Commentary & Opinion – Page 45

February 21, 2018June 29, 2023

When Diversity Training Is a Waste of Time and Employers’ Money

I may be the only diversity trainer who is often anti-diversity training.

It’s not because I don’t enjoy what I do. It’s not because I’m no good at it.

It’s because half the leaders who contact me for diversity training don’t need it. Thousands of dollars and dozens of hours are wasted every year on diversity training that has little impact — or makes things worse — because leaders make one of the following four mistakes.

You’re having a knee-jerk reaction to one or two people’s concerns. A nonprofit CEO contacted me for staff-wide training at the behest of her board because a person of color in a leadership position “made comments.” There was no evidence of other diversity-related problems and she was unwilling to elaborate on the comments (a problem in itself). As sexual harassment and overt white supremacy gain broader visibility, knee-jerk reactions fueled by heightened anxiety are understandable. But while feedback, especially from members of underrepresented groups, should always be taken seriously, taking them seriously doesn’t always mean all-staff training is the next step.
- Instead: Engage in meaningful conversation with those raising concerns to identify wider patterns and get at the root of the problem. The root may be one manager’s leadership skills, or a flaw in systems or procedures. In such cases better accountability, clearer communication, leadership coaching or process change are the appropriate solution, not training.
You lack meaningful goals for training (or D&I in general). A corporate HR leader requested unconscious bias training to help the firm recruit and retain more people of color. Some stakeholders felt training was long overdue, while others saw no need and resisted efforts. After three years their diversity council had produced no strategic plan or D&I goals. Simply aiming to recruit and retain “diverse people” is an “old school” approach to D&I that doesn’t work, especially when buy-in is low among key stakeholders. Trainers are limited in their ability to create staff buy-in; this must come from leadership.
- Instead: Identify your strategic, mission-critical goals for D&I. Diversity is not a strategic goal, it’s a strategic means to an important end the organization already cares deeply about. Having strategic D&I goals enables leaders to identify the barriers to achieving them. Identifying the barriers equips leaders to break them down effectively and efficiently — and may not require staff training. Also, defining why recruiting and retaining more people of color (or whatever the goal) is necessary to organizational success creates buy-in for training — when the time is right.
Your leaders aren’t holding people accountable for poor behavior. A leader contacted me for diversity training because a manager was making disparaging comments about Limited English Proficient staff. There were no other concerns raised by staff or complaints about other managers. Training would be a waste of time for everyone not doing inappropriate behaviors, and would not have gotten at the heart of the one manager’s issues.
- Instead: Determine whether the person engaging in poor behavior knows what is expected of them and has the knowledge and skills necessary to deliver. If they do, only consistent accountability from their leadership will solve the problem. If they don’t, individual mentoring or coaching may close the gap, along with an exploration of the organizational breakdown that allowed the gap to occur in the first place (or go unaddressed).
Your effective processes or previous trainings aren’t hardwired. A top leader in an educational institution contacted me for training to help create a more inclusive environment. Six months before, they’d engaged another trainer whose content was robust, aligned with their goals and applicable to their culture. The school had also invested a great deal of time in creating protocols to increase equity in faculty hiring. However, there had been no post-training implementation plan or follow up from leadership. The hiring protocols weren’t being used consistently and there was no clear procedure or accountability for doing so.
- Instead: Rigorously implement and follow up on identified action items following any training or new procedure rollout. This requires effort up front, but pays off over time in meaningful, sustainable behavioral and organizational change. Investing in more training is a waste of resources and communicates to employees that training and process changes don’t have to be taken seriously.

Training only solves a problem when the problem is lack of essential knowledge or skills. Providing training with no solid foundation for success or when training isn’t needed is poor stewardship of your organization’s resources. It also sets up your D&I efforts to be disregarded as the strategic priority research demonstrates they are.

However, diversity training can be highly effective when:

You know where your organization is. What are your strengths and weaknesses (in general, not just D&I)? What do your employees and customers say about you? Who is saying what?
You know where you want to go. What’s the pressing problem you need to solve as an organization, or how do you want to go from good to great?
An increase in staff or leadership awareness, knowledge and skills is key to getting you where you want to go.

