Category: Commentary & Opinion

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NLRB Offers Significant Guidance on Its New(ish) Employee Handbook Rules

Jon Hyman The Practical Employer

It’s been just over 18 months since the National Labor Relations Board decided Boeing Co., perhaps its most significant decision in decades.

It rewrote more than a decade of precedent by overturning its Lutheran Heritage standard regarding when facially neutral employment policies violate the rights of employees to engage in concerted activity protected by section 7 of the National Labor Relations Act.

In Boeing, the board scrapped Lutheran Heritage’s “reasonably construe” test (a work rule violates section 7 if an employee could “reasonably construe” an infringement of their section 7 rights) with a test that balances “asserted business justifications and the invasion of employee rights” by weighing “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the requirement(s).” It was a huge win for employers drafting and issuing workplace policies.
In applying this balancing, the NLRB announced the three-tiered approach to analyzing the legality of employee handbook and other workplace rules.

Category 1: Rules that are Generally Lawful to Maintain, which, when reasonably interpreted, do not prohibit or interfere with the exercise of rights guaranteed by the Act, or the business justification for which outweighs any potential adverse impact on protected rights

Category 2: Rules Warranting Individualized Scrutiny, which are not obviously lawful or unlawful, and must be evaluated on a case-by-case basis to determine whether the rule would interfere with rights guaranteed by the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications.

Category 3: Rules that are Unlawful to Maintain, which are generally unlawful because they would prohibit or limit NLRA-protected conduct, and the adverse impact on the rights guaranteed by the NLRA outweighs any justifications associated with the rule.

Last month, the NLRB Office of General Counsel released its advice memo in Coastal Shower Doors (curiously dated 8/30/2018), which passed judgment on the legality or illegality of 10 different handbook provisions under the Boeing standard.
    1. “Obtaining unauthorized confidential information pertaining to clients or employees.” Lawful Category 1 confidentiality rule.
    2. “Rude, discourteous or unbusinesslike behavior; creating a disturbance on Company premises or creating discord with clients or fellow employees.” Lawful Category 1 civility/disruptive-behavior policy.
    3. “Soliciting, collecting money, or distributing bills or pamphlets on Company property by employees during non-working time, including rest and meal periods, is not restricted so long as such activity is in good taste.” Lawful Category 1 solicitation/distribution policy.
    4. “Un-business-like conduct, on or off Company premises, which adversely affects the Company services, property, reputation or goodwill in the community, or interferes with work.” Lawful Category 1 on-duty conduct rule, and lawful Category 2 off-duty conduct rule.
    5. “… all information gathered by, retained or generated by the Company is confidential. There shall be no disclosure of any confidential information to anyone outside the Company without the appropriate authorization. . . . nothing in this policy is intended to infringe upon employee rights under Section Seven (7) of the National Labor Relations Act (NLRA).” Unlawful Category 3 rule.
    6. “Disparaging, abusive, profane, or offensive language (materials that would adversely or negatively reflect upon the Company or be contrary to the Company best interests) and any illegal activities—including piracy, cracking, extortion, blackmail, copyright infringement, and unauthorized access to any computers on the Internet or email—are forbidden.” Lawful Category 1 civility and on-duty misconduct rule.
    7. “Employees should refrain from posting derogatory information about the Company on any such sites and proceed with any grievances or complaints through the normal channels.” Unlawful Category 3 rule.
    8. “Employees may not post any statements, photographs, video, or audio that reasonably could be viewed as disparaging to employees.” Lawful Category 1 civility rule.
    9. “Employees may not post to any on-line forums … providing any Company telephone number or extension. Do not create a link from any personal blog, website or other social networking site to a Company website without identifying oneself as an employee of the Company.” Part lawful Category 1 rule (as to self-identification) , and part unlawful Category 2 rule (as to telephone number ban).
    10. “The use of personal cell phones or other mobile devices is prohibited during working hours for personal use, including phone calls, texting and downloading of web content.” Unlawful Category 2 rule.
This memo, which delves into a lot more detail on each of the 10 policies, is required reading for anyone drafting, rewriting or reviewing an employee handbook, and offers great insight into how the NLRB will judge policies under its relatively new Boeing test.
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Why Was a Stadium Full of People in France Chanting ‘EQUAL PAY’?

