Category: Commentary & Opinion

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8 Things to Expect From a Highly Competent Diversity Consultant

For 20 years, I’ve been a diversity trainer and consultant — as an internal employee, subcontractor for other firms and president of my own company.

Aside from providing excellent value to my clients, my goal has been to improve the reputation of my field by raising the bar on what organizations expect from diversity and inclusion work and D&I professionals. One way I do this is to educate potential clients about what they should look for in a consultant, and how to engage with them. Here are eight things I tell them to expect from a highly competent consultant that will get results that matter.

They will want to do some intake. Probably lots of intake. A highly competent D&I consultant won’t simply do a training session if that’s what you ask for. That’s “old school” and very likely a waste of your time and money (see When Diversity Training Is a Waste of Time and Employers’ Money). No ethical, highly competent health professional would write a patient a prescription for a medication they request without first conducting a thorough patient history, ordering lab tests and making a diagnosis. It’s no different with D&I practitioners, and the good ones are experts just like your physician. The consultant will want to ask lots of thought-provoking questions, talk to key stakeholders, and perhaps review your existing data or documents. If there’s no contract in place yet, it’s OK to ask them to sign a non-disclosure agreement before handing over your confidential information, but be prepared to share information openly. If you don’t, you hinder the consultant’s ability to identify your root problem, assess fit with their style and expertise, and make appropriate recommendations. It also gets your partnership off to an untrusting, inequitable start.

They will help you define your goals and outcomes. Every organization begins with some sense of their problem and what they want. The competent D&I consultant will help you figure out what you need. They will work with you to define your concrete, mission-critical goals. Diversity is not an end, it’s a means to an end that’s already top of mind for your organization and its leaders. An excellent consultant will help you figure out how to get results that already matter. Be prepared to answer questions like: What is your No. 1 pressing problem as an organization right now? Your major pain points? What’s keeping your senior leaders up at night? How do you want to go from good to great? What specifically do you want people to do, think or feel differently after this project? How will you know this project was successful? Having top leaders and key decision makers involved in the intake process ensures you’ll get the most robust, accurate answers. An excellent D&I consultant will help you tie D&I work to those goals and pain points to yield a high return on your investment of time, talent and budget.

They will recommend a solution that meets your goals. Training is only a solution if lack of knowledge and skills are the problem. Most organizations that request training don’t need it. What they usually need is help improving leadership, holding staff accountable, revising policies and procedures or gathering baseline data. Training may be one aspect of addressing systems flaws or leadership deficits, but rarely produces meaningful results on its own.

They will help you assess impact. Ask your consultant how they plan to demonstrate results and ROI. A highly competent consultant won’t be surprised by the question – they’ll be impressed. They should have a good understanding of quantitative and qualitative evaluation methods, including the four Kirkpatrick levels, and how to apply them. Make sure in your contracting that goals, deliverables and evaluation of results is included. At a bare minimum, I provide all my clients with a written report of results (including quantitative and qualitative metrics), my recommendations and concrete next steps. For long engagements, have regular mid-point evaluations to assess project effectiveness and adjust your plan if needed.

They have expertise outside of D&I. The best D&I practitioners have a background in organization development as well as D&I. Many have first-hand leadership or industry experience, while others are skilled at designing and delivering training. Some are certified or credentialed coaches, while others hold certificates in specialty models, assessment tools, or communication techniques. Ensure that your consultant possesses a robust yet relevant skillset that will add depth and value to your work together.

They run an effective business. Whether the D&I professional is an external or internal consultant, expect them to be reliable and professional. They should communicate clearly, be reasonably available, respond to messages, keep their word, honor deadlines, and avoid starting work without a clear and thorough written contract. They will set boundaries to ensure you stay within your contract, and don’t get too much of their time and expertise for free. They will handle invoicing and financial transactions smoothly, use technology effectively, provide any tax or insurance documents you require, and address your concerns with a customer service-oriented attitude.

They leverage their expertise and push back gently. Don’t engage a D&I consultant unless you’re willing to partner with an expert who will use that expertise. Their role is to set you up for success by providing sound advice and analysis, and to see what you can’t. They will ask questions or push back if you make an inaccurate interpretation or ineffective decision. Expect them to listen well and answer all your questions, but to direct you if you need direction. Don’t be shy to ask the consultant for research or best practices to back up what they’re recommending, or to explain what informs their opinions.

They walk the talk. No one is perfect, but it’s reasonable to expect a highly competent, ethical D&I consultant to speak and act more skillfully and inclusively than most when interacting across differences. They should read and stay current in D&I developments, be in regular reflection about their own identities and impact on others, and do ongoing “personal work” to disrupt their ineffective biases and improve their emotional intelligence. The way they engage with you, your staff, and the public (i.e. on social media and blogs) should align with their espoused values and the general goals of D&I.