Engaging a skilled diversity trainer that’s also a competent consultant – whether external or internal to your organization – is vital to the mindful planning that will get you D&I results that matter. Don’t fall into the traps of quick action out of fear or treating D&I as anything less than the strategic priority it is.

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.

February 21, 2018June 29, 2023

The FMLA (Probably) Does Not Cover Loss of a Pet

” ‘E’s not pinin’! ‘E’s passed on! This parrot is no more! He has ceased to be! ‘E’s expired and gone to meet ‘is maker! ‘E’s a stiff! Bereft of life, ‘e rests in peace! If you hadn’t nailed ‘im to the perch ‘e’d be pushing up the daisies! ‘Is metabolic processes are now ‘istory! ‘E’s off the twig! ‘E’s kicked the bucket, ‘e’s shuffled off ‘is mortal coil, run down the curtain and joined the bleedin’ choir invisible!! THIS IS AN EX-PARROT!!”

In all seriousness, it sucks to lose a pet.

But, does it qualify an employee for FMLA leave?

According to the court in Buck v. Mercury Marine (E.D. Wisc. 12/22/17), the answer is a qualified “no.”

The employee, Joseph Buck, worked as a machinist for Mercury Marine. He also had a dog, which, on May 26, 2014, he had to put to sleep. That day he called his supervisor and asked for a vacation day (which was granted) because of how upset he was.

The next day, Buck called again and explained that he had not slept since the loss of his dog and would not be able to work. Mercury Marine considered that absence unexcused.

That same day, he sought treatment at the ER and was diagnosed with “situational insomnia,” which a nurse documented in a note that Buck presented to his employer. Despite the note, the absence, and all others over the next three months, were considered unexcused.

Ultimately, Mercury Marine terminated Buck for accumulated unexcused absences, and he filed suit under the FMLA.

The district court dismissed Buck’s FMLA claim, concluding that while inability to sleep caused by the death of a pet could potentially constitute an FMLA-covered “serious health condition,” Buck had failed to show that his condition met that definition.

A serious health condition entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility.
Continuing treatment means a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition.

The court concluded that because Buck’s treatment met neither prong of the definition of a “serious health condition,” the FMLA did not cover his absences:

The record contains no evidence that the plaintiff sought, or obtained, medical attention for the insomnia, other than his one visit to Nurse Baseley—no prescriptions, no treatment reports, nothing…. The nurse’s letter does not categorize the insomnia as chronic, or say whether she expected it to continue. There is no evidence to support the plaintiff’s statement that he had been suffering from intermittent, shift-related insomnia for months.

This is not to say that an employee can never qualify for FMLA leave following the death of a pet. It just means than an employee’s resulting mental condition must otherwise meet the FMLA’s definition of a “serious health condition.”

One more thing. If an employee is that broken up about losing a beloved pet, do what Mercury Marine did in this case, and grant the employee a day to recover. You’ll be a better employer for it.

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.

February 15, 2018June 29, 2023

Can You Pay Your Employees in Bitcoin?

“What is bitcoin? I don’t understand how fake money works.”

These were the words of my 9-year-old last week.

Let me try to help him, and you, out.

Bitcoin is not fake money. It’s digital, or virtual, currency, created in 2009 by an unknown person using the alias Satoshi Nakamoto. It’s used for online transactions — some legitimate (Microsoft, Overstock), and some not legitimate (ransomware, dark web purchases).

It’s also traded online, which has made it very, very valuable. In fact, bitcoins do not have a set value. Their value is based solely on global exchanges and depends on how it’s bought and sold online.

As of mid-February, one bitcoin was trading online for $9,575.

Because of the skyrocketing value of bitcoin, the more forward thinking of employers may want to pay employees in bitcoins instead of dollars. Moreover, your employees may want to accept payment of their wages in these valuable bitcoins.

Tread very carefully, however.

The IRS treats bitcoin and other virtual or cryptocurrencies as property, not as currency.