Jon Hyman The Practical Employer

Indisputable fact No. 1: Women and men should earn the same pay for the same work.

Indisputable fact No. 2: The players on the United States women’s national soccer team earn substantially less than their counterparts on the men’s team

The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Substantial equality is measured by job content, not job titles.

The Act is a strict liability law, which means that intent does not matter. If a woman is paid less than male for substantially similar work, then the law has been violated, regardless of the employer’s intent.

This strict liability, however, does not mean that pay disparities always equal liability. The Equal Pay Act has several built-in defenses, including seniority, merit, quantity or quality of production, or any other factor other than sex.

Which brings us to indisputable fact No. 2, and the stadium chanting “equal pay.”

Two things of note happened in the U.S. soccer world on Sunday. The women won their fourth World Cup title, dominating the entire tournament, including the Netherlands 2-0 in the final. Meanwhile, the men lost the CONCACAF Gold Cup final 1-0 to Mexico.

The women’s team currently is engaged in a gender discrimination lawsuit against the United States Soccer Federation, claiming that the organization pays its male players way more than its female players. How much more? According to documents obtained by the Guardian, for example, each player on the U.S. women’s national team could receive more than $260,000 for winning the Women’s World Cup; each player on the men’s national team could earn more than four times that amount for winning the World Cup.

Last I checked, $260,869 does not equal $1,114,429. That’s a pay gap. Which could be legal under the Equal Pay Act, but only if it’s based on a factor other than sex. And this is where I plead ignorance. U.S. Soccer says that any pay differences are “based on differences in aggregated revenue.” I have no idea whether that’s true or false, but if true it might qualify as a “factor other than sex.”

What I do know, however, is that U.S. Soccer cannot justify these pay differences based on merit or success. The FIFA Women’s World Cup has been held eight times — the U.S. women’s team has won four of them, and has never placed worse than third. In the same time frame, the men’s team failed to even qualify for the 2018 World Cup and has never finished better than the quarter-finals (once, in 2002). The U.S. women have also won four Olympic gold medals, nine out of 10 CONCACAF Women’s Gold Cups, and are the No. 1 ranked team in world.

And, on the same day the women’s team won the World Cup, the men’s team lost the CONCACAF Gold Cup final (no offense to North American. Caribbean, and Central American soccer, but winning the CONCACAF Gold Cup is the equivalent of a AAA baseball team winning its league — it’s nice to win, but you’re not beating the best players on the best teams in world).

Based on results, it seems to me that not only should the women’s team be paid equally with the men’s team, but that there exists a great argument for the scale to be flipped, with the women’s team earning substantially more than do their male counterparts.

So, soccer fans and legal scholars, educate me. Why are the women paid so much less than the men?

I want to understand. Help me understand.

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There’s No Such Thing as ‘Reverse’ Discrimination

According to the New York Post, a Caucasian 20-year veteran attorney for the Legal Aid Society is suing her former employer for race discrimination. Among other issues in her lawsuit, she claims that she was denied a lateral move “because of ‘diversity considerations.’”
Do you know that some courts impose a different, higher legal standard for discrimination against white employees than for discrimination against African-American employees?

According to these courts, a non-minority employee asserting a claim of race discrimination must demonstrate background circumstances to support the suspicion that the defendant is that “unusual employer who discriminates against the majority.”

This is nonsense. Last I checked, EEOC is the “Equal Employment Opportunity Commission,” not the “Minority Employment Opportunity Commission.” A minority manager is just as capable of committing discrimination as a white manager. The law should not treat “reverse” discrimination any differently.

Discrimination is discrimination, period.

Applying different proof standards depending on the perpetrator of the alleged discrimination re-enforces the very stereotypes that our EEO laws intend to eradicate. Can we please remove from the law this idea of “reverse” discrimination, and just agree that discrimination is wrong regardless of the races of those accused of perpetrating it?

