surgery, however, might be a different story. Without all of the information and facts coupled with a careful deliberation of their consistence or inconsistency with the FMLA leave, however, you might have a difficult (and costly) time justifying a decision if challenged in court.

Also read: Which Mental Health Service Does the FMLA Not Cover?