Category: Commentary & Opinion

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Defining Trump: ‘Stop it’ and ‘You’re Fired’

I once had two employees whose working relationship blossomed into a workplace romance.

WF_WebSite_BlogHeaders-10At first it was an all-out lovefest; footsies under the table during staff meetings, goo-goo eyes at each other at lunch … ain’t love grand? It sure was; until it wasn’t.

Their chocolate kisses turned sour. Tart words and icy glares soon took a toll on the staff, who soon asked if I would help end the hostilities. I did; and it didn’t go particularly well.

It was clear that there was no mediating this one. Back and forth they went with terse accusations. Exasperated, I finally blurted: “Stop it; just, stop it.”

I was reminded of this nasty affair when late last year newly elected President Donald Trump was confronted by “60 Minutes” reporter Lesley Stahl’s question regarding his supporters’ harassment of Latinos and Muslims. Trump’s response: “And I say, ‘Stop it.’ If it — if it helps, I will say this, and I will say right to the cameras: ‘Stop it.’ ”

I’ll admit, Trump’s statement had conviction — arguably more than mine did. While his “stop it” may temporarily soothe an edgy nation and workplaces teeming with potential to boil over in bias, there’s another two-word phrase Trump is known for that strikes fear into every worker’s heart. “You’re fired” of course is the catchphrase from his reality TV show, “The Apprentice.” But which two-word phrase — a more reassuring “stop it” or brusque “you’re fired” — will define the man running our country for the next four years?

Like Trump, as workplace leaders we must toggle from “stop it” to “you’re fired.” It’s also on us to deliver the workplace tone for clarity, set an example of fairness and honesty. Our new president gets no pass on this, either. The initial days and weeks of Trump’s tenure will provide that roadmap for our nation’s workplaces.

That there’s a massive shift ahead for our political landscape under Trump is without question. His impact on the workplace however, is less apparent.

Let’s define what we know: The courts and their interpretations of employment law will undergo a massive philosophical shift.

Laws and regulations affecting our lives and jobs, from the Affordable Care Act to H-1B immigration policies to minimum wage laws, parental leave issues and especially organized labor, will come under intense scrutiny. The Family and Medical Leave Act and Fair Labor Standards Act will be under the microscope. Boards and agencies including the NLRB, OSHA, the EEOC and the Department of Labor face substantial overhauls.

That much is clear. What remains hazy is how our CEO-president’s provocateur-business leader-outsider persona will influence behavior in workplace corridors and on job sites across America.

When an unknown boss is tapped to lead an organization we check their LinkedIn profile; search for images and background; glean Glassdoor; perhaps even email a friend of a friend who may have a shred of insider knowledge.

There’s no need to play cyber-Sherlock Holmes with Trump. If we were in the dark about his leadership skills, abilities and attitudes, two years of campaigning and his time as president-elect are clarifying his management style.

Building a multibillion-dollar real estate empire is impressive. Beyond that remarkable bottom line, what does a peek into his supervisory toolbox reveal? Under organizational skills: withholding subcontractors’ pay and years of skirting tax laws. Checking the leadership box — a dizzying example of bullying, intimidation and name calling on social media. As a manager … ogling and belittling his beauty pageant contestants and taking “locker room banter” to near-obscene levels.

Maybe you’re all about results and the soft stuff doesn’t matter. Go ahead and look the other way. But with those qualities, Trump as a CEO looks like a lawsuit and extremely pricey settlement waiting to happen. It’s also behavior that I find unfit for any leader, let alone the president.

It would be a shame if HR has to play hall monitor rather than work as a strategic business partner during a Trump presidency. Policies will change; managers have learned to handle that. It’s the toxic attitudes and mounting disrespect for people that present such an ominous challenge during the next four years.

Fortunately, a handful of CEOs and leading employers have already publicly committed to policing their workplaces. President Trump could aid these leaders’ efforts and help curb growing workplace bias by turning his provocative rhetoric into more meaningful dialog with a few more emphatic, heartfelt “stop it” moments.

