Category: Commentary & Opinion

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Diversity Consultants Are Healers, Not Magicians

I was on the phone with one of my favorite colleagues debriefing a recent client engagement.

We’d done a series of focus groups for an organizational assessment and we’d gotten some fantastic data and comments.

“They’re such a great client!” my colleague exclaimed. I enthusiastically agreed.

That exchange got me thinking about great clients. What makes them “great” to work with? And what are the consequences when a client isn’t “great”?

Consultants are here to serve clients, yet we are most effective when clients help us help them. Being a “great client” doesn’t just matter when working with diversity consultants — it matters in engaging any external partner for leadership development, organizational strategy or change management. However, sometimes those leaders engaging diversity and inclusion consultants are less experienced in how to work with external professionals.

What makes clients great to work with — and more successful afterwards as a result — are the following three behaviors:

Trust the consultant. Clients who are unable or unwilling to be fully transparent inhibit the consultant’s ability to serve them and do an excellent job. Even pre-contract intake conversations are confidential, and an ethical consultant will ensure their client’s data, documents and personal disclosures are kept private. If you’re wary, have the consultant sign a non-disclosure agreement, but just as full honesty with your physician is critical to receiving the best health care, full transparency with your D&I consultant is critical to properly diagnosing your problem and getting meaningful results. Avoid keeping secrets from your diversity consultant even if they portray your organization in a less-than-flattering light.

Work at least as hard as the consultant. The consultant will eventually leave, and you will stay behind. Ultimately, you are the owner of the problem you have hired the consultant to help solve. Just as it’s up to you to follow your physician’s advice and change your behaviors to improve your health, you are responsible for implementing solutions and creating results that matter for your organization. Involve the right people in meetings with the consulting team, and enlist the right internal people to take on tasks. Follow up on action items by the agreed-upon deadlines. Communicate changes in priorities or key personnel to the consultant, as well as crises that arise during the project. Make it easy for the consultant to do their job well by executing critical functions they can’t, such as internal communications, scheduling and on-site logistics. It’s a waste of time, talent and budget to not ensure proper building access, fill focus groups, or brief stakeholders on the project goals.

Follow the consultant’s advice. Great clients hire excellent consultants because they need expertise they don’t have in-house. The fields of diversity and inclusion, organizational development, coaching and others require years of study and practice. When a consultant uses their expertise to provide recommendations, great clients often ask for clarification or provide necessary pushback. But just as a patient may not get good outcomes if they ignore a health practitioner’s advice, a client who does not heed their consultant’s expertise will not get the best results. Just as in health care, second opinions and questions are welcome, but great clients don’t waste their budget on consultants they plan to ignore or use as a scapegoat.

In short, great clients treat D&I consultants like healers, not magicians. Just like other types of healers, we partner with clients to understand their situation and context, diagnose the problem, co-create a treatment plan and provide support. We can’t do the work for the client just as the physician can’t heal the patient. The patient’s body does that with the right intervention and support. We can’t wave a wand and make the problem vanish, and we cannot fix it for you. Great clients get it, which is one of the reasons they can be so successful after working with great consultants.

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Is It Legal to Dock the Pay of Employees Who Skip a Political Rally Being Held in the Workplace?

Jon Hyman The Practical Employer

Has an employer violated the law if it docks the pay of an employee who skips a speech being given by President Donald Trump in their place of employment?

Over the weekend news broke of a Pennsylvania employer who had an interesting way to influence its employees’ attendance at a rally Trump was holding at their place of employment during the work day. Only pay those employees who show up.

“NO SCAN, NO PAY,” a supervisor wrote to his employees.

While attendance at the rally wasn’t mandatory, the employer told its employees that they would only be paid for the work day if they attended. Otherwise, they had the option to take a PTO day or take the day off excused and without pay.

While it sounds terrible to withhold pay for employees who choose not to attend a political event during the work day, just because it’s terrible doesn’t make it illegal.

Indeed, in all likelihood, there is nothing illegal about this practice. That said, I can envision a few arguments that could give this employer trouble.

