Category: Commentary & Opinion

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When Equal Pay is not ‘Equal’ Pay

Jon Hyman The Practical Employer

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, and substantial equality is measured by job content, not job titles. This act is a strict liability law, which means that intent does not matter. If a women 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 EPA has several built-in defenses, including when the pay differential was “based on any other factor other than sex.” So, what happens if two comparable employees, one male and one female, come to you with different salary histories. Does the Equal Pay Act require that you gross up a lower earning female to match the salary of a higher paid male, or do the mere disparate prior salaries justify the pay disparity under the Equal Pay Act?

According to Rizo v. Yovino (9th Cir. 4/27/17), “prior salary history” alone can constitute a “factor other than sex” to justify a pay disparity under the Equal Pay Act.
Fresno County uses a salary schedule to determine the starting salaries of management-level employees. It classifies math consultants as a management-level position. It starts all math consultants at Level 1 of the salary schedule. Level 1, in turn, is broken down into 10 steps. To determine at which step within Level 1 to start a newly hired math consultant, it takes the employee’s most recent prior salary plus 5 percent.
Rizo, a newly hired math consultant, earned less than the Level 1, Step 1, salary at her prior job, even when adding in the 5 percent kicker. Accordingly, the county started her at its lowest starting salary for that position (Level 1, Step 1). Rizo sued under the Equal Pay Act when she learned that a recently hired male math consultant was hired with a starting salary of Level 1, Step 9.
The 9th Circuit concluded that these facts did not support Rizo’s Equal Pay Act claim.

The plaintiff and the EEOC … argue that prior salary alone cannot be a factor other than sex because when an employer sets pay by considering only its employees’ prior salaries, it perpetuates existing pay disparities and thus undermines the purpose of the Equal Pay Act. …

[W]e do not see how the employer’s consideration of other factors would prevent the perpetuation of existing pay disparities if … prior salary is the only factor that causes the current disparity. For example, assume that a male and a female employee have the same education and number of years’ experience as each other, but the male employee was paid a higher prior salary than the female employee. The current employer sets salary by considering the employee’s education, years of experience, and prior salary. Using these factors, the employer gives both employees the same salary credit for their identical education and experience, but the employer pays the male employee a higher salary than the female employee because of his higher prior salary. In this example, it is prior salary alone that accounts for the pay differential, even though the employer also considered other factors when setting pay. If prior salary alone is responsible for the disparity, requiring an employer to consider factors in addition to prior salary cannot resolve the problem that the EEOC and the plaintiff have identified.

Before everyone rejoices, note that Rizo is contradictory to the law of the 6th Circuit (which covers Ohio employers)—Balmer v. HCA, Inc. (“Consideration of a new employee’s prior salary is allowed as long as the employer does not rely solely on prior salary to justify a pay disparity. If prior salary alone were a justification, the exception would swallow up the rule and inequality in pay among genders would be perpetuated”). Rizo is also contradictory to other circuits, such as the 10th and 11th. In fact, Rizo very much appears to be the minority view on this issue.

So what is an employer to do? Follow the law of your jurisdiction. In Ohio, that means that you cannot rely solely on an employee’s prior salary history to justify a pay disparity between similar male and female employees (although you can rely on prior salary plus other factors such as experience, skill, or training). It also means that we wait for the appeal of Rizo to the Supreme Court, and see if SCOTUS decides to take this case and provide some national clarity on this issue.

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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Leaders Can Learn a Lot from Working Moms

 

Motherhood, despite the challenging, multi-faceted, always-on nature of the gig, is not a job we would typically associate with leadership.

Worse, when discussed in a workplace context, motherhood is usually a negative. But when I read Moira Forbes’ “7 Leadership Lessons You Can Learn From Working Mothers” this week, I saw things in a whole new light.

Forbes asked a group of successful women to share the most important leadership lessons they’ve learned since becoming a mother. What follows is my take on how a diversity leader might consider a few of those lessons on the job.

  1. Know when to push and when to let go. Christa Quarles, CEO of Open Table and mother of two sons, said that “so much of parenting is wrestling with the dichotomy of when to push your child and when to let go and let them drive the direction; thereby enabling the condition that they might fall or fail.”

A leader or manager faced with a problematic employee situation has to walk a tightrope between what’s good for the employee and what’s good for the company. But I would encourage those leaders not to err on the side of caution. Meaning, don’t decide not to say the hard truth for fear of repercussions or making the situation worse.