In your workplace it may take a “stop it” to promote cohesion. A “you’re fired” could even ease fear and distrust. How that message is conveyed will speak volumes about your leadership skills and the quality of your workplace. In this new era, how you say it is just as important as the message you deliver.

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

 

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From the Archives: Santa’s Employee Handbook

Jon Hyman The Practical Employer

While I’d like to believe that every post I’ve ever written is indelibly embossed on the brain of every person that’s ever read my blog, I understand that readers come and go, and not everyone reads or recalls every post. As a result, sometimes it makes sense to dive into the archives to revisit a timely (and timeless) post of yesteryear.

So today I bring you, all the way from Dec. 11, 2014, Even Santa needs an employee handbook.

The Christmas season is upon us, which means that the elves are hard at work deep inside the confines of the North Pole’s factories preparing gifts to load onto Santa’s sleight for his Yuletide trip around the globe. Pop culture—such as “Rudolph the Red-Nosed Reindeer” and “Elf”—portrays Santa’s workshop as a happy, jolly place, where the elves gleefully craft toys all hours of the day and night, without even a whisper of discontent.

Someone (or, more accurately, some elf), has squealed.

“The North Pole Employee Handbook: A Guide to Policies, Rules, Regulations and Daily Operations for the Worker at North Pole Industries” was allegedly found in “the vast confines of a Newark warehouse used to store elf clothing for Christmas displays.” It appears that all is not candy and carols at the North Pole.

For example:

  • Employees are called “cogs.”
  • Humans are not discriminated against in employment, as long as they are nimble, quick, and speak in high-pitched voices.
  • Cogs receive unpaid holidays for most of January, all of February – September, and half of October. With no other industry to speak of in the North Pole, however, other income-earning opportunities must be scarce.
  • Human employees must wear fake elf ears “as a gesture of solidarity with” their “fellow employees.”
  • Cogs must sign a non-competition agreement as a condition of employment. (I guess that job at Mattel is going to have to wait.)
  • Discipline can include weeks of work without pay.
  • Cogs receive the generous allotment of one five minute break and one 11½ minute lunch break for every 11 hours worked.
Other topics covered include the dental plan (administered by Hermey), how to participate in reindeer games, and what the 12 days of Christmas mean to you.
Needless to say, Santa does not appear to be one to be trifled with. Then again, if he knows when all of the world’s kids have been naughty or nice, it stands to reason that he keeps a pretty tight grip on his employees. And, if you think Santa is a pain, the handbook makes it clear that the HR Director, Mrs. Claus, goes without physical attention from Santa during peak production times and can get a tad prickly as a result.
If you’re looking for a good holiday gift for that special HR person in your life, I strongly recommend “The North Pole Employee Handbook.“
Also, don’t forget after Jan. 1 to take a look at your own employee handbook, to determine if any policies need to be updated or added.
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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Dropbox Learns — Painfully — One Twitter Snafu and You Are Toast

Media can be tricky. Especially social media. One poorly written sentence, ill-timed tweet or poor photo choice, and you’ll end up with your corporate image in a sling.

Ask cloud storage company Dropbox. They know.

Poor Dropbox. When they released their diversity numbers earlier this week, they meant well, really they did. If only the trolls would stop trolling, and the eyes would stop rolling long enough to realize, the picture in their unfortunate Dec. 14th tweet was not connected — in a perfectly straight line — to the associated content’s message.

I get it. Tweet, “Diversity at Dropbox: http://bit.ly/2hFEqlS” and then show a picture of five white people and an Asian woman — who you might confuse for a sixth white person if you’re not looking closely — and it’s bound to cause a bit of confusion. But I sincerely believe the company and the unfortunate media/marketing person who created the tweet and is now locked in a dark room with an ice pack over his/her eyes was referring to the information, not the picture. It was just poorly done; a mistake.