A highly competent, ethical D&I consultant, who is also an excellent fit for your organization’s culture and current needs, is a critical partner in your ongoing success. Don’t treat this role as anything less, and keep your expectations high – you’ll be glad you did!

My postings on Workforce.com represent my own personal views and do not necessarily reflect the opinion of Korn/Ferry International, Futurestep, or any other organization with which I may be affiliated.

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Second Chances Versus the #MeToo Movement

The issues that HR face today tend to be divisive now. What’s fair? What’s appropriate? What even are the facts?

Coretha Rushing, senior vice president, chief people officer at Equifax and board president at the Society for Human Resource Management, said this to a room of thousands of HR professionals on the Monday morning of SHRM’s annual conference. And she has a point: HR is increasingly in the spotlight, and most of these topics are heavily debated topics for which get people emotional on either side of the issue.

“Everywhere you look, people issues are dominating conversation, from #MeToo to AI and so much more,” Rushing said. That seemed to be a major theme of this year’s annual conference: HR is both increasingly the subject of people’s attention now, and meanwhile organizations like SHRM are making more of an effort to advocate for issues publicly under the leadership of Johnny C. Taylor Jr., who certainly does not come across as someone who’s nervous to debate.

My editor Rick Bell has gone into detail about this as it relates to the Workflex in the 21st Century Act, and I’d like to throw out another context a well as I conclude my SHRM18 coverage for Workforce. I’ll use Taylor’s press conference on Monday, June 18, as source material. Also my inspiration: an HR professional who in a passing, short conversation said that they were surprised SHRM didn’t have more planned around sexual harassment.

Harassment is one of those hotly debated topics that is difficult for HR to address.

SHRM
SHRM CEO Johnny C. Taylor Jr.

According to Taylor, three major agenda items for SHRM are workplace immigration, second-chances for the formerly incarcerated, and harassment (both sexual and otherwise). An obvious tension point between two of these three items, which one journalist did ask Taylor about at his press briefing, is #MeToo versus people who have been incarcerated for a sexual crime.

We didn’t get a clear answer on this from Taylor in the press conference, although it seems clear what SHRM’s perspective will be on second chances. Case in point:

  • Everyone deserves to start over after they’ve served their time, Taylor said. Everyone deserves that second chance. I’m playing devil’s advocate here: That’s a pretty broad statement. Not everyone does. What about the Harvey Weinsteins, Mario Batalis or Matt Lauers of the world? There are enough men in the world who don’t harass women, and enough women who haven’t been given those same career opportunities as men, historically, that maybe they should be the ones to get their first chance.
  • An even more interesting debate moving forward will be, what about third chances? And fourth chances? Taylor posed this thought. My counterpoint: I’d really, really hope companies would put their foot down after a certain number, in the context of harassment. To do otherwise would be irresponsible. Also, think of how many of these cases that have come to light recently in which a person has continually committed similar verbal or physical abuse and gotten away with it. They’ve already gotten their chance not to repeat a behavior again.
  • If a person’s criminal record says “assault,” that can mean many different offenses, Taylor said. For example, maybe it was a verbal threat and nothing physical. My counterpoint: Verbal threats are still serious. Let’s not undermine the seriousness of these just because nothing physical happened; emotional and mental abuse are real and not to be taken lightly.

Big picture, here’s what I’m getting at: People have the capability to change and reform. But let’s admit the seriousness and pervasiveness of sexual harassment. Crazily enough, there are people out there who still don’t get that this is a big deal! Or that women don’t seem to know how to take a compliment or a joke!

My concern is that it’s already pretty well-known that HR historically has not done enough or gone far enough in the fight against sexual harassment. Yes, it’s a positive if HR folks want to give people second chances, but I really hope that they’ll be much more proactive at appropriate punishments, like firing or filing criminal charges if necessary, when it comes to people who have been incarcerated for sexual offenses, whether that’s verbal or physical. HR has a lot to prove right now in how it deals with sexual harassment.

This brings me to Rushing’s talk, because at one point she brought up how at Nike, when a group of women wanted to come forward about harassment, they went to the media, not HR. That’s how they knew something would actually get done to address the situation.

“Too often we’re hearing, I went to HR and nothing happened,” Rushing said.

My personal call for HR professionals in the advocacy space is: Yes, of course, advocate for the formerly incarcerated. It’s true that they’re an untapped source for talent. I want to be clear that I agree this is a very positive development, that Taylor had many solid points in his argument, and that many people out there deserve a second chance.