And it doesn’t need to be a case of “a hard head makes a soft ass,” as my mama liked to say when I got into some mess. With a bit of thoughtful planning – and perhaps a word or two with your HR peers — there’s a diplomatic way to handle almost everything.

There have been many times I’ve learned a lesson late, far later than I needed to because a manager neglected to tell me a hard truth. I can understand why someone wouldn’t want to go there. Let’s say you have a smart, strong black woman known for calling a spade a spade — I may or may not be talking about myself — who’s underperforming in some way; that could be intimidating. I too have shied away from dicey situations with direct reports. But that’s rarely the right way to handle a situation.

It certainly isn’t worth bearing arms for every fight, but when a certain behavior or a lack of knowledge will affect someone’s ability to do their job, or potentially have a long-term impact on their career, for goodness sake. Bite the bullet, and let them know. If they’re anything like me, they’ll thank you for your honesty. “It’s … important to step in and course correct,” Quarles said. “Striking that balance is what defines effective leadership.”

  1. A personalized approach is key. Lizzie Widhelm, senior vice president of ad product strategy at Pandora, was talking about her three sons when she said, “My children are two parts amazing, one part insane, and a whole lot of nothing alike. If I don’t adjust to their unique personalities and spend quality time with each of them, we have total chaos at home.” But leaders have to face the same diversity of opinion and behavior in the workplace. It requires equal parts diplomacy, policy, curiosity and empathetic consideration.

Widhelm said her team at Pandora was able to benefit from the many mistakes she made at home because those mistakes helped her bring a more perfect leadership strategy to work. But there’s nothing wrong with making mistakes as long as you do that very modern thing — fail fast, and learn the lesson.

When working with diverse personalities or individuals, consider their personal and professional situation carefully, and if there’s a challenge, make it crystal clear you’re there to help. Communication is important in most situations, but I’d say it’s critical in a problematic situation with an employee. Ask questions, and listen thoughtfully to the answers. Offer solutions, and where possible, collaborate before making final decisions.

“Everyone has different strengths, passions and motivations,” Widhelm said. “The interesting thing about putting the extra time in with your team is they appreciate you for the investment and in turn your relationship grows and leads to more open and honest conversations.”

  1. Embrace unknown territory. Michelle Cordeiro Grant, founder and CEO of Lively was talking about her son and daughter when she said, “motherhood has taught me not to fear the unknown but instead embrace the journey of learning on the go!” But her sentiment is no less viable in a work context. A manager dealing with a diverse team, or certain personality types for the first time, may encounter any number of new and potentially unnerving situations. But Grant’s advice to enjoy “figuring it out” has weight.

Too many of us shy away from any dimension of diversity because of the inherent discomfort when encountering something new or unfamiliar. But that discomfort often goes hand in hand with learning. That opportunity for learning and development is what any leader should embrace.

With learning comes growth, and with both there will be milestones and accomplishments. Grant said each of her milestones built upon the next, creating momentum and empowering her to continue to build. “The big takeaway for me is to use moments of accomplishment, big or small, as fuel to have the courage to go after it all – the sky’s the limit!”

  1. Balance competing needs. Kathy Hochul, lieutenant governor of New York, was talking about her two children when she said, “an essential role of motherhood is being a conciliator: resolving conflicts — which in my case was often with warring children.” But two squabbling kids aren’t all that different from two adults having a heated difference of opinion at work. I know. I’ve seen both.

Workplace conflicts are inevitable as knowledge workers leverage collaboration and are freed from the restrictions associated with command and control leadership. But they needn’t be the end of the world. “While mediating an argument, I sought to teach empathy for the feelings of others and respect for different faiths and backgrounds that may give others a different point of view,” Hochul said. “Children learn by example.” Employees do too.

Leaders may have to teach employees how to collaborate effectively, mediate, even argue or communicate respectfully. But it’s worth it when those different points of view produce great work, innovation or service/product improvements.

I’ve often thought adults could learn a lot from watching how children go through life: wide-eyed and curious, fearless and laughing even when they fall down or make mistakes. We can learn a lot from their mothers, too.

Kellye Whitney is associate editorial director for Workforce. Comment below or email editor@workforce.com.

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Wage Theft is a Misnamed, Overused Phrase

Jon Hyman The Practical Employer

Writing at Inc.com, Suzanne Lucas (aka Evil HR Lady) reports on a study published by the Economics Policy Institute, which says that employers short their employees $15 billion in wages per year.