Also in The Practical Employer

The 12th Nominee for the Worst Employer of 2019 Is … 

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

Abortion Discrimination = Pregnancy Discrimination

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The FLSA Nightmare Behind Chipotle’s Bonus Program

Last week Chipotle announced a new bonus plan that could earn its employees up to an extra month of pay each year. Per the chain’s press release, the program is offered quarterly and can result in a bonus worth one week’s pay, calculated as an individual’s average weekly pay per quarter. To qualify for the quarterly bonus program, restaurant teams must meet certain sales and cash goals.

This bonus program has the potential to be a great way for the restaurant to break through in a tight labor market to attract talent. It also, however, has the potential to pose an FLSA nightmare. Bonus payments often count as part of a non-exempt employee’s regular rate of pay, thereby increasing the overtime premium owed to that employee.

Section 7(e) of the Fair Labor Standards Act requires the inclusion in the regular rate of pay all remuneration for employment—except seven specified types of payments). Non-discretionary bonuses do not full under one of those seven exempted categories. A bonus paid pursuant to an incentive program (like the program Chipotle just announced) is the definition of “non-discretionary,” and therefore must be accounted for in the calculation of an employee’s regular rate of pay for overtime calculation purposes.

For purposes of calculating the regular rate of pay, the bonus does not have to be included in its entirety in the week it is paid. Instead, an employer can apportion the bonus amount back over the workweeks of the period during which it was earned. The employee must then receive an additional amount of compensation for each workweek that he worked overtime during the period equal to one-half of the hourly rate of pay allocated to the bonus for that week multiplied by the number of statutory overtime hours worked during the week. If it is impossible to allocate the bonus, an employer can select some other reasonable and equitable method of allocation.

If a bonus payment already accounts for the overtime premium, then no additional payment is required. For example, a bonus plan may pay, as a bonus, a 10% premium of an employee’s total compensation, including overtime premiums. In this instance, the payment already covers overtime, and no additional overtime is required.

Like most wage and hour issues, the handling of bonus payments to non-exempt employees is complex, and presents a real trap for the unwary employer. If you are considering paying bonuses to hourly and salaried non-exempt employees, you should run it past employment counsel before making the payments to ensure you are not committing an FLSA violation in the mechanics of the bonus payment.

Also in The Practical Employer: 

The Customer Isn’t Always Right: The Museum of Sex(ual Harassment)

I Really Thought People Knew Better Not to Advertise Jobs ‘for Whites’

How to Fire an Employee

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The Employer’s Voice in the Future of American Health Care

shrm health care

I went to the Society for Human Resource Management’s annual conference in Las Vegas this past week with one very specific goal: Get a feel for what HR professionals are excited and worried about in the benefits space, especially regarding health care and the 2020 election.

Tracy Watts, senior partner at Mercer, began here health care presentation with her “favorite quote from the president”: “Nobody knew health care could be so complicated.”

shrm health care

This obviously got a lot of laughs from the audience of HR professionals.

Watts’ main message to employers in the course of her session was that employers, who insure 54 percent of the American population, have a vital role in helping to shape the future of the country’s health care. She cited that employers collectively spend about $668 billion annually on health benefits to cover employees and their dependents. “[Employers] have a bigger stake in this than anybody,” she said.

She also listed the health-related issues that different governing bodies can address and the ones that they’ve already begun to address. For example, the Trump administration has the ability to address HSA guidance, mental health parity, drug prices, HRA guidance and ACA Section 1557 nondiscrimination, and it’s currently addressing the latter three. Meanwhile, Congress has the ability to address the Affordable Care Act employer mandate, HSA reforms, drug prices, the ACA Cadillac tax and out-of-network “surprise” medial bills, and it’s currently addressing the latter three.

My question for employers: What power do you have to impact the health care environment? How are you currently utilizing that power? Where is there still room for improvement?

This session also gave me the opportunity to overhear gossip from the audience about the latest developments in the benefits space. For example, a major piece of health care-related breaking news had just happened in the past 24 hours: President Donald Trump announced his “Executive Order on Improving Price and Quality Transparency in American Healthcare to Put Patients First.”.