1. You might jeopardize an exempt employee’s overtime exemption. One of the cornerstones of the FLSA’s exemptions is that the employee must be salaried. By definition, a salaried employee receives the same predetermined amount of money for each week worked. Employers can jeopardize exemptions by docking employees’ pay for hours or days missed from work. If an employer reduces an employee’s pay for hours or days missed in a week, the employee is not receiving a standard predetermined amount for all work performed during the week, and therefore no longer salaried. If an employee is not salaried, he or she cannot be exempt. Exemptions are bad things to lose, because it would make an employee eligible for overtime. Thus, paying an employee four-fifth’s of his or her salary for a four-day work week might jeopardize that employee’s exemption.

2. You operate in one of the few jurisdictions in which political affiliation discrimination is illegal. “Political affiliation” is not a protected category protected by any federal law. Still there are a few states that protect it under their own anti-discrimination laws. In California, for example, an employee docked because he or she chose not to attend a rally of a politician they did not support would have a cognizable claim for political affiliation discrimination.

3. You’ve violated an employee’s right under section 7 of the National Labor Relations Act to engage in protected concerted activity. Private employers cannot prohibit discussions by and among employees about wages, benefits, and other terms and conditions of employment. Therefore, if employees skip the Trump rally as part of a mass protest over how his policies impact the workplace, then it might be unlawful for their employer to dock their pay as a result.

Legal or illegal, however, you need to ask yourself whether coercing employees’ attendance at a political event is a legitimate business practice. How you answer the question of whether you think it’s OK to try to shape or influence your employees’ votes helps to define the kind of employer you are. Voting is an intensely personal choice. I don’t think it’s my business how my family members cast their votes.

I certainly don’t think it’s an employer’s business how its employees cast their votes. Voting booths have privacy curtains for a reason. Exercise some discretion by not invading that privacy of your workers.
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The Law Is a Floor, Not a Ceiling: Granting FMLA for Individualized Education Program Meetings

Jon Hyman The Practical Employer

Last week, the Department of Labor issued an opinion letter [pdf] making clear that covered employers must provide intermittent FMLA leave to eligible employees who need time away from work to attend meetings to discuss the Individualized Education Program (IEP) of the employee’s child.

Rather than discuss the opinion letter in detail, I’ll instead direct you my blogging friends — Jeff Nowak, Suzanne Lucas, and Eric Meyer — each of whom covered this story over the past few days.

Instead, I want to use my space today to make a broader point about the law in general.

According to the National Center for Educational Statistics, in 2017-18, 7 million, or 14 percent of all public-school students, received special education services under the Individuals with Disabilities Education Act. Among those students, 34 percent had specific learning disabilities. Many are on IEPs, and even more are on 504 plans.

What’s the difference? An IEP is made available through the Individuals with Disabilities Education Act, and applies to students with 13 specific disability categories, including, for example, ADHD and autism. 504 plans are more generally available under the Rehabilitation Act and apply to any student with a disability that interferes with the child’s ability to learn in a general education classroom. Both IEPs and 504 plans require a team effort to work. That team always should include the parent(s) or primary caregivers.

Managing a child with special needs is hard. Employment obstacles should not make it harder. A parent shouldn’t have to worry about whether their special needs child is receiving the educational support they need to thrive in school and whether they will have a job when they return from a school meeting.

Bravo to the DOL for applying a common sense interpretation to the FMLA to conclude that attendance at IEP meetings “care for a family member … with a serious health condition,” which is “essential to her ability to provide appropriate physical or psychological care to [her] children.” No employee should have to choose between their family and their job, and this opinion helps ensure these protections.

Yet, with or without the FMLA, all employers should be offering these small amounts of time off. The law is a floor, not a ceiling.

I can hear the protesting cries: “We can’t give every employee time off for every little thing they need. They’ll take advantage of us.”

Seriously? An employee is not taking advantage of you by taking a few hours to meet with the educational team for their special needs child. If you are that worried that an employee is taking advantage of a situation, then deal with that employee.

But don’t deny the time off to all employees just because one employee has taken (or might take) advantage of you. It’s a performance issue specific to one employee. And, if employee leave abuse is a systemic problem throughout your workforce, you should take a look at what you’re doing wrong. Maybe it’s you and not your employees.

Employers, we should be better than this. We have to be better than this. We are better than this.

