Category: Commentary & Opinion

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New Surveys Reveal That Most Employees Favor Paid Leave and Flexible Schedules

Jon Hyman The Practical Employer

America remains the only industrialized nation that doesn’t mandate some level of paid maternity and/or family leave for employees. Meanwhile, while the FMLA provides 12 weeks of unpaid leave, many will tell you that benefit is woefully inadequate for employees. Indeed, more than 40 percent of employees are not covered by the FMLA and are not eligible to take FMLA leave.

http://dilbert.com/strip/2013-05-10

Thus, the results of a recent survey conducted by the Pew Research Center should surprise few.

Chew on these key findings:

  • 85 percent say that workers should receive paid leave for their own serious health conditions
  • 82 percent say that mothers should receive paid leave following the birth or adoption of a child
  • 69 percent say that fathers should receive paid leave following the birth or adoption of a child (notice the disparity, and what this says about our deeply held stereotypes over the roles of mothers versus fathers in the family and in the workplace)
  • 67 percent say that workers should receive paid leave to care for a family member with a serious health conditions
Yet, despite the call for paid leave, only the smallest of majorities (51 percent) believe it should be a government mandate, with the remainder holding that it should be up to each employer to provide it as a benefit. And, when asked to rank public policy priorities for 2017, paid family leave came in dead last at 35 percent.
Meanwhile, another survey suggests that most employees (60 percent) value flexible work schedules more than any other benefit, and the ability to work from home or set one’s own schedule (65 percent) more than how much one earns. Why do I mention these statistics? Because it is clear that workers need and value flexibility, and if you are not going to offer paid leave to accommodate these needs, then you should be considering flexible work schedules and telework as an option for those for whom it makes sense.
“Employees aren’t productive at home,” you say. SHRM begs to differ, reporting, “Telecommuters log five to seven more hours per week than non-telecommuters, often working even when they’re sick or on vacation.”
What does all this mean? Paid leave and telecommuting are tangible benefits that promote work-life balance. If employees value these benefits as highly as these surveys suggest, why aren’t you offering them to your employees?
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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When Will Employees Learn That Online Comments Can and Will Be Used Against Them?

Jon Hyman The Practical Employer

I recently gave two different speeches discussing the balance between an employee’s privacy and an employer’s right to know. One of the themes is that social media has irreparably blurred the line between one’s personal persona and one’s professional persona, and employees best be careful with that they say online, because employers are watching and holding them accountable.

Case in point? Buker v. Howard County (4th Cir. 3/20/17) [pdf].

Buker concerns a fire department battalion chief fired because of series of posts (his spelling, not mine) to his personal Facebook page.

My aide had an outstanding idea . . lets all kill someone with a liberal . . . then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal . . . its almost poetic . . .

and

To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirley in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I’m not scared or ashamed of my opinions or political leaning, or religion. I’m happy to discuss any 8 of them with you. If you’re not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On.

and

Unfortunately, not in the current political climate. Howard County, Maryland, and the Federal Government are all Liberal Democrat held at this point in time. Free speech only applies to the liberals, and then only if it is in line with the liberal socialist agenda. County Governement recently published a Social media policy, which the Department then published it’s own. It is suitably vague enough that any post is likely to result in disciplinary action, up to and including termination of employment, to include this one. All it took was one liberal to complain . . . sad day. To lose the First Ammendment rights I fought to ensure, unlike the WIDE majority of the Government I serve.

Additionally, Buker “liked” a photo, posted by a co-worker, of an elderly woman with her middle finger raised, captioned: “THIS PAGE, YEAH THE ONE YOU’RE LOOKING AT IT’S MINE[.] I’LL POST WHATEVER THE FUCK I WANT[.]”

He also “liked” a racist comment by a co-worker to his “beating a liberal to death” post, which suggested that Buker “pick a black one.”

Based on the totality of these posts, the department fired Buker.

The court had little problem affirming the lower court’s decision dismissing Buker’s claims.