According to Suzanne, “Wage theft isn’t always the case of a corrupt boss attempting to take advantage of employees.” She is 100 percent correct. In fact, most instances of an employer not paying an employee all he or she is owed under the law results from our overly complex and anachronistic wage and hour laws, not a malicious skinflint of a boss intentionally stealing from workers.

This is as good a time as any to revisit a topic I haven’t addressed in a few years — ”wage theft” (or, as I call it, a term coined by the plaintiffs’ bar and the media recast employers as the arch nemesis of the American wage earner).

Here is what I wrote on this issue three-plus years ago:

I have a huge problem with the term “wage theft.” It suggests an intentional taking of wages by an employer. Are there employees are who paid less than the wage to which the law entitles them? Absolutely. Is this underpayment the result of some greedy robber baron twirling his handlebar mustache with one hand while lining his pockets with the sweat, tears, and dollars of his worker with the other? Absolutely not.

Yes, we have a wage-and-hour problem in this country. Wage-and-hour non-compliance, however, is a sin of omission, not a sin of commission. Employer aren’t intentionally stealing; they just don’t know any better.

And who can blame them? The law that governs the payment of minimum wage and overtime in the country, the Fair Labor Standards Act, is 70 years old. It shows every bit of its age. Over time it’s been amended again and again, with regulation upon regulation piled on. What we are left with is an anachronistic maze of rules and regulations in which one would need a Ph.D. in FLSA (if such a thing existed) just to make sense of it all. Since most employers are experts in running their businesses, but not necessarily experts in the ins and outs of the intricacies of the Fair Labor Standards Act, they are fighting a compliance battle they cannot hope to win.

As a result, sometimes employees are underpaid. The solution, however, is not creating wage theft statutes that punish employers for unintentional wrongs they cannot hope to correct. Instead, legislators should focus their time and resources to finding a modern solution to a twisted, illogical, and outdated piece of legislation.

In my most recent book, The Employer Bill of Rights: A Manager’s Guide to Workplace Law, I summarized this issue best:

“Congress enacted the FLSA during the great depression to combat the sweatshops that had taken over our manufacturing sector. In the 70 plus years that have passed, it has evolved via a complex web of regulations and interpretations into an anachronistic maze of rules with which even the best-intentioned employer cannot hope to comply. I would bet any employer in this country a free wage-and-hour audit that i could find an FLSA violation in its pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive….

“I am all in favor of employees receiving a full day’s pay for a full day’s work. What employers and employees need, though, is a streamlined and modernized system to ensure that workers are paid a fair wage.”

Do we need to draw attention to the problems posed the FLSA? Absolutely. It misleads, however, to suggest that evil, thieving employers created this mess. Instead, let’s fix the cause of the problem — a baffling maze of regulations called the FLSA.

As for my day? I’m off to draft an answer in an FLSA lawsuit filed against one of my clients.
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 National Labor Relations Act Protects the Rights of Non-employees Under Other Statutes‽

Jon Hyman The Practical Employer

In MEI-GSR Holdings, LLC (5/16/17) [pdf], a two-member majority of the National Labor Relations Board held that an employer violated section 8(a)(1) of the National Labor Relations Act when it banned from its property an ex-employee who had filed against it a wage/hour collective action under the Fair Labor Standards Act.

Let me pause for a second to let this sink in.

The board held that the NLRA protects former employees who assert rights under a law that the board has no jurisdiction to enforce.

Wow.

But, hold on. Chairman Miscimarra is here to save the day. In another of his scorching dissents, he asserts exactly why this decision is incorrectly decided:

Under my colleagues’ position in this case, it constitutes a per se violation of the NLRA whenever any former employee pursuing a non-NLRA employment claim with one or more other employees is denied access to the employer’s private property if other former employees are granted access, even though (i) the former employee has no other right to be on the premises, (ii) the former employee does not seek to engage in NLRA-protected activities on the premises, and (iii) the former employee is not seeking access to the premises for any purpose that relates to the non-NLRA claim. I do not believe that Congress, when enacting the NLRA, intended to guarantee that every former employee would have a right of access to the private property of his or her former employer whenever he or she joined other employees in a non-NLRA lawsuit against that former employer.

It could be that GSR’s action here constituted retaliation for Sargent’s pursuit of the FLSA claim. However, even such a retaliatory motive does not empower the NLRB to defend the interest that Sargent or others may have in pursuing their rights under a different statute. … [T]he FLSA has its own anti-retaliation provision, and we are not permitted to take it upon ourselves to assist in the enforcement of other statutes. The Board was not intended to be a forum in which to rectify all the injustices of the workplace.

