Category: Commentary & Opinion

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Business Case for Diversity, My Foot

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I’m feeling a little mean today. I’m facing some sweeping tech system changes at work, which always puts me in a bad mood. So I thought I’d take this time to kvetch about something that just gets on my nerves. I’m talking eye rolling, lip smacking, facial expressions — the works.

What is it that creates such a strong, negative reaction you ask? It’s when someone asks for the business case for diversity.

I usually think, really? Then I think, are you kidding? Would you like to clarify that question, maybe be more specific if you need hard data with which to persuade the budget keepers to fund a new program or initiative? That I get. But if someone asks that question expecting someone else to explain to them why an organization or a leader should care about diversity, I say, poo.

Let me repeat that — poo.

If you’re a business professional — especially at a more senior level — working in almost any capacity in the global or even local marketplace, diversity is all around you, and it should be apparent why it’s important. That is essentially what people are saying when they ask, “What is the business case for diversity?” They’re asking, why is this important? Why does this deserve my time and attention? Why should I care to take action?

These are valid questions — if it was 1960 or even 1970 or 1980. But today? When changes in global demographics are obvious in the workplace and everywhere, when trends in buying power and discretionary spending center firmly on minority groups, when the most promising talent pools to combat skills and other shortages are also targeting minorities, those questions aren’t valid; they’re long overdue.

If a senior leader asks their chief diversity officer for the business case for diversity, I would heartily encourage that CDO to look for a new gig. I’m sorry. But any business leader worth their salt should know almost instinctively why diversity is important — if they have both eyes open, are willing to embrace change and to do what is necessary to build a culture that encourages innovation and growth, and sustain a competitive advantage in the marketplace.

It’s one thing to have questions about inclusion; that’s procedural, process-oriented. It requires changes in systems and infrastructure that take time, thought and concentrated, consistent effort to build and sustain. But to question the actual value of diversity — which is what the business case is — that’s unacceptable.

To make such a query smacks of heads in the sand, and a willful, almost criminal dismissal or ignorance of changing realities in the marketplace. That question should be a historical footnote at this point in the game. It should be a part of the foundation you started building some time ago. We should all be figuring out the nitty gritty behind strategic diversity and inclusion management in recruiting, retention, development, rewards and recognition, and performance management, among other things.

I’m sorry, leaders. Unless you come from a monolithic society where everyone buying, selling and working looks exactly the same, if you’re asking your diversity executive for the business case for diversity, you’re out of order.

It would be like me asking our copy editor why do we have to deal with changes in AP Style? Language, like the marketplace, like the workforce, evolves. You either move along with the changes happening around you, or they move along without you. Diversity and inclusion is such a change. At this point, you can’t get on board. The train left the station awhile ago. Just be ready and willing to jump on the next one.

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

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Beware Eldercare Discrimination Claims

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One of the very first posts I ever wrote on this blog, almost nine years ago to the day, discussed the EEOC’s then-new Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. One of the key issues noted by the EEOC in that document, and three years later in its follow-up document, Employer Best Practices for Workers with Caregiving Responsibilities, was eldercare discrimination:

Of course, workers’ caregiving responsibilities are not limited to child care, and include many other forms of caregiving. An increasing proportion of caregiving goes to the elderly, and this trend will likely continue as the Baby Boomer population ages. As with child care, women are primarily responsible for caring for society’s elderly, including care of parents, in-laws, and spouses. Unlike child care, however, eldercare responsibilities generally increase over time as the person cared for ages, and eldercare can be much less predictable than childcare because of health crises that typically arise. As eldercare becomes more common, workers in the “sandwich generation,” those between the ages of 30 and 60, are more likely to face work responsibilities alongside both childcare and eldercare responsibilities.

Nine years hence, it appears that employers haven’t gotten the message. Fortune recently reported that more employees are suing over family care—and winning:

Between 1998 and 2012, federal employment discrimination cases declined overall. But not employee lawsuits over family-leave discrimination: They shot up 590 percent. In the past 10 years … the fastest-growing type — up 650 percent — was brought by employees who were taking care of elderly relatives. Nor is this a “women’s issue.” Well over a third (39 percent) of those eldercare actions were brought by men, who also filed 336 percent more paternity-leave lawsuits than in the decade before.