For several reasons, we conclude that the Department’s interest in efficiency and preventing disruption outweighed Plaintiff’s interest in speaking in the manner he did regarding gun control and the Department’s social media policy. First, Plaintiff’s Facebook activity interfered with and impaired Department operations and discipline as well as working relationships within the Department. … Second, Plaintiff’s Facebook activity significantly conflicted with Plaintiff’s responsibilities as a battalion chief. … Third, Plaintiff’s speech frustrated the Department’s public safety mission and threatened “community trust” in the Department, which is “vitally important” to its function. … Fourth, Plaintiff’s speech—particularly his “like” of the image depicting a woman raising her middle finger—“expressly disrespect[ed] [his] superiors.” Lastly, we observe that the record is rife with observations of how Plaintiff’s Facebook activity … disregarded and upset the chain of command upon which the Department relies.

In sum, we conclude the Department’s interest in workplace efficiency and preventing disruption outweighed the public interest commentary contained in Plaintiff’s Facebook activity.

Let me put it a more practical way. Employees have not yet realized that anything they say online can impact their professional persona, and that every negative or offensive statement could lead to discipline or termination. Until people fully understand that social media has erased the line between the personal and the professional, these issues will continue to arise. It is our job as employers to help educate our employees about living in this new online world, because it is clear that not all employees have yet learned this lesson.

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

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When You Use the Word Victim …

Whenever I see the word “victim” in a diversity context I always want to roll my eyes. Not because it’s completely false, but because historically discriminated against groups are already behind the eight ball in so many ways; why slap that pitiful label on us, too?

Labels have power. They prompt negative and positive associations — usually negative — and when it comes to diversity, labels can have layers of bias attached to them as well. The word victim inspires crappy adjectives and images around weakness, pain, suffering, helplessness. Ew.

So, when a release on new research from VitalSmarts crossed my desk this week, I paid attention. The leadership training company asked 500 victims of discrimination — their words, not mine — to share workplace experiences that made them feel excluded, unwelcome, discounted, etc. based on their race, gender, age and a host of other diversity-related criteria.

Now, I’m a journalist, so I always give the word research a gimlet eye. Many studies, even with participant pools this substantial, don’t always pass the sniff test when it comes to credibility or academic validity. You have to beware of agendas, hidden or otherwise, from the research hosts. I’m not saying this research is cracked — I’ve worked with VitalSmarts before — I’m just acknowledging there could be some bias here that I’m not aware of. For instance, I don’t know how these alleged victims were selected.

diversity and victimsI talked to my colleague Sarah Kimmel, the director of research at Human Capital Media — home of Workforce magazine — and she said this research looked “fuzzy” and should certainly be considered anecdotal. But it’s not to be completely discounted because the resulting analysis from these vctims’ stories is confined to this particular survey pool.

After analyzing the stories, David Maxfield, vice president of research at VitalSmarts, and Judith Honesty, CEO of Honesty Consulting, found workplace bias to be pervasive, permanent and unmanageable for victims. Specifically:

  • Pervasive: 49 percent of victims said the discrimination happens regularly in their workplace.
  • Permanent: 66 percent of victims said it has a large impact on their engagement, morale, motivation, commitment and desire to advance in the organization.
  • Unmanageable: 60 percent of victims said they did not feel they could master incidents of bias in the moment or prevent them from recurring in the future.

Maxfield and Honesty used American psychologist and author Martin Seligman’s work on learned helplessness to measure the impact of discrimination on employee behavior: frustration, stress, depression and helplessness. They also identified seven themes in the stories indicating the most prevalent types of workplace discrimination. They are:

  1. Don’t Be Yourself. Employees are warned to avoid showing who they really are — i.e. to avoid talking about her “wife,” to dress in a more “feminine” way etc.
  2. You’re Not Credible. Employees are interrupted and discounted, excluded from meetings, passed up for high-visibility assignments or promotions, etc. Others hint the perceived lack of credibility is the result of race, sex, age etc.
  3. Oops, Just Kidding. A manager or co-worker makes a blatant racist, sexist, intolerant comment to a colleague and then tries to walk it back.
  4. Anything Goes After Hours. A manager or co-worker makes blatantly racist, sexist, or intolerant comments/jokes about others — customers, people in the news, etc. They feel it’s OK because they’re not at work or because they aren’t talking about an employee.
  5. You’re Unwelcome. Employees are excluded from conversations at both work and social gatherings. Co-workers or managers “forget” to invite them to meetings or give them information they need to do their job. Others fail to socialize with them or change the subject or stop socializing when they join.
  6. Gotcha. A manager or co-worker seeks to tear down their colleague or believes others, even when they aren’t credible; dishes out unequal punishments; finds faults to the extent of distorting the truth.
  7. Unconscious Bias: Women, minority, or older employees are told they “lack executive presence,” “don’t fit our culture,” “are too aggressive” even though their performance would be seen as exemplary in a white, male or younger employee.

Whether this study is as sound as a drum or worthy of the side eye, there’s enough truth here to give HR and diversity leaders serious pause. These seven themes reveal a trend of subtle and harmful discrimination in the workplace that people you know or see every day on the job are experiencing. That’s not good.

“We catalogued hundreds of moments where victims were left questioning others’ intentions and their own perceptions,” Honesty said in the release. “The inner litany sounds a bit like, ‘I’m upset, but I don’t know if I should be, or if I have a right to be.’ At best, this shadowy bias is exhausting. At worst, it’s soul destroying to both the individual and the organization.”

Preach.

As much flak as diversity-themed training gets for its lack of effectiveness, it’s necessary to combat this kind of discrimination. Unconscious bias training, for instance — if done well — can help to root out the biases we all have but are often unaware of; building awareness is the first step on the road to positive behavioral and cultural change. Then comes the learning. Specifically, how to deal with and prevent the aftermath — low engagement, high turnover, poor retention, subpar performance.

There are no quick fixes to these kinds of problems, but if organizations are willing to make a long-term commitment to build an organizational culture that is not only diverse but inclusive, the business impact — more innovation, higher engagement, easier recruiting and greater performance — can make it all worthwhile. And “victims” becomes just another unfortunate word.

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

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A Supreme Case on Arbitration

Jon Hyman The Practical Employer

In AT&T Mobility v. Concepcion, the United States Supreme Court held that a business could compel a group of individuals to waive their right to file a class-action lawsuit and instead arbitrate their collective dispute. Employers rejoiced, believing that they finally had the weapon they needed to battle the scourge of wage-and-hour class actions. 

The National Labor Relations Board, however, had different ideas.

In its seminal 2012 decision, D.R. Horton Inc., the NLRB held that an arbitration agreement violated the National Labor Relations Act’s protections for employee concerted activity. The facts are pretty straightforward. The employer required all of its employees, as a condition of their employment, to sign a master arbitration agreement, under which they agreed:

To submit all disputes and claims relating to their employment to final and binding arbitration.

That the arbitrator “may hear only … individual claims,” and “does not have authority to fashion a proceeding as a class or collective action or to award relief to a group or class of employees in one arbitration proceeding.”

To waive “the right to file a lawsuit or other civil proceeding relating to … employment with the Company.”

The NLRB concluded that the agreement “unlawfully restricts employees’ Section 7 right to engage in concerted action for mutual aid or protection,” and held that the employer “violated Section 8(a)(1) by requiring employees to waive their right to collectively pursue employment-related claims in all forums, arbitral and judicial.”

In the four years since they decided D.R. Horton, the NLRB has invalidated too many similar arbitration agreements and class-action waivers to count, and further expanded D.R. Horton to make it nearly impossible for any class-action waiver to pass muster. The board has even gone so far as to invalidate agreements that expressly carve out the right for employees to pursue claims with state and federal administrative agencies such as the NLRB.