Bingo. And while this is only a dissenting opinion, given that President Trump still has two appointments to make to fill the NLRB to capacity (reported to be Marvin Kaplan and William Emanuel, two management-side labor attorneys), it is safe to assume that Mr. Miscimarra’s minority view will soon become the board’s majority view. Thus, while the logic of this decision is certainly troubling, one can rest reasonably comfortably knowing that at some point this year, a majority of the NLRB will no longer wax sympathetically with this viewpoint.

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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Is Your Non-compete Agreement Killing a Fly With a Sledgehammer?

Jon Hyman The Practical Employer

At least half of my legal practice is serving as outside labor-and-employment counsel for small to midsize businesses. And, increasingly, much of that practice is consumed with drafting post-employment covenants, sending cease-and-desist letters to employees who are in violation of said covenants, or filing lawsuits to enforce said covenants; or, conversely, advising a business whether it can hire an employee with a non-compete agreement, responding to cease-and-desist letters, or defending a lawsuit seeking to enforce said covenants.

When a client calls me to draft a restrictive covenant agreement, I must work with that client to determine how wide of a net they need to cast (or how big of a hammer they have to swing). Knowing that most courts only enforce such agreements as necessary to protect an employer’s legitimate interest, I need to determine the scope of the legitimate interest the employer is trying to protect, and is entitled to protect.

  • Are they worried about a theft or disclosure of confidential information? In that case, maybe a non-disclosure agreement is all they need.
  • Are they worried about the employee poaching customers, employees, or vendors? Then a non-solicit is in order (plus the non-disclosure).
  • Or, is what the employee provides so unique in nature that the business genuinely will be irreparably harmed by the employee jumping to a competitor. Then, and only then, is a broad non-competition agreement called for (plus the non-disclosure and non-solicit).

I raise this issue after reading Your Non-Competes Aren’t Saving Your Business, They are Destroying Lives, written by my friend Suzanne Lucas (aka Evil HR Lady). Suzanne argues that “non-compete agreements should be limited to people who could damage your business by going elsewhere. … A non-compete for any other person should be extremely narrowly tailored and probably non-existent.”

Suzanne is 100 percent correct. Employers, use some discretion and common sense. Narrowly tailor your restrictive-covenant agreements to the specific interest(s) you are trying to protect. And, if you don’t have such an interest, forego the agreement altogether for that employee or group of employees. Otherwise, you will spend gaggles of money attempting to enforce an unenforceable agreement. While that strategy is great for me, it’s terrible for your business, which should be in the business of making money, not throwing it away chasing a fool’s errand.

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The Power of Collective Influence, the Cost of Misdiagnosis and More

Andie Burjek, Working Well blog

I recently attended the Midwest Business Group on Health’s 37th annual conference, where they hit the nail on many employer-sponsored benefits related topics.

I was prepared to be very “eye-rolly” about the “employers as superheroes” theme, but, to be honest, I dug it. It meant a lot of corny jokes (who doesn’t appreciate a solid corny joke?) and it meant the speakers, people with impressive careers in the employee benefits space, often identified themselves as a superhero before talking about the heavy stuff.

(My answer: Buffy the Vampire Slayer. She had a stake named Mr. Pointy. She talked like a valley girl. She dusted a lot of vampires. See, it’s fun.)

Here are some of the major takeaways I got from various speakers:

Health Care: Yes, employer-sponsored health care was a priority topic. Needless to say, there is a lot of uncertainty around the GOP health care bill. It doesn’t help that there will be more than one in the future. Although the revived and reconsidered American Health Care Act narrowly passed the House, the Senate is a whole other story. The AHCA is not popular, and the Senate is creating their own health care legislation.

A few panelists and speakers had different things to say about health care. I appreciated the point of view of health care entrepreneur/medical economist JD Kleinke, who made jokes, shared vacation photos and somehow made a session about health care funny. A few things that I found valuable:

  • On consumer-driven health plans: No matter what you do with benefits design, it won’t change the basic fact that people are not rational consumers for any product. And when it comes to feeling better and getting healthy, that doesn’t change. He gave a silly example of people paying twice as much for a brand of cereal that wasn’t very different from the generic brand at all, but people still paid for it. Use the same logic with health care annnnnd … can consumers of health care really be rational consumers if they assume the most expensive option is the best option for them, or for one of their loved ones?
  • He does not expect the AHCA to go through, for a few reasons. One is that half of Americans have pre-existing conditions, he noted. Many Trump voters and Republicans believe that preexisting conditions should be covered (which the AHCA doesn’t do well, many have argued). If their constituents don’t want this, then the legislators voting on the bill probably won’t vote for it.
  • His level of nonchalance about this was noteworthy to me because for employers, the uncertainty around health care is one major stress. How do you make a long-term plan when you don’t know what the health care landscape will look like in 5 years? So, hearing a medical economist speak like this in a way that was not anxious or uncertain was refreshing.