And, the Fair Labor Standards Act requires that employers pay employees in “cash or negotiable instruments payable at par.”

Because the IRS treats bitcoin as property, it’s very likely that the DOL will not consider it “cash” or a “negotiable instrument” (i.e., a paycheck) for purposes of wage payments.

Thus, if you are not properly paying your employees under the FLSA, you have failed to pay them a minimum wage (a big FLSA no-no), no matter how valuable the bitcoins you’re providing may be.

Let me offer one more wage/hour bitcoin thought. If you and your employees are really into the idea of payment via cryptocurrency, consider offering it as a bonus payments. But, again, tread carefully. Bonuses can be considered part of an employee’s regular rate of pay for purposes of overtime calculations (even if made in kind).

Unless the payment —

is made as a discretionary gift; and
is not correlated to hours worked, production achieved, or efficiency attained

its value will count as part of an employee’s regular rate, and must therefore be factored into non-exempt employees’ overtime calculations.

I applaud any employer that looks to get creative with how it compensates its employees or rewards performance. In this case, however, a little bit of discretion will go a long way toward wage-hour compliance and avoiding an expensive FLSA mistake.

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.

February 14, 2018June 29, 2023

Grubhub Takes the Cake in Groundbreaking Gig Economy Trial

Raef Lawson worked as a restaurant delivery driver for online food delivery service Grubhub for four months in late 2015 and early 2016. He claimed that the company misclassified him as an independent contractor and owed him overtime for hours he worked over 40 in any workweek.

Last week, in Lawson v. Grubhub [pdf], a California federal judge granted the gig-employer a huge victory by ruling that Lawson and all other similarly situated drivers are independent contractors and not employees.

The court found that Grubhub lacked the necessary control over the driver’s work for him to be considered an employee.

In California (as in Ohio, most other states, and under current federal law) the test to determine whether a worker is an employee or an independent contractor is whether the business has “the right to control the manner and means of accomplishing the result desired.”

The judge found that Grubhub did not exercise sufficient control, as it:

Exercised little control over how Lawson made his deliveries, not interfering with his choice of vehicle;
Didn’t control his appearance, require him to wear a special uniform, or meet any appearance standards;
Lacked required training or orientation;
Imposed no limits in passengers in the vehicles during working hours;
Didn’t control, whether, and for how long, a driver works;
Allowed drivers to cancel their shifts at any time without penalty or consequences; and
Prepared no performance evaluations.

And while one cannot understate the significance for employers of the first federal court opinion to hold that a gig worker is an independent contractor and not an employee, perhaps the most important aspect of the opinion is Magistrate Judge Jacqueline Scott Corley’s call to legislative arms to address this issue:

[W]hether an individual performing services for another is an employee or an independent contractor is an all-or-nothing proposition. If Mr. Lawson is an employee, he has rights to minimum wage, overtime, expense reimbursement and workers compensation benefits. If he is not, he gets none. With the advent of the gig economy, and the creation of a low wage workforce performing low skill but highly flexible episodic jobs, the legislature may want to address this stark dichotomy. In the meantime the Court must answer the question one way or the other.

In other words, the gig economy is not going away and will only increase in importance. As the number of gig workers increases, what will our government do to protect their pay, their benefits, their safety and their civil rights? Because if they are independent contractors, they enjoy almost no protections under the current state of the law.

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.

February 7, 2018June 29, 2023

What Is Your Profession Doing to Combat Harassment? Mine Appears to be Doing a Lot

The policy-making body of the American Bar Association has adopted a formal resolution that urges legal employers to prohibit, prevent, and promptly redress sexual harassment and retaliation claims.

Moreover, to make sure that law-firm leaders are paying close enough attention, Resolution 302 [pdf] also urges that firms adopt measures to ensure that the heads of law firms are informed of the financial settlements of such claims.

The resolution contains the following key measures:

- Inclusion of “gender,” “gender identity,” and “sexual orientation” in the definition of “sex.”

- Encouragement all employers to disseminate a clear statement that all harassment, including harassment based on sex, will not be tolerated.