Don’t do the bare minimum that the law requires. Strive to do more. Make yourself an employer of choice for your employees. You’ll attract and retain better employees who will work harder for you. Don’t just try to reach the floor, but establish your own ceiling.

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EEOC Settlement Teaches Lesson on Extended Leaves of Absence as ADA Accommodation

Jon Hyman The Practical Employer

An employee tells you that he was recently diagnosed with prostate cancer and needs a few weeks off for treatment, surgery and recovery.

Assume either you’re not an FMLA-covered employer or that the employee is not FMLA eligible.

Do you …

(a) Fire him.

(b) Deny the request and force him to quit to have the surgery.
(c) Grant the request, but ask the employee to provide medical information supporting the disability, the need for time off, and an expected return-to-work date.

I hope you picked “c.”

An Atlanta distributor of industrial supplies chose “a,” and it cost them $75,000 to settle an EEOC lawsuit. From the EEOC’s news release:

“Medical leave is a widely recognized accommodation, and in Mr. Smith’s case, could easily have been granted, preventing the firing of a valuable employee. However, instead of accommodating him, Vallen fired him less than 24 hours before his surgery,” said Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office. …

Darrell Graham, district director of the Atlanta office, said, … “An employee should not be forced to risk termination for seeking leave to treat a medical condition, which can be a perfectly reasonable accommodation under federal law.”

Takeaways?

1. Unpaid time off can, and often does, qualify as a reasonable accommodation under the ADA, whether or not the FMLA applies. Moreover, if you fail to consider it as a reasonable accommodation, you’ve likely violated the statute.

2. Firing someone who asks for a few weeks off for cancer surgery is awful. It’s even more awful if you wait until the day before the surgery to do the firing.

3. Given the egregiousness of the violation, $75,000 seems light (although I don’t know all of the particulars of this employee’s damages).

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It’s Inexcusable for an Employer NOT to Have an Anti-discrimination Policy

Jon Hyman The Practical Employer

There are some employment policies that you can get away with not having. An anti-discrimination policy is not one of them.

In Hubbell v. FedEx SmartPost (decided Aug. 5 by the 6th Circuit), FedEx learned this lesson the hard way.

Sheryl Hubbell worked for Defendant FedEx SmartPost as a parcel sorter. A jury concluded that it retaliated against her after she filed an EEOC charge alleging that her manager demoted her and ultimately fired her after telling her that “females are better suited to administrative roles and males are better suited to leadership roles.” A jury awarded her $519,550, reduced by the trial court to $415,60 (plus an additional $157,733.75 in attorneys’ fees).

This employer made a lot of mistakes that caused this large judgment, but one of the biggest was that it did not have an anti-discrimination policy until 2013, one year after Hubbell claims she started suffering retaliation.

Several of Hubbell’s managers testified that FedEx had an anti-discrimination policy and that they had been trained on this policy. Jessica Benjamins, FedEx’s corporate Human Resources manager, also testified as to FedEx’s anti-discrimination policy. She testified that FedEx conducts annual online “diversity inclusion training” for managers. And she testified that it has long been FedEx’s policy not to discriminate. But FedEx only promulgated a specific policy on non-discriminatory hiring and promotion on November 26, 2013—after Hubbell was demoted and filed her first EEOC complaint.

So here’s your homework assignment. Open your employee handbook. Turn to the table of contents. Look for the policy that says, “Discrimination.” If you can’t find it, call me.

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When an Employee’s Religion Clashes With an Employer’s Dress Code

Jon Hyman The Practical Employer
A Muslim woman is suing the hospital at which she works as medical assistant, claiming she was told she needed a “note from the Quran” when she asked for an exception to the hospital’s dress code to wear a face covering during Ramadan.

The case, Boyd v. Cooper University Hospital, is pending in federal court in New Jersey. While it’s just filed and years from resolution, we can use it to learn how an employer should react when a employee dons religious garb in the workplace.

Title VII requires that an employer reasonably accommodate an employee’s sincerely held religious belief. This accommodation includes exceptions to an employer’s dress code or grooming policy.

According to the EEOC, an employer may not “automatically refuse to accommodate an applicant’s or employee’s religious garb or grooming practice if it would violate the employer’s policy.”

Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business. … For purposes of religious accommodation, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer’s business.

There are limits, however, and an employer may “bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns … but only if the practice actually poses an undue hardship on the operation of the business.”

The employer should not assume that the accommodation would pose an undue hardship. While safety, security, or health may justify denying accommodation in a given situation, the employer may do so only if the accommodation would actually pose an undue hardship. In many instances, there may be an available accommodation that will permit the employee to adhere to religious practices and will permit the employer to avoid undue hardship.

While we have no idea how the Boyd case will play out, it nevertheless serves as a great illustration of the need for employers to consider exceptions to dress codes as reasonable accommodations for employees’ sincerely held religious beliefs, and the risks that occur when employers skirt this obligation.

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A Blog to Change the Game

Workforce Game Changers

Hey, Game Changers!

Yeah, I’m talking to you, Pritika Padhi (Game Changers Class of 2019), and you, Jason Hite (Class of ’16) and you too, Monica Sauls (Class of ’13) and Tiffani Murray, who was among the 11 recipients in our inaugural class of Game Changers in 2011.

We are launching a blog specifically dedicated to you, for you and by you! It will be a community blog that all Game Changers can post to. And it can be on any topic under the people management umbrella.

We now head into a decade of Game Changers, our awards program recognizing workforce management professionals under 40 who are pushing the field forward with innovative people-management practices.

For the first time in the program’s history, our judges selected 40 Game Changers in 2019. While the majority works in the United States, numerous winners also span the globe, from Nigeria to Norway to Bahrain, as well as several winners from across India.

The thread that ties this year’s winners with all past recipients is that their efforts engage employees and help their respective companies succeed.

And while Game Changers is a 40-under-40 program, our first couple of classes are pushing 50 years old now. Crazy to think how time flies.

Game Changers
Jason Hite, a 2016 Workforce Game Changer.

No matter what year you were named, consider your area of game-changing expertise as a starting point. Think broadly about how HR affects the workplace, and how the workplace affects HR. What is unique to HR practices in your geographical area? Are there news issues affecting HR? Are there big-picture workplace issues you’d like to address? These are all topics to blog about.

Now, we have lost touch with a number of our past winners. Job changes, shifting from one content management system to another, lost Excel docs(who uses Excel anymore right? All about Google docs in 2019!). Whatever the reason we want to reconnect and maintain you as a Workforce thought leader.

We want to ask you, our vast audience, to help. If you have a colleague who was recognized as a Game Changer please let them and us know! Our contact information is below.

You Game Changers can blog up to once a week if you’d like, or as often as time allows, or even never. It’s just that as young, up and coming thought leaders in your field, this is an opportunity to engage and enlighten our readership (and do a bit of personal brand-building, as well!). As of right now we’re planning to title the blog simply “The Game Changers.”

international HR Game Changers Pritika Padhi and Dharshana Ramachandran, India
Pritika Padhi, left, and Dharshana Ramachandran, 2019 Workforce Game Changers.

The parameters are simple. Word count is between 450 and 850 words (if you have an amazing idea worth more words, just ask; we’re pretty lenient); no outright promotion of a company or product; write in a persuasive, op-ed style (first person is fine if you’d like); and have fun with it! Blogs are supposed to be engaging and spur discussion, so engage and spur some discussion!

When you file your blog, please send it to me, Rick Bell (rbell@humancapitalmedia.com), and my Workforce colleague Andie Burjek (aburjek@humancapitalmedia.com). In the email subject line please use: Game Changer blog post: (your name) and a 4-6 word descriptor of the content (i.e., mentoring can be beneficial to recruiting). Andie or I will edit and post as quickly as we can.

Oh, and please include tagline similar to this: Jennifer Benz leads Segal Benz, a national leader in HR and employee benefits communications. She was honored as one of Workforce’s Game Changers in 2013. Contact her at jbenz@segalbenz.com or follow her on Twitter at @jenbenz. Yes indeed, our esteemed “Benefits Beat” columnist is a member of the Class of 2013.

And by all means, we ask that you please share it on all of your social media channels once it posts.

We are planning to launch the blog the week of Aug. 10. Feel free to contribute in the next couple of weeks so we have a well of content going into the launch.