Pharmacy Spend: Cheryl Larson, vice president of the MBGH, and a panel of experts also had a discussion about the relationship between employers and pharmacy benefits managers. PBMs have been in the news a lot recently: A few weeks ago, Anthem broke up with Express Scripts, arguing over $15 billion. This week, Express Scripts announced a deal with drug price transparency company GoodRx to reduce drug prices for the uninsured. Also, states like California and New York are beginning to consider and push forward PBM transparency laws.

This topic was especially interesting for me, as I’m writing on it for the next issue of Workforce. A lot of people have had differing ideas for why prescription drug costs are increasing at such an alarming rate. No matter who’s doing the finger pointing or who’s being pointed at, the key question remains: How do companies contain pharmacy drug spend?

More to come about this from me later for Workforce, but for the time being … what’s been a common theme in this conference and in interviews with various people is the need for collective action, and for employers to work together and share ideas to push for change that will benefit all employers.

Other Noted Takeaways (Thoughts? Comment Below)

  • Consumer-driven health plans won’t lead to major change in health care in the big picture. If we’re just changing how and who pays for care, does it really make a difference?
  • Misdiagnosis is a major cost driver for employer health care costs. Sally Welborn, senior vice president, global benefits, Walmart Stores Inc., noted that inappropriate care (care that should not be delivered) accounts for 30 percent of the GDP spent on health care (which is 18 percent, by the way). “The worst dollar spent is the dollar spent on care that does not need to be delivered,” said Welborn. A solution Walmart uses is centers of excellence.
  • Vision and dental should not be considered side benefits. “We focus so much on medical, we forget about the other two that are integral to the health of the individual,” said one panelist.
  • Obesity is a complicated but necessary issue to deal with in the workplace. As body mass index rises, so do health care costs, presentee-ism and absenteeism costs, and workers’ comp costs. “Telling people with obesity to eat less and move more is like telling someone with depression to cheer up,” said presenter Gabriel Smolarz, quoting Dr. Ayra Sharma, a leading obesity specialist in Canada. This attitude shows lack of understanding of the disease. He also noted that a 5 to 10 percent decrease in body weight can make a significant impact on employees’ health and employers’ cost. What can employers do? I don’t have the answer now, but suggestions are welcome.

Andie Burjek is a Workforce associate editor. Comment below, or email at aburjek@humancapitalmedia.com. Follow Workforce on Twitter at @workforcenews.

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A Benefits Round-up: Thought-provoking Ideas of the Week

Andie Burjek, Working Well blog

Trying something new here: these are some valuable ideas and stories I’ve come across these past couple of weeks.

  1. An Office Schvitz, Anyone?

“Office Sauna: Must-have or Hot Air”: This article highlights a trendy office space in London, one of whose many nontraditional perks include a sauna. One thing this piece does well is point out the downside of perks (“Compare the cost of buying a ping-pong table to offering a living wage, rather than a minimum wage, and you start to cut through to the reality,” says one source) as well as the upside. For example, in an age where people are more inclined to work from home, having office perks can be a good way for people to stay in the office. (Side note: one of my half-baked business ideas is a sauna/spa called “Schvitz Box.” Any investors interested?)

  1. Not an Isolated Incident: Loneliness has Real Consequences

Dr. Jeremy Nobel, medical director of the Northeast Business Group on Health, brought up something very interesting in a recent interview about the mental wellness space: the impact of loneliness and isolation on health. This is one issue that hasn’t been picked up by popular media yet but should be more visible, he said. He added that these two factors contribute to mental health problems like substance abuse, depression and suicide, and that they also have a link to early mortality.

In a time when more companies are adopting mental health programs, I wonder if any of these programs account for these two biggies, loneliness and isolation. Is there a way to tackle these in the workplace? Feel free to share your ideas/ suggestions if you have any.