Meanwhile, more major changes were happening on the state level. California had just voted to reintroduce the individual mandate for health insurance. Also, a few women around me were expressing frustration about how difficult it is to keep up with what’s happening on the state level in the paid sick leave and paid family leave areas. They expressed exhaustion at dealing with “the nuance of state laws.”

Overall, the 2019 conference meant many HR folk were feeling confused and overwhelmed by the massive regulatory changes happening (or likely to happen) in the benefits space.

Also watch: Tracy Watts on the Executive Order and its Implications for Employers:

More 2019 SHRM Conference Coverage:

Brené Brown at SHRM Conference: ‘Leaders Are Never Quiet About Hard Things’

Exclusive Video Interviews from the 2019 SHRM Conference

The State of #SHRM19 Speech: Wait Until Monday

Day 2 at #SHRM19: It’s All About the Underutilized Talent Pool

SHRM Releases Annual Benefits Survey

Gary Kusher on Workplace Health Care Issues and the 2020 Election

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Do Employers Have a Duty to Protect Employees’ Personal Information?

data analytics, data privacy

Employees trust their employers with a whole bunch of personal information. Social security numbers, medical documents, insurance records, birth dates, criminal records, credit reports, family information, etc. And it’s not like employees have a choice over whether to disclose and entrust this information to their employer. These documents are all necessary if employees want to get hired, get paid, and obtain health insurance and other benefits. Thus, an employer’s personnel records are a treasure trove of PII (personally identifiable information — any data that could potentially identify a specific individual, which can be used to distinguish one person from another and de-anonymizing otherwise anonymous data).

For this reason, cyber-criminals target myriad businesses in an attempt to steal (and then sell on the dark web) this data.

Also in Legal: Biometric Privacy Lawsuits Rising

If a company is hacked, and employees’ PII or other data is stolen, is their employer liable to its employees for any damages caused by the data breach?

I’ve covered this issue twice before (here and here), with different courts reaching opposite results (albeit the majority of them concluding that an employer can be held liable).

In AFGE v. OPM (In re United States OPM Data Sec. Breach Litig.), the D.C. Circuit Court of Appeals recently addressed a similar issue, and concluded that employee-victims have standing to sue their employer following a data breach from which their personal information and data is stolen. A “substantial risk of future identity theft” is sufficient harm to give rise to a lawsuit, and the “their claimed data breach-related injuries are fairly traceable to [their employer’s] failure to secure its information systems.”

All of these cases are legally interesting, and, I submit, largely practically insignificant. Regardless of whether you, as an employer, have a legal duty to protect the personal information and data of your employees, you still have a significant financial and reputational incentive to take reasonable steps to maintain the privacy and security of the information.

Moreover, as data breaches continue to increase in quantity and quality, courts and legislatures will look for ways to shift the cost of harm to those who can both better afford it and better take measures to hedge against them. Thus, I predict that in five years or less we will have a legal consensus on liability.

The question, then, for you and your business to answer is what are you going to do about it now? The time to get your business’s cyber-house in order is now (actually, it was years ago, but let’s go with now if you’re late to the game). Don’t wait for a court to hold you liable to your employees (and others?) after a data breach.

Thus, what should you be doing?

  1. Implementing reasonable security measures, which includes encryption, firewalls, secure and updated passwords, and employee training on how to protect against data breaches (such as how not fall victim to phishing attacks).
  2. If (or more accurately when) you suffer a data breach, timely advising employees of the breach as required by all applicable state laws.
  3. Training employees on appropriate data security.
  4. Drafting policies that explain the scope of your duty as an organization to protect employee data.
  5. Maintaining an updated data breach response plan.

Remember, data breaches are not an if issue, but a when issue. Once you understand the fact that you will suffer a breach, you should also understand the importance of making the issue of data security a priority in your organization. The average cost to a company of a data breach in 2018 is $3.9 million (and increasing annually). While I generally don’t work in the business of guarantees, I will guarantee that any expenses you incur to mitigate the potential cost of a data breach is money well spent.

 

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Day 2 at #SHRM19 — It’s All About the Underutilized Talent Pool

It’s no secret that HR pros face a broad range of challenges every day. 