In the board’s opinion, even those agreements are illegal because rank-and-file employees aren’t lawyers and aren’t capable of reading and understanding the agreement: “Viewed from an employee’s perspective … it would take ‘specialized legal knowledge’ to determine whether employees’ right to file Board charges is permitted or precluded by these caveats.”

On appeal, however, not all federal circuit courts have been kind to D.R. Horton. The 5th Circuit overturned D.R. Horton itself, while other circuits have sided with the NLRB on this important issue.

Now, however, the Supreme Court is poised to have the final say. It has agreed to hear the appeal of three cases, which should put this issue to bed once and for all.

In NLRB v. Murphy Oil USA (5th Cir., holding that the “corporation did not commit unfair labor practices by requiring employees to sign its arbitration agreement or seeking to enforce that agreement in federal district court.”); Lewis v. Epic Systems (7th Cir., holding that an arbitration agreement that “precludes employees from seeking any class, collective, or representative remedies to wage-and-hour disputes” violates the NLRA); and Morris v. Ernst & Young LLP (9th Cir., agreeing with Lewis, holding that “an employer violates the National Labor Relations Act by requiring employees to sign an agreement precluding them from bringing, in any forum, a concerted legal claim regarding wages, hours, and terms and conditions of employment.”), the justices agreed to decide whether agreements to require employees to forgo class actions or collective proceedings, and instead resolve employment disputes via individual arbitration, violate the NLRA.

How the Supreme Court decides this issue is of critical importance to employers. Wage-and-hour class actions are one of the biggest risks that employers face.

The law that governs the payment of minimum wage and overtime in the country, the Fair Labor Standards Act, is more than 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. And the prize for noncompliance is the cost of defending a class-action lawsuit.

Employers desperately need the Supreme Court to overturn D.R. Horton so that they can recapture a key weapon against the wage-and-hour class actions.

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

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The 8th Nominee for Worst Employer of 2017 Is … the Cancerous Boss

Jon Hyman The Practical Employer

“Jon, you write a management-side blog. Why are you running a contest to find the worst employer of 2017?”

Because of employers like this one (via Courthouse News):

Plaintiff was diagnosed with kidney cancer and required immediate surgery to remove the tumor. Defendant Slutskaya denied his request for a 10-day leave of absence and told plaintiff she doesn’t “need people with cancer working in her office” and further stated, “this is America and in America you have to work even if you’re sick.” After berating him because of his illness, she finished by informing him that “with your illness [cancer], people die and I cannot keep you as a worker not knowing what is going to happen to you.”

Using the worst employers to teach those who are better intentioned regarding the correct (and legal) way to manage employees is an invaluable tool. I have a strong suspicion that this employer will have a strong showing when we sort out the worst from the really worst at year’s end.

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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SCOTUS Takes Largely Meaningless Swipe at Obama’s NLRB Legacy

Jon Hyman The Practical Employer

There is little doubt that under President Obama, the NLRB reinvented itself into an agency about which all employers must pay attention. One can trace much of this reinvention back to Lafe Solomon (a man with whom I once shared an NRP microphone), the NLRB’s acting general counsel from June 2010 through October 2013.

Yesterday, however, in NLRB v. SW General, Inc. [pdf], the Supreme Court held that Mr. Solomon’s tenure from January 5, 2011, through October 29, 2013, was unlawful, as it violated the Federal Vacancies Reform Act of 1998 (FVRA).

What is the FVRA (besides a statute I had never heard of until yesterday)? It provides the succession plan for certain federal appointments (such as NLRB general counsel), and authorizes the President to override its automatic succession via temporary appointments (as President Obama did when he appointed Mr. Solomon acting general counsel). The FVRA also prohibits someone from serving as an acting officer if the President has nominated that person to fill the vacant office permanently (as President Obama did with Mr. Solomon on January 5, 2011).

The specific question SCOTUS answered in SW General is whether the FVRA equally applies to individuals already serving in that same position (as Mr. Solomon had been since June 2010) at the time of his or her official nomination to fill the vacancy permanently. SCOTUS held that the FVRA’s prohibition applied to Mr. Solomon even though he had already been serving as NLRB acting general counsel at the time of his nomination.