  1. I’m Too Burned Out to Think of Anymore Kitschy Titles …

Social psychologist Christina Maslach, who gave a very instructive talk on burnout at a conference a few weeks ago, shared this story from HealthLeaders Media: “Beating Clinician Burnout.” The gist? For physicians on a national level, the burnout rate is somewhere between 30 and 50 percent. This means major issues with morale, productivity and turnover.

“Burnout is not, as many believe, a failing of an individual,” the article states. “Rather, it’s a sign that something is amiss within an organization, and that systemic dysfunction can prevent an organization from achieving the desired outcomes of today’s value-based care efforts.”

This piece goes into more detail about the real impact of burnout and how some organizations have dealt with it, for example Vandervilt and its Nurse Wellness Program.

  1. A High Growth Industry

“Pot Industry Cultivates a New Branch with HR”: This is a stellar Workforce article, written by Max Mihelich, on HR in the legal marijuana industry. A lot of solid information here about a “budding” industry. Hehe. What HR professionals do in this space now matters, the article argues, because “the policies and procedures developed over the next few years as the industry grows could set the precedent for how HR departments of dispensaries are run for years to come.”

Another side note: A Mother’s Day distillery tour this past weekend re-sparked my interest in this story because the tour guide made some comparisons between the whiskey biz of the 1900s and the marijuana industry today. For example, during Prohibition, you could literally get a whiskey prescription for medical reasons from your doctor; there were complicated regulations involved with this as well. Looks like the issues surrounding marijuana now are pretty timeless.

Finally, I’d like to mention that I’ll be participating in G&A Partners’ #HRTailgate Twitter chat next week, Tuesday May 23, at 11 a.m. CT. The topic is, “The Evolution of Employee Benefits,” and the other panelists and I will be answering a series of eight questions via Twitter (see below). I’ll be on sharing information from my own sources, stories and research as well as pieces written by other Workforce contributors. For more information, check out this link.

I’ll be participating via this Twitter account: @andie_burjek. Other panelists include Kathryn Moody of HR Dive and Anu Mannathikuzhiyil of G&A Partners. Looking forward to discussing benefits with my fellow panelists and tweeters!

These are the eight questions we’ll be discussing:

  1. What are the most significant trends you are seeing in employee benefit programs?
  2. In your opinion, what is the most valuable benefit or perk a company can offer?
  3. What offerings do you feel best attract new talent and retain employees?
  4. With financial stress as the #1 inhibitor of productivity, what are companies doing to help employees in that facet of the wellbeing space?
  5. From paternal to “paw-ternal” leave, what ways can companies uniquely care for employees who are growing their families?
  6. Should employee benefits be tailored to different generations? Why or why not?
  7. How can companies promote their benefits programs to attract new talent?
  8. Where do you see employee benefits programs heading in the next decade?

Andie Burjek is a Workforce associate editor. Comment below, or email at aburjek@humancapitalmedia.com. Follow Workforce on Twitter at @workforcenews.

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The 9th Nominee for the ‘Worst Employer of 2017’ Is … the Harassment Ignorer

I was going to blog this morning about President Trump’s firing of FBI Director James Comey, and how, if you’re a CEO, and your company is investigating you for some misconduct (or even worse, potential illegal activity) related to your job, it’s bigly not good to fire the person leading the investigation, no matter the excuse you trump up.

Instead, however, today’s nominees are Target Corporation and MarketSource, (which operates mobile-phone kiosks in Target stores). Why do they make my list? Take a look at Abdel-Ghani v. Target Corp. (8th Cir. 5/5/17) [pdf].

Abdel-Ghani, a Palestinian immigrant, worked for MarketSource at a Target Mobile kiosk selling mobile phones. During the two months of his employment, he was subjected to repeated harassment about his ethnicity:

Abdel-Ghani alleged that some of the Target employees called him names like camel jockey, Muslim, Arab, terrorist, and sand nigger, often from behind shelves in the employee backroom. He claims he heard such comments at least ten times during his two months working at the Bloomington Target. He also claimed to have overheard another employee say “[y]ou should be rounded up in one place and nuke[d].”

Abdel-Ghani alleges that he reported the harassment to management of both companies. Instead of investigating the harassment or implementing any corrective action, however, Abdel-Ghani was suspended and fired based on complaints about his interactions with co-workers and customers.

The appellate court affirmed the dismissal of his harassment complaint because the none of “morally repulsive” comments to which he had been subjected were accompanied by threats of violence.