Meanwhile, don’t put sexual harassment on the back burner. That’s still important and should remain in the spotlight as well. As you move to improve the job-search environment for the formerly incarcerated, also remember to be more assertive in how you address harassment.

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Should We Require Drug Testing as a Condition for Unemployment Benefits?

Jon Hyman The Practical Employer

This is the question posed by Ohio House Bill 704.

Let’s be clear. This law, if enacted, would not require drug testing as a condition for all applicants for unemployment benefits. Only those:

  1. for whom there exists reasonable cause to suspect the unlawful use of a controlled substance; and
  2. whose most recent employer fired because of the unlawful use of a controlled substance.
In other words, an employee fired for using illegal drugs would have to pass a drug test to qualify for unemployment benefits.
While this law scores high marks on the common-sense meter, is it really necessary?
If an employer fires someone for the illegal use of a controlled substance, one would hope (and assume) the employer has a failed drug test to support the termination. In that case, I’d be very interested to see the statistics on the number of allowed unemployment claims for individuals fired after failing a drug test.
If this law sought to drug test every applicant for unemployment benefits, I’d be opposed to it as overreaching and an invasion of privacy. As it stands, however, I’m neutral. The law makes sense, but I don’t think it serves any interest that isn’t otherwise being met.
What do you think? Should employees be drug tested as a prerequisite to receiving unemployment benefits? What if it’s limited to employees fired for using illegal drugs? Share your thoughts in the comments below.
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SHRM as an Advocacy Organization Gets a PL+US-Sized Test

The Society for Human Resource Management has never struck me as a powerhouse on Capitol Hill.

Oh yes, SHRM members have testified before Congress in the past. One exchange has stuck with me. It was a testy discussion in 2009 between then-SHRM COO China Gorman and former Rep. Lynn Woolsey. The California Democrat twice referred to SHRM as “shoorum” during testimony on the Healthy Families Act, which would have required companies to offer paid sick days. When Gorman corrected Woolsey, the congresswoman declared, “that doesn’t say anything to me” after Gorman gave her the proper pronunciation.

That moment wasn’t exactly a ringing endorsement of SHRM’s clout as a legislative influencer. I’m sure they’ve had successes but largely they’ve been in the background of conversation, not out front.

That’s changing, and it was in full evidence at the just-concluded 2018 SHRM conference in Chicago. New SHRM CEO Johnny C. Taylor Jr. clearly defined the 300,000-member organization’s goals: workplace harassment; second-chance legislation for those incarcerated for crimes; pay and gender equity; and immigration reform. He explicitly noted SHRM will push for workplace immigration issues, not humanitarian reforms. “We need to figure out what our lane is,” Taylor said on immigration during his Monday afternoon press conference. “Separation of families is not our space. It’s about the workforce — smart, sensible immigration.”

As Taylor and SHRM’s staff ponder what lane to take, he made it clear that they will not shy away from the encounter.

“We’ve spoken out on different positions,” Taylor said. “Before we were less vocal and steered away from controversial topics. That position is changing now. We will speak out on some of that.”

SHRM CEO Johnny C. Taylor Jr.
SHRM CEO Johnny C. Taylor Jr.

Taylor later added: “I’m not afraid of taking positions. Be a force for social good. We stepped into the DACA conversation. You can sit on the outside or step in and engage.”

Well, a funny thing happened Wednesday as the conference wound down. An email dropped into my inbox with the subject line, “Society for Human Resource Management Under Fire for their Flawed Paid Family Leave Legislation.”

The sub-head read: “Over 50 HR leaders call SHRM’s policy ‘out of step’ with top U.S. employers on paid family leave.” So, just as Taylor wants to step out into a much brighter advocacy spotlight, his organization is criticized as out of step for its support of Workflex in the 21st Century Act.

The group critical of SHRM, known as Paid Leave for the United States, or PL+US, wants SHRM to drop its support of the Workflex Act and instead get behind Sen. Kirsten Gillibrand’s FAMILY Act.

Said Alice Vichaita, head of global benefits at Pinterest, in the June 20 press release: “I’m proud to join my HR colleagues in calling on SHRM to re-evaluate its support of the Workflex in the 21st Century Act. This policy isn’t good for working families or a working business. It’s time we put working families first.”

Added Annie Sartor, PL+US’ workplace program director, “Their advocacy highlights just how out of touch they are with their membership and industry trends.”

My Workforce colleague Andie Burjek wrote about the Workflex Act during the conference, and it’s unfortunate that PL+US waited until the waning moments of the final day to publicly address their opposition. We would have gladly spoken to their representatives during SHRM18.