This is all very interesting reading on the inner workings of our federal government, and the power, ability, and willingness of the Supreme Court to check presidential powers (a very important issue about which I predict we will be hearing a lot over the next four years).

The deeper question, however, is what this case means to decisions rendered by the NLRB on complaints authorized by Mr. Solomon during his unlawful tenure as NLRB general counsel. The answer is likely very little. And the key to why it means very little hides in footnote 2 of the opinion:

The FVRA exempts “the General Counsel of the National Labor Relations Board” from the general rule that actions taken in violation of the FVRA are void ab initio. 5 U. S. C. §3348(e)(1). The Court of Appeals “assume[d] that section 3348(e)(1) renders the actions of an improperly serving Acting General Counsel voidable” and rejected the Board’s argument against voiding Solomon’s actions. The Board did not seek certiorari on this issue, so we do not consider it.

In other words, because the NLRB did not appeal the void-versus-voidable issue, SCOTUS did not consider it. And this distinction is huge. If the actions of an improperly serving Acting General Counsel are void, then all Board decisions that flowed from those actions automatically become invalid. Because, however, they are merely voidable, the losing party must do something (i.e., file some sort of court action to vacate the decision) to secure the undoing of the otherwise unlawfully rendered decision. And, because these cases are up to six years old, many, if not most, are going to be closed, and statutes of limitations will foreclose any further action. (I’ll leave to others who have more free time on their hands than me to categorize the voidable cases as “closed” or “subject to further action”.)

Thus, while SW General is intellectually interesting, it will likely have little impact on President Obama’s NLRB legacy, a legacy that President Trump’s NLRB will likely undo over the next four years anyway.

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

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EEOC Offers Sage Advice on Following Checklists for Harassment Compliance

The EEOC last June issued a comprehensive, bipartisan report on harassment in the workplace. The report’s stated purpose was to “reboot workplace harassment prevention efforts” by focusing on efforts employers can take “in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated; ensuring employees are held accountable; and assessing and responding to workplace “risk factors” for harassment.”

One such tool the EEOC provided was a series of four checklist for employers to use to create an effective harassment prevention program.

  • Leadership and accountability.
  • Anti-harassment policies.
  • Harassment reporting systems and investigations.
  • Compliance training.

At last week’s SHRM Legislative Conference, EEOC Commissioner, and one of the co-chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace, Chai Feldblum, reiterated the importance and usefulness of these checklists. Because the EEOC feels so strongly about the utility of these lists for employers, I’m sharing them in full.

Checklist One: Leadership and Accountability

The first step for creating a holistic harassment prevention program is for the leadership of an organization to establish a culture of respect in which harassment is not tolerated. Check the box if the leadership of your organization has taken the following steps:

  • Leadership has allocated sufficient resources for a harassment prevention effort
  • Leadership has allocated sufficient staff time for a harassment prevention effort
  • Leadership has assessed harassment risk factors and has taken steps to minimize those risks

Based on the commitment of leadership, check the box if your organization has the following components in place:

  • A harassment prevention policy that is easy-to-understand and that is regularly communicated to all employees
  • A harassment reporting system that employees know about and is fully resourced and which accepts reports of harassment experienced and harassment observed
  • Imposition of discipline that is prompt, consistent, and proportionate to the severity of the harassment, if harassment is determined to have occurred
  • Accountability for mid-level managers and front-line supervisors to prevent and/or respond to workplace harassment
  • Regular compliance trainings for all employees so they can recognize prohibited forms of conduct and know how to use the reporting system
  • Regular compliance trainings for mid-level managers and front-line supervisors so they know how to prevent and/or respond to workplace harassment

Bonus points if you can check these boxes:

  • The organization conducts climate surveys on a regular basis to assess the extent to which harassment is experienced as a problem in the workplace
  • The organization has implemented metrics for harassment response and prevention in supervisory employees’ performance reviews
  • The organization conducts workplace civility training and bystander intervention training
  • The organization has partnered with researchers to evaluate the organization’s holistic workplace harassment prevention effort