- Confirmation that the harassment policy applies to conduct by anyone at work, or at or in connection with any work related function.

- Creation of regular and effective training programs.

- Provision of alternative methods for reporting violations of the policy, including at least one anonymous method.

- Communication, at the start of employment, of the process to report harassment to a government agency.

- Investigation of all complaints in a prompt, competent, fair, thorough, and objective manner, to include a report to the complainant at the end of the investigation.

- Implementation of corrective actions to prevent and correct unlawful harassment or retaliation in the workplace, to include the restoration of lost wages or bonuses to the complainant, and disciplinary action up to and including termination of the accused.

Prohibition of retaliation against complainants and witnesses.

I quibble with some of these. For example, I typically do not think it’s a good idea to provide the investigatory report as part of the closure of the investigation. I also do not include the EEOC’s phone number and URL in harassment policies I draft.

Broadly speaking, however, I’m proud that my profession is doing something positive to shift the narrative from, “#MeToo I’ve been harassed,” to “#MeToo I’m doing something about it.”

So ask yourself, what are you doing? Are you part of the harassment solution or part of the harassment problem?

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.

February 6, 2018June 29, 2023

Triage and the Morality of ‘Playing God’

I drove to New Orleans with my sister and her pit bull in December. Fourteen hours on the road from Chicago, so a lot of our time was occupied by podcasts. I can’t get one of them out of my head after reading about one of the big health-care related developments in the news recently.

I’m talking about a rule that medical professionals can opt out of performing certain procedures for moral or religious reasons. Many people have written about this. (See Here, here and here.) Religion and morality aside, to me this story says more about the ethics of medicine. To what degree should professionals get to choose who they treat?

I won’t go into the focus of other articles. After all, much has been written on this already. What the development did remind me of was a podcast that my sister introduced me to on our road trip, RadioLab’s “Playing God.”

This episode explored the concept of triage — the process of determining the priority of patients’ treatments based on the severity of their condition — in a very specific scenario. When Hurricane Katrina hit New Orleans in 2005, Memorial Hospital had too many patients and limited resources. They had to come up with a system to decide who got care and who did not. Essentially, these everyday medical professionals had to decide who lived and who died.

It also explored what one town did to establish triage rules just in case they’d be necessary at some point in time. A group of researchers wanted to come up with rules so that medical professionals did not have to create their own system on the spot in an emergency. They could just stick with the chosen triage plan instead and spend their time treating people instead of compromising with each other on a system and wasting valuable time.

New Orleans dog — Ringo the dog on the road to New Orleans. Photo by Andie Burjek

They came up with a system in collaboration with the public through something like a grim, futuristic town hall meeting. They gave these people the scenario: a deadly flu hits the American public. There’s a limited amount of vaccines available. The also gave these people guidelines for how they can choose who gets care and who doesn’t. You can only base the decision on medical factors and not issues of race, religion, gender, nationality, citizenship status, criminal record, etc.

For example, the people who are most likely to survive would be selected to get the vaccine (leaving behind the sickest). Or, choose the people who have the most years to live if they survive (leaving behind the sickest and the oldest). Each with comes with its own set of problems but also has its own set of pros.

No solution would be perfect, but a solution based on medical factors rather than non-medical factors was the best option.

My takeaway: my first reaction was that people who have committed violent crimes like murder, domestic abuse or assault should not be able to get care in this scenario. I adamantly believed that, and then the more I thought about it, the more I realized that I could never be a medical professional. Because why should I let morality get in the way of giving people medical care? Isn’t that the point of the Hippocratic oath, that it comes down to medical factors and you don’t let your own personal beliefs get in the way of treating a patient?

To quote from an opinion piece by Dr. Daniel Summers, a pediatrician in New England:

Because many people justify their bigotry against gender and sexual minorities in religious terms, this new division is quite alarming news for LGBTQ people. The creation of this division appears to open the door for medical providers to, for example, refuse to provide gender confirmation treatment for trans people, or refuse to treat children with same-sex parents.