According to an Inc. article: “About five hours after Dropbox sent out its report, the company clarified that the picture includes Dropbox co-founder Arash Ferdowsi who is Iranian, Head of People Arden Hoffman who is lesbian and Lin-Hua Wu, a vice president of communications, who is Asian.

“This photo was meant to highlight the increase of women in senior leadership roles,” the company said in a statement. “We realize it doesn’t fully represent the diverse workforce we strive for at Dropbox. Improving our diversity continues to be one of our top priorities in 2017 and beyond.”

OK, Dropbox. We’re here for that. We know perfection does not exist. People make mistakes. Companies do too. The thing is, it’s absolutely terrible to make them on social media. Really. It’s terrible.

For instance, I’m starting a YouTube channel — no, there will be no makeup tutorials; I’m not that skilled — and my sister, trying to help me get the 100 subscribers I need to get a custom URL and not the hodgepodge of numbers and letters that currently represent me, posted a notice on Facebook. But she spelled my name wrong, and she didn’t have a call to action: Please click here to subscribe to Kellye’s channel. So, essentially, she was misrepresenting me, and there is no point to it. I was not pleased.

You know me. You do not see my work full of errors. My picture choices may not always be fabulous, and they may occasionally veer over the controversial line, but they’re usually appropriate, my links work, and the basics are there. You get the message whether you agree with it or not.

But when I tried to correct her, she acted like I’d just kicked her brand new, shiny black fur, gold-eyed puppy across a field. Image is important! Especially when you’re trying to get a new project off the ground in a visual platform — or in Dropbox’s case, when a company is trying to convey valuable information, set a tone and position its brand a certain way.

The venom that followed Dropbox’s mistake — the tweeted photo of a row of different mayonnaise jars seemed especially painful — the heat? It was telling. It was also excessive and unnecessary, but people are tired of companies soft soaping them when it comes to diversity and inclusion.

Potential customers, clients and employees want vendors/employers to do better. In, many cases, they demand it. Just last week I blogged that organizational diversity is a key motivator for Millennial job seekers. Image is everything.

“It’s important that marketing material make people feel welcome,” said Deldelp Medina, director of the residency program at nonprofit organization Code2040, in the aforementioned Inc. article.

Diversity and inclusion in the workplace is not something one can be careless about. Not today. Not with what’s going on in the world. And certainly not with the shortages of skilled talent that so many industries — like tech — are currently suffering from. Companies cannot afford to needlessly alienate anyone.

The sad part is Dropbox’s new diversity report actually had promising data to share: It’s representation of women in leadership increased 6 percentage points, and its number of black employees rose from 2 to 3 percent in 2016. The number of Hispanics also increased from 5 to 6 percent.

“We’ve made modest strides,” Dropbox said in its report, “but we still have work to do.” The company called them modest strides. I’d probably say baby steps, but I’ve been known to quibble over word choice. Whatever progress they’ve made, now no one cares. All because of one photo.

Sure, it would have been kinder to say: “Um, guys? You might wanna send another tweet clarifying that you were actually announcing your diversity numbers. Also, a new photo would be great, as diversity amidst white-ish people — and one Asian — isn’t as visually compelling as a more colorful array of employees.”

But kind has no place on the internet. This is the era of Glassdoor and keyboard courage. Pick the wrong pic, and you should expect headlines like this: “Dropbox Roasted for ‘Diversity’ Tweet Featuring Too Many White People” and “Dropbox Photo Fail Shows How Not to Celebrate Diversity.”

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

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Common Sense (Sort of) Prevails in Ohio Over Gun-Owner Discrimination Law

Jon Hyman The Practical Employer
Last week,
My Twitter feed absolutely exploded with confusion and outrage.
I am happy to report that the Ohio Senate relented to common sense, and amended the bill to remove any reference to Ohio’s employment discrimination law and any inclusion of gun ownership as a protected class. What remains in Sub. S.B. 199 [pdf], however, is the unabridged right of concealed handgun license holders to store their firearms in their vehicles parked on the property of their employers.