Checklist Two: An Anti-Harassment Policy

An anti-harassment policy is a key component of a holistic harassment prevention effort. Check the box below if your anti-harassment policy contains the following elements:

  • An unequivocal statement that harassment based on any protected characteristic will not be tolerated
  • An easy-to-understand description of prohibited conduct, including examples
  • A description of a reporting system – available to employees who experience harassment as well as those who observe harassment – that provides multiple avenues to report, in a manner easily accessible to employees
  • A statement that the reporting system will provide a prompt, thorough, and impartial investigation
  • A statement that the identity of an individual who submits a report, a witness who provides information regarding a report, and the target of the complaint, will be kept confidential to the extent possible consistent with a thorough and impartial investigation
  • A statement that any information gathered as part of an investigation will be kept confidential to the extent possible consistent with a thorough and impartial investigation
  • An assurance that the employer will take immediate and proportionate corrective action if it determines that harassment has occurred
  • An assurance that an individual who submits a report (either of harassment experienced or observed) or a witness who provides information regarding a report will be protected from retaliation from co-workers and supervisors
  • A statement that any employee who retaliates against any individual who submits a report or provides information regarding a report will be disciplined appropriately
  • Is written in clear, simple words, in all languages commonly used by members of the workforce

Checklist Three: A Harassment Reporting System and Investigations

A reporting system that allows employees to file a report of harassment they have experienced or observed, and a process for undertaking investigations, are essential components of a holistic harassment prevention effort. Check the box below if your anti-harassment effort contains the following elements:

  • A fully-resourced reporting process that allows the organization to respond promptly and thoroughly to reports of harassment that have been experienced or observed
  • Employer representatives who take reports seriously
  • A supportive environment where individuals feel safe to report harassing behavior to management
  • Well-trained, objective, and neutral investigators
  • Timely responses and investigations
  • Investigators who document all steps taken from the point of first contact and who prepare a written report using guidelines to weigh credibility
  • An investigation that protects the privacy of individuals who file complaints or reports, individuals who provide information during the investigation, and the person(s) alleged to have engaged in harassment, to the greatest extent possible
  • Mechanisms to determine whether individuals who file reports or provide information during an investigation experience retribution, and authority to impose sanctions on those who engage in retaliation
  • During the pendency of an investigation, systems to ensure individuals alleged to have engaged in harassment are not “presumed guilty” and are not “punished” unless and until a complete investigation determines that harassment has occurred
  • A communication of the determination of the investigation to all parties and, where appropriate, a communication of the sanction imposed if harassment was found to have occurred

Checklist Four: Compliance Training

A holistic harassment prevention effort provides training to employees regarding an employer’s policy, reporting systems and investigations. Check the box if your organization’s compliance training is based on the following structural principles and includes the following content:

Structural Principles

  • Supported at the highest levels
  • Repeated and reinforced on a regular basis
  • Provided to all employees at every level of the organization
  • Conducted by qualified, live, and interactive trainers
  • If live training is not feasible, designed to include active engagement by participants
  • Routinely evaluated and modified as necessary

Content of Compliance Training for All Employees

  • Describes illegal harassment, and conduct that, if left unchecked, might rise to the level of illegal harassment
  • Includes examples that are tailored to the specific workplace and the specific workforce
  • Educates employees about their rights and responsibilities if they experience conduct that is not acceptable in the workplace
  • Describes, in simple terms, the process for reporting harassment that is experienced or observed
  • Explains the consequences of engaging in conduct unacceptable in the workplace
  • Content of Compliance Training for Managers and First-line Supervisors
  • Provides easy-to-understand and realistic methods for dealing with harassment that they observe, that is reported to them, or of which they have knowledge or information, including description of sanctions for failing to use such methods
  • Provides clear instructions on how to report harassing behavior up the chain of command, including description of sanctions for failing to report
  • Encourages managers and supervisors to practice “situational awareness” and assess the workforces within their responsibility for risk factors of harassment