Here, Abdel-Ghani has not alleged facts which show he was subjected to a hostile work environment by Target or MarketSource. Some of the approximately ten comments Abdel-Ghani heard in Target’s backroom may have been “morally repulsive,” but they were not physically threatening. The one physically threatening comment he overheard (referencing being nuked) was not said directly to him. Furthermore, Abdel-Ghani has not shown that any of these comments interfered with his work performance. We conclude that the record does not show he was subjected to a hostile work environment.

Since when does Title VII require that a hostile work environment be accompanied by threats of violence? (Hint: it doesn’t). The standard for a hostile work environment is that the offensive conduct must be so severe or pervasive so as to alter the employee’s terms or conditions of employment.

This employee was subjected to approximately ten hateful and disgusting comments about his ethnicity during the lone two months of his employment. To my management-side sensitives, that meets the pervasiveness standard. Indeed, I could make a good argument that even one “sand nigger” could meet the severity standard. Indeed, as one federal appellate court observed, “Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates.” Regardless, however, you can’t ignore the harassment and do nothing (other than fire the victim).

Congratulations Target and MarketSource for your nomination. If you condone the use of ethnic (or, for that matter, racial, sexual or otherwise) epithets, no matter how many are uttered, you might be the worst employer of 2017.

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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Candidates Hate Your Lame Careers Site

Remember when all you needed to recruit effectively was a basic careers site that had a link to your applicant tracking system and a PDF of the overly aspirational company values designed by your founder that everyone you worked with loved to snicker at?

Bonus points if you had stock photos on that career site of a group of seven people (it’s a stock photo), all with perfect teeth and representing just the right amount of diversity as a group.

Remember those days? Me too.

The proliferation of transparency brought on by social media and workplace-centric solutions like Glassdoor means that candidates can smell a phony company story a mile away.

That means if you’ve still got the stock photos and old company values up, as well as offering visitors to your careers site nothing but a listing of jobs, you’re in trouble.

That’s why an emerging talent trend in 2017 is recruitment marketing, loosely defined as a collection of services and products designed to help you put your company’s best foot forward to candidates who might want to work for you.

Revamp your image using some of the tools in the emerging recruitment marketing suite and candidates will consider your company’s story as more real/authentic/desirable, which translates to increased candidate engagement as well as better conversion in the classic apply/interview/hire recruiting funnel.

If you’re new to the recruitment marketing game, here are the things you need to think about to upgrade your careers brand and keep up with the times.

Employer value proposition: You’ve probably got company values, right? Not enough these days. Candidates increasingly want to know “what’s in it for me” (the WIIFM) to work at your company. If you do EVP right, you’ll end up with three to five themes that answer the WIIFM question for your company, which provides structure and direction for where you go with your careers site. You get extra credit if at least one of the themes is borderline negative, because candidates love it when you can be self-reflective.

Career site upgrade: Your careers site probably sucks. To remodel, think about wrapping your open jobs with stories and real images from inside your company with laser focus. That focus should be on the aforementioned EVP themes as well as content focused on delivering candidates to your most difficult-to-fill jobs. HR and talent acquisition pros routinely struggle with this advice, but it’s critical that you become selfish related to the space on your careers site — it’s not HR, it’s marketing. The space and focus is reserved for your recruiting goals, which starts with the hard, not easy-to-fill positions.

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Your careers site probably sucks. Wrap your open jobs with stories and real images… not stock photos.

Content is king: The best careers-site strategies deploy a frequently recurring content strategy, meaning you must post a new piece of content at least once a week. That means you should have someone on your team that can interview and write quick-hitting features or find a partner who can. This seems like overkill to some, but stay with me because the careers site is simply where the focused content is stored.

Careers social strategy: Once you’ve got a refreshed careers site, it’s time to start thinking social. Many employers make the mistake of simply posting open jobs to social accounts, but that’s not enough. A real careers social strategy emphasizes audience building (gaining followers) and uses the growing social presence to share the fresh content with the world. An important consideration is whether to use the existing corporate social accounts or build stand-alone, careers-focused accounts.

Talent tools, email campaigns and marketing chops: Any deep recruitment marketing project undertaken by HR or recruiting is going to morph into things that look like pure marketing. Talent pools, regardless of how they’re captured, are nothing but focused “opt-ins” to give you the ability to communicate with potential future hires moving forward. Remember that focused content I talked about earlier? We’re doing that content not only to beef up the careers site and have something to share via social, but also to run email marketing campaigns with relevant content. A good email marketing campaign to a talent pool can have an open rate above 50 percent — something your marketing director would trip her grandmother for.