2923.1210. (A) A business entity, property owner, or public or private employer may not establish, maintain, or enforce a policy or rule that prohibits or has the effect of prohibiting a person who has been issued a valid concealed handgun license from transporting or storing a firearm or ammunition when both of the following conditions are met:
(1) Each firearm and all of the ammunition remains inside the person’s privately owned motor vehicle while the person is physically present inside the motor vehicle, or each firearm and all of the ammunition is locked within the trunk, glove box, or other enclosed compartment or container within or on the person’s privately owned motor vehicle;

(2) The vehicle is in a location where it is otherwise permitted to be.

All signals point the House and Senate passing this amended bill, and Gov. John Kasich signing it into law before year’s end.

So, if Ohio law is going to permit your employees to store handguns in their cars on your property, what are you, as a business, to do to protect your business, its employees, customers, vendors and others? One option is to engage in pre-work security screenings, including posting guards, installing metal detectors, and engaging in pat-down searches. The expense, however, is cost-prohibitive for most businesses, and nevertheless it is the epitome of overkill.

A logical and more cost-effective starting point for most businesses is with an Active Shooter / Emergency Action Plan, so that your business knows how to respond in the event this evil enters your workplace.

The Department of Homeland Security published a guide [pdf] on how to respond to an active shooter. The guide instructs:

  • How to respond if an active shooter is in your vicinity (evacuate, hide, or, as a last resort, take action).
  • How to respond when law enforcement arrives.
  • How to train your staff (including implementing an Emergency Action Plan and running training exercises).
  • How HR and management should prepare for, and respond during, an active shooter event.

DHS also suggests that an effective Emergency Action Plan contains each of the following:

  • A preferred method for reporting fires and other emergencies.
  • An evacuation policy and procedure.
  • Emergency escape procedures and route assignments (i.e., floor plans, safe areas).
  • Contact information for, and responsibilities of individuals to be contacted under the EAP.
  • Information concerning local area hospitals (i.e., name, telephone number, and distance from your location).
  • An emergency notification system.

I hope this is an issue your never business never has to confront. If you must, however, never has the proverb “an ounce of prevention is worth a pound of cure” been more apt.

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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Millennials Dig Diversity

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A new survey questions many of the stereotypes attached to millennial workers.

I do not like stereotypes.

They’re simplistic and occasionally – maybe more than occasionally – stupid. And while there is some truth to them in the same way people who share an astrological sign also share some personality traits, large group assumptions are so easy to disprove it’s ridiculous. There’s always one or two standouts in the group who are so fabulous. Then, if you’re reasonable, you have to question everything.

For instance, popular generational comparisons posit that most millennials are entitled and lazy. It’s just not true. You know why the older generations are so quick to pooh-pooh millennial ideas and work habits? Fear. Fear and faulty memories.

Gen X or boomer leaders see all of that energy, that certainty not yet terribly shaken by life’s turbulence, and they forget that they were once like that. We forget that we too wanted information and opportunity sooner rather than later, and that we didn’t – we don’t – necessarily want to wait until someone else is ready to give it to us.

Take my former direct report Kate, for instance. Tall, white, perennially cute with short, spiky brown hair and an excellent earring aesthetic, she’s upper middle class, funny, smart and one of the hardest workers I’ve met of any age. The girl is a rock star, and I miss her every day. She asked questions, yes, lots of them; but she was respectful, she always took the initiative, pitched in when our backs were to the deadline wall, never shirked a task – no matter how small – and she listened, very well.

She saw the value in my old lady wisdom – my words, not hers – and she soaked it up like a sponge. She also skipped off to a better job after less than two years, and I wasn’t mad at her. It was an opportunity, and one should never turn one’s nose up at a great opportunity.

You know what else? Millennials have much better attitudes about diversity and inclusion than other generations. This is my personal observation as well as the dominant message from some new research I was briefed on this week.