This also is different than past groups critical of SHRM. The one, of course, that most readily comes to mind is the SHRM Members for Transparency, which called for reform within the organization versus addressing external HR policy stances.

PL+US is making a play to sway HR policy discussions from outside the 70-year-old organization. I find that to be a very healthy and productive conversation.

Because if Johnny Taylor is a man of his word — and the jury is still out on that one for me after his obfuscation about an alleged meeting with HR Certification Institute leaders that never took place — and truly wants to elevate the HR profession then he will be the type of leader willing to listen to factions within the organization’s membership.

“The HR profession involves risk,” he said. “You have to know and accept certain obligations. That’s where we have to get.”

I think that goes for SHRM as well. The association has often been isolated and insulated against outside influences and opinions. That’s certainly within their right.

And for what it’s worth, I recognize that SHRM largely advocates for employer-friendly legislation, and the bill pushed by PL+US feels much more employee-centric. Still, this is a golden opportunity at the outset of Taylor’s run as SHRM CEO to be the inclusive leader willing to hear out his HR constituency.

Yes, it involves risk. But that’s part of Taylor’s ethical obligation as he pushes to “tool up the profession” and speak out on issues that past administrations may have seen as too controversial.

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Day 1 of #SHRM18 — Part Church Revival and Immigration on Our Minds

Earlier this spring when I met with new CEO Johnny C. Taylor Jr. at SHRM’s offices near Washington, D.C., I asked him what his inaugural speech to conference attendees would look like.

“It’s like coming to a church revival on Sunday,” he said. And sure enough, on the opening day of the Society for Human Resource Management’s 70th annual conference and expo, Taylor did not overhype the atmosphere. Taylor’s 30-minute talk with 15,000-plus SHRM attendees in the cavernous McCormick Place hall (Taylor is pegging overall attendance at 20,000 this year – by far a record) had a bit of revival meeting sermon laced with plenty of motivation.

Taylor also recollected when he took his SHRM certification test. “You know how they tell you to skip the question when you don’t know the answer? I realized on number six that I had passed on the first five.”

#SHRM18
SHRM CEO Johnny C. Taylor Jr.’s opening speech at Day One of the #SHRM18 conference.

Ultimately Taylor passed his SHRM test.

But there was a bigger test to pass on Day One of the conference. Like a new pastor addressing his congregation for the first time, he had to prove himself to SHRM’s assembled members.

Judging by at least five rounds of applause and audience members within my earshot enthusiastically agreeing with him, Taylor set himself apart from past SHRM leaders with his inaugural speech.

There was the expected mantras like “set audacious goals for ourselves” and his admittedly grammatically incorrect “only us can save us.”

He also selected the tale of Benaiah from the Bible’s Book of 2 Samuel, who chased a lion into a pit, then jumped in with the beast. And he asked his assembled HR masses, “What’s your lion?”

It was a decidedly interesting turn from past SHRM leaders’ opening day speeches. As I recall they never lasted more than 15 minutes, and they were largely warming up the crowd for the opening keynoter. While it was not immediate past CEO Hank Jackson style, it’s safe to say no preceding CEO ever stirred the crowd the way Taylor did on Sunday.

There’s an old adage in show biz that you never want the opening act to steal the show from the headliner.

Jeb Bush’s talk was enlightening and engaging, but it’s Taylor’s speech that’s still likely ringing in SHRM attendees ears. I was expecting a typical “fireside chat” speech from Bush, where Taylor or someone else conducts an interview. To Bush’s credit he gave a solid, thoughtful 45-minute talk on talent management, education and immigration and how it ties into talent acquisition.

“Immigration is a catalyst for sustained growth,” Bush noted. “Stop using it as a political wedge on both sides.”

And though it was only Day One, immigration seemed to be a topic on the minds of many during this year’s conference.

Rick Bell is Workforce’s editorial director. Comment below or email editors@Workforce.com.

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Eliminating the ‘Offense’ Isn’t the Goal of an Inclusive Workplace

There’s good news and bad news about our current preoccupation with eliminating offensive language and behaviors from the workplace.

The good news is that the feelings and experiences of a wider swath of humanity matter more now. Women, people of color, LGBTQ individuals, immigrants and folks with disabilities are no longer expected to simply conform and comply, which is good for morale, productivity and the creation of a more humane society. The bad news is that the focus on avoiding “offense” is ineffective, even harmful, because it’s looking in the wrong direction.

“Offense” is about feelings; a person feels offended when they experience another person’s behavior as insulting or disrespectful. There are two problems with over-focusing on avoiding offense.