And if, like me, you were waiting to hear the broad range of topics that the world’s largest HR association is addressing from the organization’s CEO as the first full day of the Society for Human Resource Management’s annual confab dawned in Las Vegas, you were probably pretty disappointed.

That said, if you were eager to hear about the untapped talent pool consisting of the formerly incarcerated, people living with disabilities, veterans, and those people considered to be too old for the workplace, well, spending a little time at the general session Monday morning in the Las Vegas Convention Center was your little slice of heaven.

SHRM CEO Johnny C. Taylor Jr.’s mini-keynoter before the real keynoter Brene Brown didn’t shed new light on the direction of his 300,000-member-plus association’s present or future. He skirted any potential controversies and closely stuck to the message of building a more inclusive, diverse and empathetic workplace. It was a valuable message, no doubt.

#SHRM19
SHRM CEO Johnny C. Taylor

At times I felt like I was at a political rally. It’s clear that Taylor knows how to stoke an emotional response with videos and people’s up-close and personal stories. Taylor introduced four people representing underutilized pools of workplace talent to emphasize his signature push to put these people back in the workplace.

Taylor also reminded us that overlooking these potential employees not only causes them a disservice but tears at the “very social fabric” and causes harm for generations.

“Workplaces are where real social services begins,” Taylor said.

Taylor also noted that HR’s expanding role in talent acquisition is to remember that those who do not think, walk or talk like us deserve dignity of work. “As stewards we play huge role not keeping out wrong people but bringing in the right people,” Taylor said.

Then came a quick video set in a courtroom. The criminal was guilty and sentenced to life in prison.

That led to Alice M. Johnson, whose life sentence was commuted by President Trump after a push by Kim Kardashian, to walk onstage. Johnson, now an author, briefly and passionately told her story and offered a moving example of the second chance movement.

“There are so many more like me who are not so fortunate after serving their debt,” she said. “They were shut out and they only want to find their purpose in the dignity of work. HR pros like you can stop the cycle of poverty, you create a better world.” Her talk understandably drew a large round of applause.

#SHRM19
Alice M. Johnson, whose life sentence was commuted by President Trump, was a surprise guest during Johnny C. Taylor’s keynote speech. SHRM photo.

“Millions are waiting for opportunities,” Taylor said. “Put biases aside. They’re not just charity cases, nor superheroes. They need an opportunity. They can become leaders, change makers.”

Taylor followed up by introducing three people with physical disabilities.

Taylor called them ambassadors for changing workplaces, adding that people with challenges like mental health and ADHD need to be supported by HR in the workplace.

“We all bring layers of challenges,” Taylor said. “HR has a profound responsibility to do our best to support these people.”

Taylor recognized veterans and then addressed the challenges older workers face by being aged out of the workforce.

“Ageism is illegal and it’s damaging to the bottom line,” Taylor said as a handful of older people dressed in all black formed a semi-circle behind him. It was a bit melodramatic but drove home Taylor’s point.

“We place premium on youth,” he said. “Aging is seen as debilitating. Let these people in. Recruit older workers.”

Taylor then closed his keynote by pounding home the benefits of a diverse workplace. “Different is beautiful,” he exclaimed. “Eliminate discrimination any time we see it.”

While it was a feel-good speech filled with personal examples, Taylor’s 26-minute reminder to hire disadvantaged talent pools was merely an extension of the initiative he launched about this time a year ago at SHRM 2018 in Chicago.

No doubt it was a moving and emotional speech, but if I’m an HR leader I know we face a shortage of talent and that it’s time to get creative with our hiring. And as Taylor implored the assembled crowd to hire these people, all I could think of was the “yes, but …” that was likely running through many SHRM members’ minds — or potentially will be after they return to their workplaces.

Taylor chose to stick to a recurring theme during his one chance to address the assembled SHRM membership. While finding talent is an important topic, HR leaders face a bevy of challenges beyond hiring. Young employees drowning in student debt; soaring health care costs; the #MeToo movement, which unfortunately seems to be yesterday’s news. We also have a president who wants to eliminate the Office of Personnel Management, the federal government’s HR department.Want to advocate for a membership’s cause? My guess is SHRM has a fair portion of OPM employees as members.