The Institute for Public Relations partnered with Weber Shandwick to survey more than 1,000 U.S. adults this past August, then they analyzed the data to determine various perceptions about diversity and inclusion by generation. The result was Millennials@Work: Perspectives on Diversity & Inclusion, and one of the standout findings was that 47 percent of the millennials surveyed believe that diversity and inclusion is important criteria they actively look for in potential employers.

Sarab Kochhar, director of research for the Institute for Public Relations, told me the idea that millennials are the least engaged of other generations, that they’re primarily seen as job hoppers, is faulty. Then she reiterated that D&I is an important factor in millennials’ job search. She didn’t say it explicitly, but I’m comfortable making a connection between those two pieces of information: Diversity and inclusion is important for working millennials. Maybe it’s so important, when they don’t get it on a job, they bounce.

The survey data also showed only 44 percent of millennials agree that their employers do a good job communicating their diversity and inclusion goals. That’s not good. Leslie Gaines-Ross, chief reputation strategist for Weber Shandwick, said diversity and inclusion has to be mandated and discussed at the top to cascade throughout an organization. If it isn’t, and it’s important to you as an employee, that lack is a pretty good reason to leave a gig, no?

The survey also asked respondents to what extent do they hear or see any form of discrimination at work. Gaines-Ross said across the board the numbers were pretty high, but some 69 percent of employed millennials have seen or heard something related to discrimination at work; racial discrimination is a leading topic among millennials and Gen Xers. For boomers it’s age discrimination.

Not only are they good at spotting it, according to the data, millennials are also more comfortable talking about workplace diversity and inclusion than other generations. I’ve seen that at play many times. Older adults are more likely to change the subject when D&I topics come up. They’re eager to defend themselves and are far more interested in reducing any semblance of taint than they are in listening.

Kate, for instance, is great at listening with the purpose of understanding, not waiting for her turn to talk. Even when I can see that what I’m saying is making her uncomfortable or confusing her, she doesn’t shy away from the discussion. She just listens and asks questions. That’s what we should all do when it comes to diversity and inclusion. There’s no shame in not knowing, only in refusing to learn.

I’m not saying my former direct report is the poster child for millennials. Kate’s a special person, period. But she proves my point neatly: when it comes to generational stereotypes – any stereotypes – there’s an exception to every rule.

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

 

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7 Tips to Avoid the Holiday Party Nightmare

Jon Hyman The Practical Employer

’Tis the season for workplace holiday parties. It a time to reflect on the past year and celebrate all your organization has accomplished. It is also a time to avoid liability, hopefully. A lot can go wrong at a holiday party.

For example, consider Shiner v. State Univ. of N.Y. (W.D.N.Y. 11/2/12).

Lesley Shiner worked as a clerk at the University at Buffalo Dental School. Dr. Jude Fabiano was the school’s associate dean and Steve Colombo its director of clinical operations. Each year the school holds an annual Christmas party. Shiner attended the 2010 party despite her reservations about sexually inappropriate conduct and sexually explicit comments made by Colombo and Fabiano during the 2008 and 2009 parties.

Shiner should have listened to her inner voice and stayed home. In her lawsuit, she alleged that during the party Fabiano:

  • Fondled her breasts.
  • Inserted his tongue in her ear.
  • Chased her around a table.
  • Grabbed her by her neck and bent her over a table.
  • Pushed her face together with that of another female employee and told them to kiss, stated that he wanted some “girl on girl” action, and asked for the three of them to be together sexually.
  • Pulled her on his lap and asked her to meet him somewhere after the party.
  • Pinched and squeezed her ribs when she resisted his advances.
She also alleged that Colombo encouraged and cheered Fabiano’s behavior, and also grabbed her hand and pulled her onto his lap, stating to Fabiano “you might be the boss, but I have her now.”
All you need to know about Shiner case is that, unsurprisingly, the court denied the school’s motion to dismiss.
How do you avoid your workplace turning into Shiner? Consider the following seven tips:
  1. Normal work rules and standards apply to holiday parties. As a subtle reminder, consider holding an anti-harassment refresher in anticipation of the party.
  2. Review your insurance policies for alcohol-related exclusions.
  3. When scheduling your party, consider that employees are less likely to indulge on a work night than a Friday or Saturday.
  4. Remind employees to drink responsibly and plan ahead for safe transportation. Help employees by limiting consumption via drink tickets, offering plenty of non-alcoholic options, and providing designated drivers, cab vouchers, or hotel rooms for those unfit to drive home.
  5. Have trained and experienced bartenders, and emphasize that they should not over-pour drinks, or serve guests who appear intoxicated or underage.
  6. Designate one or more managers or supervisors to refrain from drinking and monitor the party for over-consumption.
  7. Close the bar an hour or more before the party ends.