The first is that anyone can be offended by anything. In a diverse workforce, the possibility that someone will be offended by any particular behavior or decision is higher than ever before. This possibility can (and does) paralyze leaders out of fear, preventing them from making bold decisions — or any decisions. A hyperfocus on avoiding offense can exacerbate a fear-based culture, create a walking-on-eggshells environment or fuel leadership inaction.

The second reason is that keeping everyone happy all the time is not the purpose of an effective leader or a mission-driven organization. An effective leader’s purpose is to make decisions, aligned with clear goals and values, to ensure the organization’s mission is realized. Such a process may be collaborative and generally respectful, but it’s not about pleasing all the people all of the time. It’s about knowing whose feelings and opinions matter most. Creating a more inclusive workplace isn’t about including everything and everyone because that’s neither possible nor effective.

However, the more important issue hidden underneath the preoccupation with “offense” is that creating a more inclusive workplace isn’t always about feelings and opinions! Creating a more inclusive workplace is about getting out of each other’s way. It’s about creating an environment where brilliance and excellence flourish, because more people can bring more of their full selves into that environment. What gets in the way is less what is “offensive” and more what is oppressive.

Oppression exists when a person’s group membership endangers, in a meaningful way, that person’s life or livelihood. Oppression is not about feelings, nor is it always about intent. Where there are habits, beliefs, assumptions and processes that systematically and unfairly disadvantage members of one group compared to another, there is oppression.

Where some groups are thwarted — due to no fault or deficit of their own — in their ability to live physically unharmed, experience good health, earn a fair and dignified living, be safely and adequately housed, and meet basic needs for food, education and belonging, there is oppression. In the workplace, where some groups are unfairly thwarted — due to no fault or deficit of their own — in their ability to be hired, earn fairly, be mentored and developed, be promoted, receive opportunities and choice assignments, contribute their talents and ideas, influence decisions and work free of significant danger, there is oppression.

Oppression is a strong word. It’s a tricky concept because it’s mostly avoided as a topic of meaningful conversation in the U.S., and because it exists independent of feelings. Members of an oppressed group may “feel” oppressed — or not. They may feel offended by a particular behavior — or not.

That doesn’t mean oppression isn’t affecting their lives. Meanwhile, members of a non-oppressed group may also feel offended by a particular behavior. They may even feel like they are oppressed. That doesn’t mean they’re actually oppressed; it usually means the status quo shifted. For example, some white people feel oppressed because we hold less of a majority than we once did in both numbers and cultural dominance. Some men feel oppressed because they are now being held accountable for behaviors that were never OK but now bring meaningful consequences. While being white or male may feel more uncomfortable than before and bring more risk and vulnerability than it once did, as a group whites and males do not experience meaningful or unavoidable endangerment of their lives and livelihoods due to their race or gender, especially compared to people of color and women. That which feels offensive doesn’t always indicate oppression.

When thinking and talking about oppression, it’s important to bear in mind the concept of intersectionality — the way every person has multiple identities that intersect. Therefore, no one person is either oppressed or non-oppressed because we’re complex beings. Most of us are both. White men that are working class or who experience poverty are oppressed in their social class identity (but not in race or gender). Women who are white or grew up wealthy are not oppressed in their race or class identity (but are in gender).

It’s uncomfortable to think and talk about oppression, especially in the workplace. Perhaps a different term is a better fit for your culture, but addressing oppression is key to D&I effectiveness. Rather than focusing on “is this going to offend someone?” focus on “What are the habits, beliefs, assumptions and processes at work in our organization that systematically and unfairly disadvantage members of one identity group compared to another?”

Don’t guess but instead gather data. Start with your hiring and promotion rates, retention and turnover metrics, employee engagement results, productivity and error rates, levels of innovation and creativity, and customer satisfaction ratings. Dig deeper by looking at your HR policies and procedures, onboarding process, organizational strategic plan, market share, marketing and publicity materials, revenue and costs, complaints and lawsuits. Find out what’s getting in the way of your people bringing their full brilliance and excellence to work, and what’s impeding your ability to attract and engage top talent as well as ideal customers.

Creating a world that works better for more of us is about avoiding and disrupting behaviors and systems that are oppressive (hurting people’s lives and livelihoods), not just “offensive” (hurting people’s feelings). It’s not that feelings don’t matter; every person’s shame, anger, fear and pain deserve empathy and understanding. It’s just not the role of the workplace to meet all employees’ emotional needs, and feelings don’t necessarily reveal oppression.