The simple plan of building a better careers site with content that cuts through the clutter, then sharing that content in a systematic way via social and traditional marketing techniques is at the core of any successful recruitment marketing strategy.

Do these things well and the candidates will reward you. Ignore the advice and they’ll laugh at your online recruiting brand as they close the window in their browser, never to return.

Kris Dunn, the chief human resources officer at Kinetix, is a Workforce contributing editor. Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.

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Are You Using the Diversity Leaders in Your Organization?

I’m a sucker for packaging. It’s probably because I’m in the media and headlines are my business. I live for messaging that hooks and reels you in like a caught fish. The right word combo — you’ve got all my attention.

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An expert contends there are 150 unconscious biases in play at our brain at any given time. Technology can nudge hiring managers to align with the company’s diversity and inclusion goals.

For instance, I ran across The Only Way to Beat Unconscious Biases in the Workplace a few days ago. I mean, come on. That headline is perfect, right?

The article was good too — though the headline was better — it discussed methods talent leaders can use to tackle unconscious bias, specifically HR technology systems. Hint: It has nothing to do with the user experience and everything to do with what the author called, the nudge.

Apparently when the idea of relieving HR processes of bias comes up, technology system decision-makers in the market at-large are often peppered with questions about whether they plan to replace HR with artificial intelligence. I’d wager, aside from companies firmly entrenched in the tech industry, few organizations have any such plan, but I agree with one idea presented in the piece: It pays to take a holistic look at HR, with innovations like machine learning as one facet to consider. You don’t want to lose the human touch, nor do you want to cut HR leaders off from the rich data streams technology provides. Data they can use to make better, more sustainable recruitment and talent-related decisions.

But it was the suggestion that CDOs are poorly positioned in the HR decision-making hierarchy that really caught my eye. Patti Fletcher, leadership futurist and solution management at SAP SuccessFactors, “said that while chief diversity officers are on the rise, that hasn’t necessarily translated into measurable results … designated diversity leaders rarely have a seat at the table when it comes to human capital management technology purchasing decisions.”

Technology is ubiquitous in the modern workplace. Successful organizations have made gadgetry another kind of employee in areas throughout the employee lifecycle. Talent leaders of all kinds rely on systems to do their jobs: hiring, recruitment, retention, engagement, promotion, succession planning, etc. If diversity leaders can’t influence technology purchasing decisions in the context of talent or people strategy, that’s a huge disconnect.

It also brings up a few questions:

  • How dialed in is the CDO with the company’s overall talent/HR strategy?
  • Is the CDO an active partner working closely with talent leaders to ensure that systems and processes promote a diverse and inclusive workforce that is as free from bias as possible?
  • If not, why not?
  • What is their sphere of influence? Who do they report to? Who holds their ear?

But back to the nudge. “We know the blame and shame game doesn’t work when it comes to addressing bias,” said Fletcher. “We’re finding out what does work is the nudge factor. There are 150 unconscious biases in play at our brain at any given time, and technology can literally interrupt decisions, nudging hiring managers to align with the company’s diversity and inclusion goals.”

Good grief. How can there be 150 unconscious biases in our brains at any given time? That’s just, wow. They can’t mean all at once. I couldn’t name that many biases if you paid me. But if you ever had a doubt that you have been or will at some point fall prey to bias, that number should give you significant pause.

“This is not about replaying the old human vs. machine tapes,” Fletcher explained. “When technology can take everything about someone — credentials, experience, cultural fit — and find the ideal match based on what the machine has learned about what it takes to be successful at your business, this fundamentally changes the role of HR.”

And it goes without saying, it makes things more complicated. That’s why it’s so important that diversity and talent leaders work together to untangle the best ways to find, assess, keep and promote talent. Diversity, inclusion and talent are not ideas that can be kept separate. If these silos exist, I bet that organization’s diversity plan is more of an idea than it is a strategy. Unless diversity is a sop, which is infinitely worse.

Whether it’s using technology to promote the nudge, being more thoughtful about the wording in job postings, or any of the other hundred HR-diversity related tasks leaders face each day — lean on the people who have made diversity and inclusion their business. Pick their brains. Ask their opinion. Loop them in. If you have a diversity leader, that’s what they’re there for. If you don’t use them as a resource, what’s the point?

Kellye Whitney is associate editorial director for Workforce. Comment below or email editor@workforce.com.