At the end of the day, it all comes down to culture. If your company has a culture of condoning Shiner’s misbehavior, no policy or training will render your holiday parties (or any workday, for that matter) safe.

You need to decide what kind of company you want to be, and set the tone year-round. Then, when it comes time for the annual holiday party, you will not have to worry about an employee being bent over a table or asked for a threesome. And, if it happens, your employees will have confidence that your company will address the offending behavior quickly and severely.

Cheers, be safe, and enjoy your holiday celebrations.

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Diversity Training in the Era of Trump

A few people have emailed me since the election wanting me to write something scathing and heated about the outcome, but I didn’t for two reasons. One, the less I talk about that situation the better I feel. I have to live it, as do many Americans, and that’s more than enough. Two, politics has its connections, but not necessarily a place in this workplace diversity-themed blog.

That changed when I ran across an NPR article detailing the drama diversity trainers are facing post-election. The piece, from writer Kat Chow, described it as a heightened sense of us vs. them, and spoke from multiple diversity consultants’ perspectives.

For instance, consider Dorcas Lind. As the election results rolled in and it became clear that Donald Trump would be the next president, Lind, founder and president of Diversity Health Communications, wondered if she should think about another career.

Lind was shocked when she saw how many people supported Trump — “the stretch of red in her district, a New Jersey suburb, which she said had once been celebrated for its diversity.” She experienced feelings of hopelessness and futility as she contemplated the amount of work that needed to be done and her marked lack of interest in doing it.

Like many, Lind associated a vote for Trump with a vote for intolerance, the antithesis of strategic diversity and inclusion practice. But Chow wrote that many consultants are expecting an increase — however slight — in calls for business in the near future. Why? “The corporate world is a microcosm of the larger world. People who voted for Trump work at the same companies as those who voted for Hillary Clinton or other candidates. And with a contentious post-election environment, employees will inevitably clash over matters of race.”

Basically, HR and business leaders will be super busy, and many have little to no experience dealing with the kind of problems that will crop up thanks to the political polarization in the country right now. Lind said leaders will need to create an entirely new language to deal with the election aftermath. It sounds exhausting.

Chow also interviewed Luby Ismail, head of Connecting Cultures, a diversity consulting business in the Washington, D.C., area. Ismail, an Egyptian-American Muslim, helps companies like Sodexo, Nike and Walt Disney Co. better understand American Muslims and Arab-Americans. She said the quandary in the workplace — should we talk about politics and religion or not — is tricky because right now, since people actually need to talk about these things. They’re actively processing what’s happened and what are the potential implications for them and for their families.

wf_1216_atwhitsend_usthem760There is no if. That us vs. them feeling, Trump vs. Clinton, or whatever camp you may fall into, will filter into the workplace. To ignore it, feeling that avoidance of this particular issue is possible because professional courtesy will mitigate or suppress issues, simply won’t work. To coin the popular vernacular, people are feeling some type of way about the current state of political affairs. And that’s putting it mildly.

Now more than ever diversity executives have to ensure that everyone’s concerns are addressed — including white men, said Doug Harris, head of the Kaleidoscope Group, a Chicago-based diversity company. “I think right now there’s a temperament within society of exclusion on both sides of the table,” Harris said. “And those who may have been seen to have been historically included are feeling just as excluded as everyone else.”