As the EEOC reiterates in its report, the checklists are “meant to be a useful tool in thinking about and taking steps to prevent harassment in the workplace, and responding to harassment when it occurs. … Checking all of the boxes does not necessarily mean an employer is in legal compliance; conversely, the failure to check any particular box does not mean an employer is not in compliance.” While checking the boxes may not equal legal compliance, it provides a great tool to talk about legal compliance among HR, managers, supervisors, legal and ownership/C-suite, and you cannot bring your organization into compliance without these important conversations.

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

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Diversity Should Be Selfish

What the h-e-double hockey sticks with this headline, right? Why on earth would I promote the idea that diversity should be selfish? What about inclusion? Unity? Collaboration? Equality? It all depends on who’s being selfish and why.

Earlier this month I found this article on Forbes.com. In it staffer Katheryn Thayer detailed the story of Dots, a 4-year-old mobile app gaming company helmed by co-founder and CEO Paul Murphy. According to the article, he built his company to “make something that would appeal to everyone, not just gamers.”

Since his primary customer base, or players are women, he hired a lot of them, building a 50-person company comprised mostly of women or racial or ethnic minorities. Unlike others in the tech industry, he said doing so wasn’t hard. He lured them in with a flexible work environment, opportunities for development, and deliberately reached out to anyone whose network included the female talent he was trying to acquire. Now, “at Dots, women hold leadership roles in the development, game design, product, marketing, operations and finance teams.”

After that initial wave of women was working, others followed, as like attracted like. Thayer wrote, “Dots also sought cultural diversity for what Murphy calls a ‘selfish reason.’ ”

diverse workplace
A team-first attitude can help unify a diverse workplace.

“Our game is played globally. It’s got a hundred million people that have downloaded and played our products and we think it’s really important that we have a team that reflects in some way the diversity of our player base.” So they’ve made an effort to hire employees from across Asia, Europe and the Americas. “We wouldn’t have been able to build the company without them here.”

We can infer three things from Murphy’s actions:

  1. If you look for and make them welcome, you can find female tech talent.
  2. The quickest way to make a successful diversity strategy work is to ensure top executives take an active role in its creation and execution.
  3. Being selfish is not always a bad thing.

This version of selfish is actually inclusive, unified, collaborative, and most importantly it’s diverse. Or, some facets of it are. I will admit that a primarily female staff might not pass the sniff test under conventional definitions for diversity, but contextually? That’s a different thing.

Bottom line? Diversity can be achieved. Even in industries where its presence has not historically been of value, if leaders believe in the business case and take talent-oriented steps to bring about its deliverance: networking to facilitate recruiting, creating the right culture to support business and talent goals, and ensuring that the global marketplace at large knows of the company’s position on diversity and inclusion in the workplace.

According to the article Dots’ international staff were, shall we say, displeased with the recent travel ban. It “hit a nerve for us,” Murphy said. To make it crystal clear the company did not support the ban or that the actions reflected its values, Dots created an in-app pop-up to fundraise for the American Civil Liberties Union.

“In a single Saturday night, Murphy says the team developed a dozen translations of their message and worked out cultural nuances that might affect how players in specific regions, such as Taiwan versus mainland China, might interpret it.” Dots couldn’t track how much money players donated to the ACLU, but their reports showed their efforts drove 500,000 players to donation pages in a single weekend in late January.

I’m sure building Dots’ diverse workforce wasn’t quite as easy and straightforward as it seemed in this article. But it proves that with a little strategy and effort, it can be done.

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

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Swapping DNA for Lower Insurance Costs Is One Wellness Step Too Far

Jon Hyman The Practical Employer

It is no secret that health care costs for employers and their employees are out of control. Many employers have attempted to hold down these rising costs by offering wellness-program incentives.