That which is viewed as “offensive” should be heard and explored, but don’t get caught up in avoiding “offense” at the expense of dismantling oppression. That is a far more serious problem that the workplace is better equipped to address.

Susana Rinderle is president of Susana Rinderle Consulting and a trainer, coach, speaker, author and diversity & inclusion expert. Comment below or email editors@workforce.com.

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The Legality of Precertification Communications With Potential Class-action Members

Jon Hyman The Practical Employer

Your nightmare as an employer has just become your reality.

A disgruntled former employee has launched a wage and hour class action lawsuit against you.

You’d like to get out ahead of the game by having your lawyers start marshaling your evidence. For example, they’d like to interview employees and gather affidavits in opposition to the eventual motion for class certification.

But can they?

Our rules of legal ethics prohibit us from communicating with represented parties. But they also make clear that putative class members (that is, precertification individuals who could be included in the future class) are not yet represented. They only become represented if the class is certified, or if the collective action is certified and they opt in.

For this reason, it’s been nearly three decades since the Supreme Court ruled that defense counsel is permitted to contact putative class members before a class is certified. Indeed, courts only limit these precertification communications to class members if:

  • The communications to class members misrepresent the status or the effect of the pending action.
  • They have an obvious potential for confusion and/or adversely affecting the administration of justice.
Following these rules, courts have permitted communications that:
  • Sought affidavits from employees to oppose class certification (here).
  • Advised employees to contact the company’s attorney with questions about the pending case (here).
  • Attempted to resolve the specific damage claims of each potential class member (here).

Courts only prohibit or otherwise limit defense counsel’s precertification communication with putative class members if there is a specific showing that the communications attempted to coerce putative members into excluding themselves from the class, undermined cooperation with or confidence in plaintiffs’ counsel, or suggested retaliation for participating in or assisting the class.

Thus, if you are sued in a class-action lawsuit, consider implementing reasoned precertification communications with your employees as part of your defense strategy.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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The Greatest Book Ever Written About Labor Relations Is…

Jon Hyman The Practical Employer

Last week I came across an article titled, “Business Wisdom From 10 Classic Children’s Books.”

Its premise is that books with the simplest language often contain the most complex ideas, and that children’s books offer us a whole lot of real-world business wisdom.

I was surprised, then, when I discovered that this list omitted the No. 1 book ever written about labor relations — Click Clack Moo, Cows That Type.

I first wrote about Click Clack Moo all the way back on May 24, 2007. And since I realize that many of you have not been with me from the blog’s beginnings, I thought this was as good a time as any to step into the Wayback Machine to revisit this classic.

“Farmer Brown has a problem. His cows like to type.”

So starts Click Clack Moo, Cows That Type

In Click Clack Moo, Farmer Brown’s cows and hens decide that they need electric blankets to keep warm at night in the barn. They deliver their demand to Farmer Brown on notes typed by the cows on an old typewriter. When Farmer Brown refuses their demand, they go on strike, withholding milk and eggs.

Ultimately, Duck brokers a deal. Farmer Brown agrees to accept the cows’ typewriter in exchange for electric blankets. The labor dispute ends, and the cows and hens went back to producing milk and eggs.

The deal backfires on Farmer Brown, though, as Duck absconds with the typewriter and leverages it for a diving board for the pond.

Click Clack Moo teaches us some valuable lessons:

    1. Fair Treatment: The best means to avoid collective action by your employees is to treat your employees fairly. The barn was cold, and the cows and hens perceived that they were being forced to work in intolerable conditions. When Farmer Brown refused even to consider any concessions, they went on strike. If you want your employees to work hard, not unionize and not file lawsuits, treat them fairly. Maintain reasonable, even-handed work rules and policies. Apply them equally. Don’t discriminate. There is no guarantee that you’ll stay out of court, but if you end up there, you’ll have a much easier time convincing a judge or jury of the rightness of your decision if they perceive you as having been fair, reasonable, and even-handed.
    2. Litigation is an Answer, But Not Always the Best Answer: Even in employment cases, where there are so many emotions in play on both sides of the table, it is only the most frivolous of cases that cannot not be resolved at some dollar figure. It is the job of the employer, working with its attorney, to strike the right balance between the cost of litigation and the cost of settlement. Convictions often get in the way, and often times litigation and trial is the only means to an end. But, you should always keep an open mind towards a resolution.
    3. Don’t Go It Alone: When resolving any case, make sure all your loose ends are tied up in a tidy agreement. Farmer Brown missed this last point. A well drafted agreement that included Duck would have avoided the added expense of the diving board. If Farmer Brown had retained competent counsel, he could have potentially avoided the problem with Duck (who probably went to law school).
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Author Addresses Dying for a Paycheck — Literally

Jeffrey Pfeffer, author of ‘Dying for a Paycheck.’