Any questions, comments or thoughts just drop a note to Andie and me.

Thanks, good luck and happy blogging!

— Rick Bell and Andie Burjek

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Do Workplace Bullies Violate OSHA?

Jon Hyman The Practical Employer

According to a study recently published in the Journal of Applied Psychology, bullying bosses make workplaces less safe.

Poor treatment from a boss can make employees feel that they’re not valued by a group. As a result, they can become more self-centered, leading them to occasionally forget to comply with safety rules or overlook opportunities to promote a safer work environment.

The headline made me think that if bullying contributes to an unsafe workplace, can it also violate OSHA? The answer is quite possibly yes.

While OSHA does not have a specific standard on workplace bullying, it does have a General Duty Clause. It requires that employers provide a workplace free from conditions that cause, or are likely to cause, death or serious physical harm to employees. It’s not a stretch to imagine bullying, or permitting the continued employment of a bully, to violate this duty.

Moreover, if bullying violates OSHA, then failing to have a policy against it, and properly training employees on that policy, also violates OSHA. It’s a potential triple whammy.

Arguing that OSHA covers bullying is not novel. At last year’s American Bar Association’s Labor and Employment Law Section annual conference, for example, one panel argued for OSHA coverage for sexual harassment. OSHA already covers workplace violence and the hazards that cause it, potentially including intimidation and verbal abuse. And, in 2011 OSHA adopted an anti-bullying policy for its own employees.

I’m not saying this is a clear-cut issue. In fact, I think it’s more likely than not that OSHA does not cover workplace bullying. But the fact that we’re having this conversation shows that this is an ongoing problem that employers need to address.

What can employers do? The Journal of Applied Psychology study offers three suggestions.

  1. Implement training programs that can improve leaders’ skills in interacting with their employees, so as to provide feedback and discipline in ways that are neither offensive nor threatening.
  2. Promote a more civil and engaged work environment that strengthens social bonds between employees and creates a buffer against the negative consequences of their boss’ bad behaviors
  3. Implement transparent performance evaluation processes so employees have less uncertainty about their social status in the workplace.
Or, you can just adopt my four-word workplace civility policy. Either way, tolerating and condoning abuse in the workplace, or worse yet, perpetrating it, cannot and should not continue, OSHA violation or no OSHA violation.
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Labor and Employment Lessons From the World’s Most Combative Stripper

Jon Hyman The Practical Employer
Meet Brandi Campbell, a stripper and self-proclaimed labor activist for other strippers nationwide.

She maintains stripperlaborrights.com, where she provides dancers with information about their legal rights, including their rights under the National Labor Relations Act. She’s filed (and won) unfair labor practice charges against clubs in Nevada, Minnesota, and Wisconsin, alleging that they discriminated/retaliated against her for engaging in statutorily protected activities and deprived dancers of their statutory rights by misclassifying them as independent contractors.

Her latest target is the Centerfold Club in Columbus, Ohio. A few weeks into her stint leasing space as an independent contractor to perform at club, she started sending letters to club management complaining that the club was violating her and other dancers’ rights by misclassifying them as 1099 contractors instead of as employees.

During that same time period, the club discovered Campbell’s website, and decided that it would likely be her next lawsuit target. Rather than wait around for that shoe to drop, the club terminated her lease after it discovered that she was touching customers in violation of Ohio’s “no-touching” law, which prohibits dancers from touching patrons while performing.

In Nolan Enterprises, Inc. d/b/a Centerfold Club, an NLRB administrative law judge concluded that the club violated Campbell’s section 7 rights by terminating her.

What lessons can we draw from this termination?

1. If it looks like discrimination, and smells like discrimination, then it’s probably discrimination.

According to the ALJ, there was “ample evidence of employer animus.” The club knew all about Campbell’s website and her prior Board charges and management discussed among themselves concern that was trying to set them up and planning to do to them the same as she had done to other clubs. To compound matters, the club admitted as much in its termination letter to Campbell.