The EEOC has signed off on these programs as legal as long as employee participation remains voluntary, which the agency defines as financial incentives for employee participation at or below 30 percent of the cost of coverage. Thus, employees have a choice — participate in the wellness program or pay a surcharge of up to 30 percent.

One area that has remained off limits for employers under these wellness programs, however, has been genetic testing and other personal and family medical histories. A new bill moving through the House of Representatives, however, aims to change that.

HR 1313 — the Preserving Employee Wellness Programs Act [pdf] — seeks to clarify exactly how much personal health data employers can ask their employees to disclose as part of a wellness program, including personal and family medical histories.

Currently, under both the ADA and GINA, employers cannot ask employees about their own personal medical histories and those of their family members as a pre-condition to participation in a wellness program. All employers can do is access anonymous aggregated data collected via wellness programs.

HR 1313 would amend the law to allow employers to ask an employee for his or her personal and family medical histories (which could include historical genetic testing). The disclosure remains voluntary, because an employee could always refuse to disclose and pay the EEOC’s 30 percent surcharge to retain coverage.

This bill is scary. I am admittedly biased on this issue, as my family medical history has a big genetic piece. While I don’t hide Donovan’s Noonan Syndome, I also don’t want to face the Hobson’s choice of disclosing it to my, or my wife’s, employer or paying significantly more for our medical insurance.

Yes, health care and health insurance costs in the country are a big problem. And we must do something to fix it. I do not have the solution (health care is so complicated). I am confident, however, that whatever that solution is, it is not asking employees to sacrifice this amount of personal privacy in exchange for lower insurance premiums.

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

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The 11th Circuit’s Odd LGBT Discrimination Decision

Jon Hyman The Practical Employer

The 11th Circuit Court of Appeals, in Evans v. Georgia Regional Hosp. [pdf], recently held that Title VII does not protect sexual-orientation discrimination per se, and that to sufficiently plead such a cause of action under Title VII, one must allege facts sufficient to establish that the employer discriminated based on non-conformity with sex-based stereotypes. 

As such, this decision directly conflicts with the formal position of the EEOC (a priority that EEOC Commissioner Chai Feldblum announced will not change under President Trump), and expected decision by the 2nd and 7th Circuits.

The most curious aspect of the decision, however, comes from the concurring opinion of Judge William Pryor (whom President Trump had considered to fill Justice Antonin Scalia’s Supreme Court seat).

The unsurprising reality that some individuals who have experienced discrimination because of sexual orientation will also have experienced discrimination because of gender nonconformity by no means establishes that every gay individual who experiences discrimination because of sexual orientation has a “triable case of gender stereotyping discrimination.” …

By assuming that all gay individuals behave the same way or have the same interests, the Commission and the dissent disregard the diversity of experiences of gay individuals. Some gay individuals adopt what various commentators have referred to as the gay “social identity” but experience a variety of sexual desires. … Like some heterosexuals, some gay individuals may choose not to marry or date at all or may choose a celibate lifestyle. And other gay individuals choose to enter mixed-orientation marriages.

Perhaps the best counter-argument to this position comes from this question, asked by 7th Circuit Judge David Hamilton during oral argument over the same issue in a case pending in that court: “How do courts draw the line you want us to draw without sounding arbitrary and, occasionally, silly?”

Silly. 

All gay and lesbian individuals behave the same way in one key aspect — they all are sexually attracted to people of the same sex. That’s the very definition of gay. Gay men are sexually attracted to other men, and gay women to other women. And when an employer discriminates against a gay or lesbian employee, that employer is inherently discriminating based on the employee’s choice of sexual partner, which equals discrimination based on gender. To view it any other way is intellectually dishonest.

Yes, Congress could simplify this issue by passing the Employment Nondiscrimination Act, or the Supreme Court could do so by overruling Evans. Until then, however, understand that the EEOC, most courts, and many states (but not Ohio) and localities disagree with Evans. More importantly, no matter the state of the law, your business is always free to do right by all of your employees by implementing policies banning LGBT discrimination in your workplace.

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