Yes, SHRM19 provides plenty of opportunities to air out these issues with cohorts and gather insight during sessions to solve problems back home. But Taylor could have used his half hour setting a broad tone for the conference by touching on several hot-button HR issues rather than polishing what sounded more to me like a political speech on a single topic.

More 2019 SHRM Conference Coverage:

Exclusive Video Interviews from the 2019 SHRM Conference

The State of #SHRM19 Speech: Wait Until Monday

Brené Brown at SHRM Conference: ‘Leaders Are Never Quiet About Hard Things’

SHRM Releases Annual Benefits Survey

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The State of #SHRM19 Speech — Tune in Monday

It always seems like there’s a world-class soccer tournament simultaneously playing as the the Society for Human Resource Management opens its annual soiree.

Sure enough, the Women’s World Cup is on in France, and SHRM is opening in Las Vegas. And sure enough, Brazil and France were deadlocked 1-1 in overtime as Sunday’s opening session kicked off.

Timing wise that was fine because we should know who wins by the time Johnny C. Taylor Jr. gives the assembled HR faithful the annual CEO’s state of SHRM. Last year in Chicago, Taylor’s inaugural speech at the Sunday general session was a riveting blend of revival meeting and motivational speech about HR’s growing role in the workplace.

So, let’s check the boxes as we watch the first 20 minutes or so until Taylor speaks.

Huge conference space at the Las Vegas Convention Center? Check.

Record attendance? Oh yes … somewhere north of 20,000 people are here.

Glitz and glamour? Check and check. I mean, the opening act was iLuminate, a deft troupe that blends tech and theater. And the upcoming opening keynote was TV and media personality Martha Stewart.

Score still tied 1-1.

#SHRM19
SHRM CEO Johnny C. Taylor with Martha Stewart. SHRM photo.

Event emcee Melissa Dawn Simkins offered up a plug for the SHRM Foundation and we heard about new initiatives — the SHRM Studio and Convos & Coffee, a clever little lounge with a weirdly intuitive floor that asks questions about such things as ageism and diversity of your workplace.

France goes ahead 2-1. Still 7 minutes left. Yikes.

Simkins introduced SHRM Board of Directors Chairman David Windley.

Pleasant enough speech. Windley noted the 20,000 people in attendance this year, 1,400 of whom belong to the public sector and a large number who practice HR internationally.

Windley also noted how people spend a third of lives at work and that there’s a growing level of trust between employees and their employers.

“People are losing trust in institutions but not in their workplaces,” Windley said. “The employer is most trusted — 75 percent more than NGOs, media and government. Employers are the key relationship in peoples’ lives. So we have a serious responsibility,” Windley added.

France still ahead, 2-1; 2 minutes left. Annnnd, I lose the feed. Noooooo ….. .

Oh well, Taylor will be on shortly.

Windley continues about SHRM’s second chance push for formerly incarcerated people and how advisors are on hand at the conference for HR practitioners who want to learn more about what has been Taylor’s signature initiative. And there was polite applause as Windley mentioned companies signing a pledge to give people a second chance in the workplace.

Match over; France advances. Full attention now as Windley concludes his talk.

“Learn, share, go back and build better workplaces for a better world,” Windley said as the assembled crowd applauds.

Behind him people scramble to set up two chairs and a table for the upcoming chat between Taylor and Martha Stewart.

But … out comes Stewart. And Taylor. Big applause.

And my jaw drops. What?!? No Johnny C. Taylor state of SHRM talk? I get a text from a colleague. “No JCT???”

No whipping the crowd into a frenzy over the second chance initiative? No firing up the HR base over building better workplaces?

I mean, the CEO’s talk — whether it was Taylor’s predecessor Hank Jackson or even dating back to Sue Meisinger — occurred Sunday, since it’s the big chance for all SHRM members to hear from their CEO before they begin hitting sessions and the expo hall (not to mention Las Vegas). Instead they get the chairman of the board — and I don’t mean Frank Sinatra.

So, maybe you were happy with Taylor and Stewart kibbutzing for 90 minutes. I thought Stewart was disappointing and all about herself with just a passing mention of her own incarceration. What a great opportunity to forward Taylor’s prime initiative.