Jeffrey Pfeffer takes a direct approach when talking about the harmful health effects a negative workplace can have on employees. The professor of organizational behavior at the graduate school of business at Stanford University points out that these effects can happen to someone in any industry.

In his new book, “Dying for a Paycheck,” Pfeffer provides evidence and examples to support his claim that negative workplace environments are hurting — and in some cases killing — employees. Workforce intern Aysha Ashley Househ spoke to Pfeffer about why he thinks wellness programs don’t work and how the government should regulate management practices.

Workforce: What do you think sets your book apart from the other information out there on this topic?

Jeffrey Pfeffer: I think there’s several unique contributions. Number one, we did this aggregate estimate of the workplace exposures and their total effect on health in the U.S. and compared the U.S. to other countries and tried to show how much of the inequality and health outcomes comes from people getting sorted into jobs with these different characteristics.

And secondly, we look at the health insurance or health programs that they [employers] offer and whether those programs prevent people from accessing medical care. And I think there are the two dimensions of whether or not companies offer health insurance at all and the costs. And of course, the percentage of companies offering employer-sponsored health has gone down while the costs born by employees has gone up.

But even for the companies that are offering employer sponsored health insurance there’s often a financial burden for employees, and so you can see data that suggests a significant fraction of the U.S. workforce is unable to get their prescriptions filled or access medical care. A fair percentage of those people are in fact insured. And in fact, a reasonable number of people who file for bankruptcy because of medical expenses also have health insurance.

Number one, if you are concerned about health care costs, which everybody seems to be, you ought to focus on the work environment because that’s a source of a lot of the stressors, which create chronic disease. Number two, we ought to take human sustainability as importantly as we’ve come to take environmental sustainablity. This idea that we can use people and spit them out I think is just not a very humane, not a very good way to do things. And third, I wanted to highlight in this book that this is a problem that extends well beyond a single industry or a single occupation, that this is really an extensive problem that cuts across industries and occupations.

WF: What do you think is the ideal wellness program?

Pfeffer: I think wellness programs fundamentally don’t work; that’s what the evidence shows. And that is because they are an attempt to remediate the effects of a bunch of bad working conditions including things that we didn’t even study in the statistical estimate. Things such as gender and race discrimination and workplace bullying.

So, you have workplaces in which people are working long hours, people don’t have job control, people are facing economic insecurity because of layoffs and scheduling issues. And then what employers have tried to do is put on what I would call a Band-Aid. We’re going to offer you yoga or a little exercise. And what we have learned from the quality movement is that prevention is much better than remediation. So instead of trying to put in health and wellness programs to try and remediate the effects of toxic work environments, you ought to prevent the toxicity in the first place and then you wouldn’t need to try and remediate it.

And the other reason why health and wellness programs don’t work is because they are focused on individual behavior. So, I want you to stop smoking, I want you to stop drinking, I want you to exercise, I want you to eat better. But the evidence suggests that alcohol abuse, drug abuse, eating disorders are affected by one’s environment.

I remember the quote [in the book] from the woman I called Kim who worked at Amazon. She said, ‘I would basically do anything, take any drug, to try and numb the psychological pain I was feeling from my workplace.’ So, the idea that I’m going to give you some kind of diet and exercise program independent of removing the workplace environmental stresses that have caused you to engage in these unhealthy behaviors, it can’t possibly work. You need to change the environment, and then the health and wellness programs will work.

WF: What’s your advice for people in a stressful job, but can’t leave?

Pfeffer: Leave. [Laughs] The first thing I would tell people is you need to get social support and spend time with friends, and spend time with your family, and spend time in other environments. I mean the macro suggestion is if you’re in a toxic environment at work, spend time to the extent possible in nontoxic environments outside of work, which will give you relief from that. But in order to do that, you need to be able to have time to actually do that.

My facetious suggestion of leaving is not completely facetious. Once you have ruined your physical and psychological health by being in these harmful, toxic environments, it is very hard to reverse that damage. If I said to you, you’re in a place where they’re poisoning you, and you can’t leave the place… there’s no answer.

WF: What do you think it will take for businesses to realize they need to put their people first?

Pfeffer: You know what it’s going to take? You’re not going to like this answer. I think your readers will really not. It’s going to take a big lawsuit. Somebody is going to get sued. But somebody will bring a case and basically say you have a workplace that is causing people demonstrable, physical harm and we’re going to sue you on that.

WF: How can organizations put their people first?