One attendee at the ceremony announcing this new division was Sara Hellwege, a nurse-midwife who sued in 2014 after being denied a job at a Florida health center. The reason she didn’t get the job? She admitted that she would refuse to prescribe birth control pills because of her religious beliefs—and prescribing birth control pills was part of the job she applied for.

She had no business seeking the position in the first place.

David Gorski, a surgeon and editor of the website Science-Based Medicine, expressed the views of many medical providers, myself included, when he tweeted that “physicians who refuse to treat certain patients based on their religious beliefs are in the wrong profession and should never have become doctors in the first place.”

“Doctors are people; people love and hate, and have biases and blind spots,” Zackary Berger told me. Berger is an internal medicine physician in Baltimore and treasurer of Clinicians for Progressive Care. “On the other hand, as professionals and as members of the US health care system, doctors must treat everyone no matter who they are.”

MORE HEALTH AND WELLNESS GEMS

I’m trying out this section where I share wellness-related stories caught my attention in the past week. There’s so much to write about in this space that it’s impossible to do a deep dive on every topic. Hope this helps you learn a little more about what’s going on in the wellness world!

Bold Collaboration: While the Amazon-Berkshire-JPMorgan health care company collaboration is the most ambitious employer effort to date to control health care expenses, Zack Cooper, an economist at Yale School of Public Health, was quoted as saying it’s “a bit arrogant to think that three big firms are going to come in and re-invent health care,” according to a Chicago Tribune article.

The three companies’ joint venture brings up some data privacy concerns. Amazon already has access to a lot of people’s data. What happens if they get access to health care data? There’s “a constant tension between the pros of predictive health care data and the challenges,” according to the Washington Post.

Stand Up-Sit Down: There’s a lot of hoopla in the wellness world about the health benefits of standing desks. But the research on this topic is still very young. Research should acknowledge that there could be downsides to prolonged standing, according to the Los Angeles Times. “We talk a lot about the need to avoid sitting for too long, and I think the interpretation of that for some people is, ‘OK, let’s just stand. But the solution is not just to stand all those hours,’ ” said one researcher.

Getting Schooled: Providing child-care benefits to educators can be good for school districts, according to Education Week. Teaching is “actually not as family-friendly a position as one might imagine,” said one source, noting the lack of flexibility in many teachers’ schedules.

Andie Burjek is a Workforce associate editor. Comment below or email editors@workforce.com.

February 6, 2018June 29, 2023

The 4th Nominee for the Worst Employer of 2018 is … the (in)Humane Society Harasser

The fourth nominee for the worst employer of 2018 is the Humane Society of the United States, which last month voted to retain its CEO despite an internal investigation that identified and corroborated three complains of sexual harassment against him.

From The Washington Post:

The internal investigation, which was conducted by Washington law firm Morgan Lewis last month, detailed the stories of three women who said Pacelle harassed them, with complaints dating to 2005.

The nonprofit group also offered settlements to three other workers who said they were dismissed or demoted after speaking up about Pacelle’s alleged sexual misconduct, according to a memo describing the law firm’s findings. …

The Humane Society investigation interviewed 33 witnesses, including Pacelle, outlining complaints from a former intern who said Pacelle kissed her against her will in 2005; a former employee who said he asked to masturbate in front of her and offered her oral sex in a hotel room in 2006; and a former employee who said he stopped by her office late one night in 2012 and asked her to salsa dance with him.

If you’re curious, Politico outlines all of the sordid allegations. Under the force of public pressure and the threats of many high-dollar donors, Pacelle has since resigned.

If you value your CEO more than the rights of your employees to be free from harassment, you might be the worst employer of 2018.

Previous nominees:

The 1st Nominee for the Worst Employer of 2018 Is … the Holy Harasser

The 2nd Nominee for the Worst Employer of 2018 Is … the Arresting School Board

The 3rd Nominee for the Worst Employer of 2018 Is … the Camera Creep

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.

February 5, 2018July 30, 2018

Happy 25th FMLA … and Happy #SuperSickMonday

Last night, my Philadelphia Eagles won the Super Bowl.