You told people … that they could find “the Truth” about clubs and how to challenge the club on Dancers Stripper Labor Rights, your blog. We then found out your motives and read your web site that showed that your pattern and practice is to sue, destroy and lash out at people as I’m sure you will do to me and others when you read this letter. Please think before you act here. … We wish our lives to go our own directions and hopefully, not cross again. I know this is doubtful, since you invested time and effort to get a lawsuit out of something here for your blog, future newspaper articles or book.

If you tell someone you’re firing them for an illegal reason, then it’s probably the reason your firing them. A pretty easy call for the ALJ.

2. When trying to defend a termination, “show me” always trumps “tell me.”

The club had ample video of Campbell violating the no-touching law. What it did not have, however, was a documented track record of terminating other dancers for similar violations.

As its defense, Respondent contends that even if Campbell was engaged in statutorily protected activities, it still would have terminated her lease for violating Ohio’s no-touching law. … Based on my review of the evidence, I find Respondent falls well short of meeting its burden. … [C]onclusory testimony that other dancers were terminated for “illegal touching” does not satisfy Respondent’s burden, particularly considering all the evidence of animus that exists in this case.

In other words, show me, don’t tell me. It’s not enough to tell a judge or a jury that you don’t discriminate and treat all the same for the same misconduct. Without documentation to back it up, your explanation is likely worthless.

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

Jon Hyman The Practical Employer

According to the National Review, #MeToo killed the office romance.

It must be a brave soul who dares to strike up a flirtatious conversation at the workplace microwave these days. Only ten percent of Americans report having met their mate at the office, a level that is half what it was in the 1990s.

The article goes on to quote Ella Whalen, writing for Spiked.

But in the post-#MeToo office, unless you send a memo to the guy you fancy, signed with your consent at the bottom, it is understandable that he wouldn’t want to make the first move for fear of being hauled before human resources. While most normal guys are able to tell whether a woman likes them or not, the erasure of any ‘grey area’ in workplace interactions means more and more people are feeling nervous about taking the first step.

At Spiked, Ella adds

Companies are responding to the sexual-harassment panic by banning alcohol from office parties and instituting policies on how long and how close personal interactions should be. Bosses who hug their employees are even making headline news. …

It’s time to rebel against these attacks on workplace romance. So wear your lowest top to your next board meeting and linger too long by your colleague’s desk. We need to make the workplace a humane environment where sparks can once again fly.

Clickbait headlines aside, #MeToo hasn’t killed the office romance; it’s just killed the inappropriate office romance. The boss dating his (or her) subordinate. The co-worker that won’t take “no” for an answer. The improper or otherwise improper texter or emailer.

There’s nothing inherently illegal about co-workers dating each other. In fact, according to a recent survey, 31 percent of people who met and started dating while working together ended up getting married (to each other).

Still, there’s a lot that can (and sometimes does) go wrong when employees get romantically involved.

  • Conflicts of interest.
  • Extortion and blackmail attempts.
  • Uncomfortable conversations with HR and company attorneys explaining your love life.
  • Have to describing your employee’s private affairs in a deposition or, worse, to a jury.
  • Office gossip.
  • Love contracts.
  • The loss of respect from co-workers and management.
  • Facing termination for not disclosing a romance.
  • Harassment and retaliation lawsuits when someone other than an employee’s paramour gets passed over for a promotion, fired, or otherwise thinks you are playing favorites.
  • Harassment or retaliation lawsuits by a jilted partner when the relationship goes south.

Which doesn’t mean that employees shouldn’t date; it just means that employers need to understand that permitting office romances amplifies the risk of claims of discrimination, harassment, and retaliation, especially when the parties involved are a manager or supervisor and his or her subordinate.

The question, then, isn’t whether these relationship are illegal (they’re not), but how much risk you, as an employer, want to assume in the event a relationships sours, or other employees feels shunned or mistreated as a result.

  • Ban them outright?
  • Ban them only between a manager/supervisor and his/her subordinate?
  • Permit them with a signed agreement (the “love contract”)?
  • Do nothing and permit them across-the-board?
I recommend avoiding the first option and not banning them outright because of a knee-jerk reaction to #MeToo. That’s just lazy employee management. Not all workplace relationships are toxic or unlawful, and if you’re diligent in your anti-harassment training and other efforts, you’ll be able to spot, catch, and handle the ones that are.