Pfeffer: Employers need to recognize that they have a stewardship responsibility for the well-being of their employees and they ought to monitor things like prescription drug use, and they ought to monitor things like people’s physical and mental well-being. Employers doing surveys — it’s really pretty easy to put on an item that says what is your current health status on a five-point scale. And you can see this again, my parallel with the physical environment I think is a pretty reasonable one. They could do reporting on their human well-being as well because human sustainability is just as important as environmental sustainability.

WF: You mention how government should play a role. What should it do?

Pfeffer: Years ago, the government said if you put toxins into the air and the water and the soil it’s not just that you harm people, but you have externalized cost. Preventing the discharge is much cheaper than cleaning it up once it’s out there. And therefore, the government said we’re going to regulate and place regulations on this and we’re not going to permit you to externalize your cost on the larger society. And I think the parallel is direct. If I work you to the point where you are now physically, or psychologically, or some combination of the two unable to work, you’re now a cost that has been externalized onto the larger society.

And I have data in the book from studies not done by me, on how companies that don’t provide health insurance or don’t provide adequate health insurance, or adequate wages — you then rely on some form of public assistance. Again, the larger society pays. I think the government has a role to make sure that companies are not able to externalize their cost of employment on the broader society.

WF: Are there warning signs employees can look out for before they accept a job?

Pfeffer: So it’s kind of a funny one. When you interview, the people who are going to be your co-workers. Ask them what drugs they take. There’s a woman from Salesforce, and I quote her in the book and [she says], “I joined Salesforce and one week later I went on anti-depressants.” And she and I were talking more recently, and she said, “most of my friends at Salesforce are on anti-depressants. I should’ve asked, ‘Are you on anti-depressants?’ for my job interview.” [Laughs]

And it’s kind of facetious, but it’s kind of not. In some kind of subtle way, ask people, are you taking sleeping pills, are you on ADHD medicines, are you on anti-depressants? And you know if the percentage is pretty high maybe that tells you something.

WF: What is one thing you want people to take away from the book?

Pfeffer: The Bob Chapman quote: Your employer’s more important for your health than your family doctor. Employers really are the cause of the health care crisis. Most health care spend is on chronic disease; Chronic disease mostly comes from stress and stress comes from the workplace. So, if we want to fix the health care crisis and the health care cost crisis in this country, the place to begin is with the work environment.

Aysha Ashley Househ is a Workforce intern. Comment below or email editors@workforce.com. 

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Can (or Should) OSHA Regulate the NFL?

Jon Hyman The Practical Employer

Sports blog Deadspin asks: What If The NFL Were Regulated By OSHA?

Well, Deadspin, I’m glad you asked. I answered this very question over three years ago.

Here’s what I said (rhetorically asking if concussion are the NFL’s black lung):

The NFL has implemented league-wide rules in an attempt to minimize head injuries. And, those rules seem to be working. During the 2014 season, the rate of concussion fell 25 percent as compared to the 2013 season, and are down 36 percent since 2012.

Yet, NFL players still suffer 0.43 concussions per game. And, while the rate of concussions has fallen, the rate of injuries overall continues to rise, up 17 percent from 2013 to 2014, with 265 players placed on injured reserve during the 2014 regular season. This means that during the NFL’s regular season, more than one player per game suffered a season-ending injury.

Think about those numbers. If you ran a manufacturing plant, would you be content with a “Days Without Injury” calendar that was forever set on “zero?” And, more to the point, wouldn’t you expect OSHA eventually to take interest in your extraordinarily unsafe workplace?

All the way back in 2008, OSHA opined that it has the jurisdiction to regulate professional sports if the athletes are employees. There is no doubt that NFL players, protected by a labor union and parties to a collective bargaining agreement with the NFL, are employees, subject to OSHA’s regulatory jurisdiction.
OHSA lacks a standard on pro sports, but it does have its general duty clause. It provides, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” OSHA used this general duty clause to cite Sea World of Florida following a trainer’s death from a killer-whale attack. If the general duty clause can reach the entertainment industry, why can’t it also reach professional sports?

While OSHA likely can reach pro sports, the bigger question is will it? On its own accord, history shows that the answer is no. But, what if the NFLPA believes that the NFL isn’t doing all it could to reduce the risk of head injuries and files a complaint with OSHA? What then?

Or, what if, god forbid, a player dies on the field during a game? Surely, OSHA would then investigate. For years, the government and the coal industry ignored the risk of black lung disease, even as more and more miners fell ill.

The NFL has the power to regulate head injuries. It better be sure it is doing everything it can, or it is taking a huge risk that OSHA will step in and regulate in the league’s place.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.