Today, the FMLA turns 25.

Over the past 25 years, it is estimated that employees have used the Family Medical and Leave Act over 200 million times to take job-protected, unpaid time off work to address their own serious medical condition or care for a family member.

And yet, in those 25 years, Congress has only amended the law once, to provide for military family leave.

There is still so much more to accomplish in regards to time off for the American worker, by expanding the FMLA to cover:

Workers in businesses with fewer than 50 employees
Paid leave
Workers who need time to care for adult children, domestic partners, siblings, grandparents, grandchildren and other close family members
Workers who need time to attend a child’s school meetings or other important activities for their children
Workers who need time to address the effects of domestic violence, stalking, or sexual assault

I can hear the employer complaints now.

“The FMLA is already hard enough to manage.”

All I’m suggesting is adding categories of leave, which should not greatly add to your administrative burden.

“Employees will abuse the system and take advantage.”

That’s not an FMLA issue. That’s an employee management issue. Yes, some employees will abuse, and they should be fired. But, the risk of abuse is not a reason to offer protections to employees.

So today, I call on Congress and the White House to do more to protect the sanctity of the family by looking at reasonable expansions to the FMLA to offer greater protections to workers who need time off from work, and job protections, for things like family care, domestic violence and sexual assault, and children’s activities.

No employee should be forced to choose between their own health and their job, or the health of a loved one and their job, or going to see their child perform in a school play and their job.

Employees are entitled to have personal lives and jobs. It never should be an either/or proposition.

Oh, and back to the Super Bowl. Don’t fret employers. I’m not proposing that the FMLA protects Super Bowl Monday. Well, at least not in cities other than Philly today.

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.

January 30, 2018June 29, 2023

Is Employee Copying of Documents Protected Activity or Unlawful Stealing?

It’s a situation that plays out all too often. An employee emails a slew of documents to a personal email address, or drags them into a personal Dropbox, or copies them to a stick drive.

Your first instinct is to assume that the employee is engaged in something nefarious, fire the employee, and even sue for misappropriation of trade secrets/confidential information.

But might there be something else going on? What if, instead of competing against you, the employee is preparing to go to battle against you in a discrimination lawsuit?

Does an employee have a right to copy your documents to prepare a discrimination lawsuit?

Not surprisingly, the answer depends.

In examining the issue, courts balance an employer’s legitimate and substantial interest in keeping its personnel records and agency documents confidential against the employee’s alleged need for surreptitious copying and dissemination of the documents.

In balancing these two competing interests, courts generally apply the following six factors to determine whether the surreptitious copying qualifies as legitimate protected activity or illegal misappropriation.

1. How did the employee obtain the documents?
  - Was it accidental or in the course of their job duties?
  - Or did they rummage through files or snoop around offices for documents?

1. To whom did the employee produce the documents?
  - To their attorney?
  - Or to coworkers?

1. How strong is the employer’s interest in keeping the documents confidential?
  - Do they contain trade secrets, or other confidential information, or PII such as social security numbers or medical information?
  - Or do they contain non-confidential information?

1. How did the employer discover the misappropriation?
  - Did the employee volunteer the information as part of the lawsuit?
  - Or did the employer discover it on its own?

1. Did the employee violate a company policy by taking the documents?
  - What do the employer’s privacy and confidentiality policies say?

Does the employee have an ability to preserve the evidence in a manner other than copying hte documents?
- Can the employee merely describe the content of the documents to his or her attorney?

So, the question then becomes, if you catch the employee red-handed with purloined documents, what should you do? Often, it’s fire now/ask question later. And court generally support this plan of attack.

For example, in O’Day v. McDonnell Douglas Helicopter Co., the 9th Circuit held that an employee actions in rifling through his boss’s desk the evening after being denied a promotion was not protected, even though he claims to have been looking for evidence of age discrimination.

In balancing an employer’s interest in maintaining a “harmonious and efficient” workplace with the protections of the anti-discrimination laws, we are loathe to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation. The opposition clause protects reasonable attempts to contest an employer’s discriminatory practices; it is not an insurance policy, a license to flaunt company rules or an invitation to dishonest behavior.