On the one hand, that shared sentiment might be used as a connector, common ground — however wretched and ill conceived — but it doesn’t make things any easier for diversity trainers and consultants who have to deal with this angst on top of historically rooted bias, ignorance, racism and all the other dimensions of diversity that we shake our heads over.

Lind said one can’t think of all challenges as equal because the rhetoric at play is, “One side has lost, one side has won, and everybody needs to get together and move forward for all Americans in the country.” Diversity executives and consultants are left to walk a very narrow and rocky line to keep everyone engaged in productive dialogue and to promote positive action and behavioral change.

Even using the word diversity before the word consultant is a problem for some. Leah P. Hollis, president of Patricia Berkly LLC in Philadelphia, specializes in workplace bullying. She said as soon as she uses the word diversity “she loses the room.”

It’s tough. Rather, it was tough before, and it’s even tougher now. Diversity executives have to not only pursue their individual missions to advance equality and tolerance and strategic diversity management for their respective workforces and businesses, they have to navigate a sticky layer of political sensitivity as well. I don’t envy them the task.

It reminds me of an old Guns N’ Roses tune, “Welcome to the Jungle.”

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

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Parental Leave Predictions Under the Trump Administration

spiggle_300The United States is the only developed country not to offer paid leave to mothers and fathers of newborn children.

During the 2016 presidential campaign, the issue of paid leave was very prominent in Hillary Clinton’s platform, and President-elect Donald Trump eventually proposed a paid-leave plan as well. Based on his rhetoric on the topic, his paid leave plan originally included six weeks of leave, offered to married women giving birth. This eventually was expanded to single women giving birth as well after criticism but still excludes parties like fathers, adoptive parents, and certain same-sex couples.

Based on the limited information we have now, I spoke with Tom Spiggle, an employment attorney and founder of the Spiggle Law Firm, who made some predictions on the way in which the paid-leave landscape could shift in upcoming years. What could shape it, and what questions should we consider?

[Related content: Why the DOL’s Paid Sick Leave Rules Matter for All Employers]

First, the Family and Medical Leave Act is the one federal program we have now, and it’s unpaid. “One possibility is it [the future paid leave rule] would be administered through or somehow joined with the FMLA,” said Spiggle, whose specialty is workplace discrimination and wrongful termination due to pregnancy or other family care issues. Once that box is open, could Congress tinker with the FMLA in a way that is less leave-friendly? It’s worth noting that no one has indicated wanting to weaken the FMLA.

Second, what happens if the paid leave law is violated? The worker’s right to go to court could be mitigated in favor of something like a slap on the wrist to the employer or an administrative fine, Spiggle speculated.

Finally, no matter what happens on a federal level, on a state level changes will probably continue to happen. New York and Washington state begin offering paid medical and family leave Jan. 1, 2018, joining the states already doing so — California, New Jersey and Rhode Island. Washington D.C.’s proposed paid leave law, which is very progressive, is up for a vote in December.

Spiggle mentioned a couple other considerations. “Trump’s policy is different from the Republican orthodoxy on the subject, which is not to have a government mandate or any kind of paid leave,” he said. Given, the Republican majority in the House and Senate, what kind of “horse-trading” could this spur?

Trump brought paid leave into his campaign, but is it high priority? He has a lot on his plate, such as sticky international situations and other employment law issues, said Spiggle. “We might not know until well into the administration what a proposal would look like,” he said.

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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‘Perceived’ National Origin Discrimination May not be Illegal, but …

Jon Hyman The Practical Employer

Lost in the maelstrom of the

The guidance, which replaces the EEOC’s older 2002 guidance and covers topic such as citizenship, language issues and English-only policies, and harassment, is recommended reading for all employers, as are the EEOC’s companion Q&A and small business fact sheet.

Let me point out, however, one area of contention—the issue of “perceived” national origin discrimination.