Call me a creature of habit. Perhaps if I had read the schedule a bit more closely I would noticed that Taylor is set to give his take on all things HR on Monday morning before keynoter Brene Brown takes the stage.

As one SHRM media person told me, “Johnny likes to mix things up.”

Indeed he does.

So, France moves on to play again. And, it appears, so do the rest of us to hear about SHRM’s current and future state.

More 2019 SHRM Conference Coverage:

Exclusive Video Interviews from the 2019 SHRM Conference

Day 2 at #SHRM19: It’s All About the Underutilized Talent Pool

SHRM Releases Annual Benefits Survey

Brené Brown at SHRM Conference: ‘Leaders Are Never Quiet About Hard Things’

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Is Blockchain the Next Frontier in Combating Sexual Harassment?

Jon Hyman The Practical Employer

Vault Platform has developed an app that uses blockchain technology to allow employees to document and report workplace sexual harassment on their smartphones.

“Interesting,” you say,” but what’s blockchain technology?”

Great question. I asked my partner, David Croft, who chairs Meyers Roman’s Blockchain & Cryptocurrency practice group. His answer: “Blockchains are decentralized databases, maintained by a distributed network of computers that rely on network effects and economic incentives to secure the network.”

In other words, blockchains are secure bits of data secured across a decentralized network of digital devices, for which the keys to unlock rely on every other block in the chain. Or, described another way (per Blockgeeks)—

A blockchain is a growing list of records, called blocks, which are linked using cryptography. Each block contains a cryptographic hash of the previous block a timestamp, and transaction data. By design, a blockchain is resistant to modification of the data. It is “an open, distributed ledger that can record transactions between two parties efficiently and in a verifiable and permanent way. …

A blockchain is, in the simplest of terms, a time-stamped series of immutable record of data that is managed by cluster of computers not owned by any single entity. Each of these blocks of data (i.e. block) are secured and bound to each other using cryptographic principles (i.e. chain).

Which brings us back to Vault Platform’s sexual harassment documentation and reporting app.

The app uses blockchain technology to provide a safe space or a “vault” allowing workers to write reports of harassment and store any evidence, says Neta Meidav, CEO of Vault Platform. The vault itself is private, she says, but at any time workers can use the app to send that information directly to HR. …

If workers decide to report harassment directly to their HR department they have two options, they can elect to individually report or they can choose to go together, Meidav says. By using go together, the platform will search for other complaints about the same individual. If others exist, then the reports will all be sent to HR together. If not, then it will be held until another employee reports that person. …

“The technology will identify if there has been past or present complaints about this person as well,” she says. “Your claim will go to HR with other people who have reported in the past.”

Blockchain has the potential to transform human resources management. It’s being used in hiring and recruiting, paying employees and contractors, tracking time and attendance, and verifying backgrounds (among other uses).

This post is in no means an endorsement of Vault Platform. I’ve never used it and don’t know of any company that has; everything I know about it is from reading its website and the few articles about it I found on the internet. That said, it is illustrative of how blockchain may, in the near future, disrupt HR.

If you are not at least investigating how blockchain technology can help you organization take its HR management to the next level and into the future, you are doing your business a disservice. Thankfully, I know a few attorneys who are at the ready to help.

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Employers, Stop Oversimplifying Your Employees’ Body Mass Index

Andie Burjek, Working Well blog

Conference season is exciting when you hear a solid debate, learn more about a topic you care about or discover a speaker who is a promising resource.

But it also means coming across speakers who sling dangerous or overly simplistic ideas to their audience, in this case employers. I want to take this opportunity to gripe about my biggest pet peeve(s) in the employer health and benefits space. These are ideas I’ve heard at several conferences over several years and/or have read in a good number of articles about.

Here’s the biggie: Workplace weight loss or nutrition programs that hinge on body mass index on an individual level, especially outcomes-based programs whose “rewards” rely on reaching a certain BMI or losing a designated amount of weight.

“BMI is useful when studying populations and trends,” according to Medical News Today. But it can only give a rough idea of an individual’s health and weight status. There are flaws in the formula.