The 6th Circuit reached a similar conclusion in Niswander v. Cincinnati Ins. Co

This is not to say that every instance of an employee copying confidential or other company documents to preserve potential evidence of discrimination is not protected. But it does mean that employees climb a steep hill in making this claim, especially when there are less self-help-y avenues to achieve the same goals (retaining counsel, who send a preservation letter to the employer).

So what should you do if you catch an employee copying documents? First, call your employment lawyer. Then, based on O’Day, Niswander, and other cases, rest comfortably that courts generally disfavor self-help, and unless there is something inherently protected in the act of copying itself (only documents relating to alleged discrimination are copied, documents are emailed by the employee directly to counsel, are they snooping or sending documents they already have), then you are probably (but not certainly) protected in terminating the thieving employee.

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.

January 26, 2018June 29, 2023

Entrepreneurship, the Gig Economy and Access to Benefits

Occasionally I get to write feature stories for Workforce’s sister publication, Talent Economy, and the most recent assignment is on the topic of diversity (or lack thereof) in entrepreneurship.

A lot of my findings and interviews I’m saving for the article itself, which comes out later this year, but there was one benefits-related piece of information that I’d like to share with you today in Working Well.

A November 2017 story in Black Enterprise shed some light on some interesting trends in the entrepreneurship/small business space. First, women of color are the fastest-growing segment of the country’s economy, and a recent poll found that 56 percent of female entrepreneurs find access to birth control a vital health benefit for them because it allows them to decide:

A) If and when they want to have children.
B) To advance their careers and start their businesses without that responsibility.

What do you think? As HR professionals, do you feel like there are certain benefits that would make entrepreneurship and small business ownership a more attainable goal for an underrepresented group in the entrepreneurship community? Maybe women, or a certain race, or a certain age group, or a certain geographical region. Feel free to share your thoughts with me in comments section below or at my Twitter handle, @andie_burjek.

Not only do entrepreneurs value certain benefits, but they can impact the benefits landscape. I recently spoke with Marion McGovern, the author of Thriving in the Gig Economy, about baby boomers’ participation in the gig economy. She also informed me about benefits and how entrepreneurs are stepping up to fill the gaps for gig economy workers who do not have access to benefits. What policymakers aren’t addressing yet, some entrepreneurs are.

She gave a few examples of these entrepreneurs. ShiftPixy is focused on low-earning shift workers in restaurants like busboys or servers. These people have difficulty getting benefits for a variety of reasons, for example because they do not get enough hours to qualify for benefits. Using this app, employee could take shifts at more than one restaurant and work enough hours at various places to qualify for benefits as a ShiftPixy employee.

“[The restaurants] are willing to pay more to take that administrative burden off them,” said McGovern. “Meanwhile, the employees get benefits and get to schedule shifts that work for them.”

She mentioned a few other companies that aim to get benefits to employees who don’t have access to them — Stride Health, Honest Dollar and Bunker Insurance, among others.

“The marketplace isn’t reacting traditionally. And it’s not the policymakers or regulators [but the] entrepreneurs out there who are saying, ‘There’s friction out there in the marketplace. Let’s get rid of some of it.’ That’s very empowering,” said McGovern.

I don’t know much about these companies, but it is fascinating that they’re stepping up to try to solve this problem. It’s something that’s not going away anytime soon. As more people rely on contingent work, how they will they access benefits becomes more important. Contract work is booming, and 32 million Americans earn their living that way, according to a recent NPR article.

And this trend is expected to accelerate over the next decade. This “raises big questions about the future of the safety net,” the article said. “According to a [NPR/Marist] poll, 51 percent of freelance and contract workers do not receive benefits common to many full-time jobs — sick leave, unemployment insurance or retirement savings.”

As more entrepreneurs, small-business owners and contract workers find themselves lacking in benefits, it’ll be interesting to see what solutions come about to fill that gap.

Andie Burjek is a Workforce associate editor. Comment below or email editors@workforce.com.