According to the EEOC, “National origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group,” and “Title VII prohibits employer actions that have the purpose or effect of discriminating against persons because of their real or perceived national origin.”

The federal courts, however, have a different view.

Consider, for example, Longoria v. Autoneum N. Am. (N.D. Ohio 9/13/16), which concerned whether one of American dissent could pursue a Title VII national origin discrimination claim based on his employer’s perception that he was Mexican. The court said no:

Longoria cites no Ohio case law that has validated, or even discussed, this theory of liability. Because Ohio courts generally took to Title VII cases when applying O.R.C. § 4112.02, I conclude that the Ohio courts would not recognize a perceived-national-origin discrimination claim, given its widespread failure in the federal district courts.

Also consider Burrage v. FedEx Freight, Inc. (N.D. Ohio 3/29/12) (about which I’ve previously blogged), which makes it clear that Title VII does not protect one from discrimination based on perceived characteristics, only actual characteristics.

Thus, if an employee sues you based on claim of perceived national origin discrimination, it is highly likely that I will be able to win that case (EEOC guidance notwithstanding).

Legal or illegal, however, the issue of perceived inclusion in a protected class raises a deeper issue. What kind of employer do you want to be? Do you really want to be the employer who condones calling a Mexican employee a wetback, yet wins in court because she’s really American? Or, the employer who win the lawsuit brought by your Indian-American employee who was repeatedly called “ISIS”?

Racism and xenophobia are still racism and xenophobia, and legal technicalities do not justify them having place in your workplace, period.

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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It’s Cyber Monday; Your Employees Are Shopping From Work

Jon Hyman The Practical Employer

Today is Cyber Monday, the biggest online shopping day of the holiday season. In fact, it is estimated that today will be the biggest online shopping day ever, with 

And guess what? Given that most of those doing the shopping will be spending the majority of their prime shopping hours at work, from where do you think they will be making most of their Cyber Monday purchases.

Consider these statistics, pulled from CareerBuilder’s 2016 Cyber Monday Survey:

  • 53% of employees use time at work to shop online.
  • 49% use their personal smart phones or tablets to shop at work.
  • Yet, only 11% of employers have fired someone for holiday shopping on the internet.

In other words, more and more companies are allowing employees to shop online from work.

Yet, just because companies allow a practice to occur does not mean it makes good business sense. Should you turn a blind eye towards you employees’ online shopping habits, not just today, but across the board? Or, should you permit more open access?

I am big believer in open internet access (within reason). I advocate for fewer restrictions for personal internet use at work (including Cyber Monday shopping) for two reasons: it provides a nice benefit to employees, whom we ask to sacrifice more and more personal time; and it’s almost impossible to police anyway.
We no longer live in a 40-hour a week, 9-to-5 world. Employees sacrifice more and more of their personal time for the sake of their employers. Thus, why not offer some internet flexibility both to recognize this sacrifice and to engage employees as a retention tool?
Moreover, it is becoming increasingly difficult for employers to control what their employees are doing online during the work day. Even if an employer monitors or blocks internet traffic on its network, all an employee has to do to circumnavigate these controls is take out his or her smartphone (which the CareerBuilder survey shows more employees are doing anyway). By trying to control employees’ internet habits, employers are fighting a battle they cannot win. The smartphone has irreparably tilted the field in favor of employees. It not worth the time or effort to fight a battle you cannot win.
Instead of fighting a losing battle by policing restrictive policies, I suggest that employers treat this issue not as a technology problem to control, but a performance problem to correct. If an employees is otherwise performing at an acceptable level, there is no harm is letting him or her shop online from work, on Cyber Monday or on regular Wednesday. But, if an employee is not performing, and you can trace that lack of performance to internet distractions or overuse, then treat the performance problem with counseling, discipline, and, as a last resort, termination. Just like you wouldn’t bring a knife to a gun fight, don’t bring a technology solution to a performance problem.
As for me, I did most of my online shopping over the weekend. So, it’s back to work for me.
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.