This is important to point out because if employers want to continue to micromanage employees’ health, they should know the nuance behind certain health measures instead of blindly trusting wellness companies.

To be clear, I understand that obesity is a considerable public health issue in America. I understand that there can be health risks.

But it’s also an issue I feel employees should feel safe dealing with in the privacy of their doctor’s office rather than having to share private medical information with their employer. Also, I’m aware of the fact that people and organizations have misconceptions about BMI and weight that are important acknowledge. Here are some important facts to know:

  1. There’s a misconception that thinner people are healthier. This is not always the case, as weight is only one of many measures for health. (Northwestern Medicine)
  2. Using BMI gives us a false idea about who has weight issues and who doesn’t. (Northwestern Medicine)
  3. “It’s important to recognize that BMI itself is not measuring “health” or a physiological state (such as resting blood pressure) that indicates the presence (or absence) of disease.” (Harvard Health Blog)
  4. Plenty of people have a high or low BMI and are healthy and, conversely, plenty of folks with a normal BMI are unhealthy (Harvard Health Blog). [This fact might not be considered in certain settings. For example, the New York Times recently reported about how, even though women can still be healthy with a high BMI, fertility clinics often refuse to treat them.]

I don’t know if employers in general understand the limitations of BMI.

The American Journal of Managed Care published an interesting research paper in November 2015 called “U.S. Employee Wellness Programs and Access to Obesity Treatment in Employer-Sponsored Health Insurance.” Its primary results were that 16 percent of employers required wellness program participation in order to receive full health benefits (how employers do not realize that this is coercion and does NOT make the program voluntary is beyond me!). Further, while most wellness programs set targets for weight and for other health indicators, most organizations health plans did not provide coverage for evidence-based obesity treatments.

The paper concluded:

For people seriously affected by obesity, the coverage gap described here is problematic because substantial improvement in their condition is unlikely without evidence-based treatment. This is true because obesity and its complications are typically chronic and progressive. Wellness programs may have little impact on costs driven by severe obesity in the absence of access to effective treatment for this chronic disease.

This is one of my major issues with wellness programs: They should be treated as secondary to real, HIPAA-protected medical benefits. Adequate health care is important. A wellness program should not be a replacement for certain coverage areas in a health plan. Also, if an employee would rather deal with health issues (any health issue, not just weight) through their doctor rather than a wellness program, they should not have to lose the opportunity to get hundreds of dollars in “rewards” like wellness program participants do.

I enjoyed this Consumer Reports story about privacy issues on wellness program. Its basic argument is that wellness programs often pose major privacy problems and that people should have a choice on whether they want to participate. Financial incentives or insurance discounts muddy the waters and may coerce people into sharing medical information.

Why is the free choice to participate necessary? The goals and recommendations of a wellness program may not align with your personal health care decisions, the article noted.

“If something you’re being asked to achieve in your workplace wellness program is unhealthy in your doctor’s opinion, you shouldn’t be required to do it,” said one source, Dr. Anna Kirkland, professor of women’s studies at the University of Michigan. “Wellness programs should never replace or supersede your doctor’s advice.”

The final point I want to make is that bias against people who are seen as overweight or unhealthy does exist. This is more so for women than for men, unsurprisingly; women tend to experience higher levels of weight stigmatization than men, “even at lower levels of excess weight.” Some negative stereotypes against seemingly overweight people include that they are “weak-willed, lazy, unintelligent and gluttonous.”

Further, a research report about this, “The Impact of Workplace Health Promotion Programs Emphasizing Individual Responsibility on Weight Stigma and Discrimination,” was released in November 2018. The research identified workplace health promotion programs as “potent catalysts of weight stigma and weight-based discrimination, especially when they emphasize individual responsibility for health outcomes.”

This is a lot of information, but my main argument here is that employers shouldn’t look at employee weight and BMI in such a black-and-white capacity. Also, I want to stress the point that health plans (covered under HIPAA, unlike wellness programs) should cover evidence-based obesity treatments. Finally, as employers focus more and more on employee health, be aware that weight discrimination is serious and should never be tolerated.

Also read: Some Constructive Criticism on Wellness