For employers, this gets expensive. Plaintiffs have been winning cases about 70 percent of the time, the study says, or more than twice as often as they prevail in other kinds of employment suits. Altogether, litigation over what the study calls “FRD,” for family responsibilities discrimination, has cost employers almost half a billion dollars ($477,009,417) between 2006 and 2015, more than double what it cost in the previous decade. And that’s a conservative estimate, because it doesn’t include the cost of confidential out-of-court settlements.

This issue hits workers my age particularly hard, as we are bookended by caregiving responsibilities. We not only have our children to which to attend, but also our parents. Employers that mis-perceive employees’ dedication to their families as a lack of dedication to their jobs are missing the bigger picture. It is not only the right thing to grant your employees the flexibility to attend to family issues when they arise, but it is also the legal thing. Because $477 million dollars suggests that employers, unfortunately, have not received this message.

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How to Behave (and not Behave) in a Deposition

I spent yesterday in a deposition. That fact is not all that unusual for a litigator. What makes yesterday’s exercise stand out is that I was the deponent, not the attorney. I spent my day under oath, answering questions.

As the mind of a blogger works, I thought to myself, “How can I turn this experience into a blog post?” And then I realized that I already had, six years ago, in a post entitled, 10 tips for preparing for your deposition. So join me on this trip back through the archives.

  1. Tell the truth. Enough said.
  2. Answer the specific question asked. Do not volunteer other information. Do not explain your thought process. You are only required to answer the question that is asked. The lawyer on the other side is being paid to ask specific questions to elicit the specific information being sought. Do not do his job for him by unnecessarily offering other information.
  3. If you do not understand a question, do not answer. Simply say that you do not understand. It is the lawyer’s job to formulate understandable questions, and not your job to guess at what is trying to be asked of you.
  4. Do not guess. If you cannot remember something, your answer should simply be: “I do not remember.” If you have a vague memory, give that vague memory with a qualification.
  5. A deposition isn’t a memory test. If you are asked for a time or date, and you cannot recall specifics, it is okay to give an approximation. Just qualify the answer by saying that it is an approximation or an estimate.
  6. Beware leading questions. An examiner is usually allowed to try to put words in your mouth with leading questions. Do not agree to inaccurate statements contained within the question. To same end, do not automatically accept the questioner’s summary of your prior testimony, unless it is 100% accurate.
  7. Give complete answers, and then stop. Always finish your answer. If you are interrupted, let the lawyer finish the next question, and then go back and finish your prior answer. If you are finished with an answer and it is complete, accurate, and truthful, stop talking and stay silent. Do not add to your answer because you feel a need to fill the silence.
  8. Documents. If you think you need a document to help you truthfully and accurately answer a question, ask for it. But, do not agree to supply any documents requested by the questioner. All such requests should go through your lawyer.
  9. Objections. Even if your lawyer objects, you usually still have to answer the question. You will only not answer if your lawyer expressly instruct you accordingly (usually because the other lawyer is asking about attorney-client communications).
  10. Humor doesn’t work. Sarcasm and humor do not translate well on the written page. Also, never express anger or argue with the questioner, or use even the mildest of off-color language. A deposition is a professional event, and you should act professionally.

Bonus tips—Don’t act like this:

Or like this:

Or like this:

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A Special Blog for Special-Needs Caregivers

One of my biggest fears as a journalist – other than not getting the facts straight – is that no one is reading what I write.

If your immediate response is, “Check the number of Facebook likes, duh,” I challenge you to remember the last article you “liked” that you actually read all the way through. I don’t want to be “liked.” I want to write articles that readers engage with, articles that make them think and at the very least leave them a little better informed.

That’s why I love it when readers write back. Good or bad, I get a great sense of satisfaction out of knowing that what I’ve written triggered enough emotion in another person that they felt compelled to let me know how they’re feeling.

This very situation happened a few months ago with a story I wrote for the January issue of Workforce titled, “Caring for the Caregiver.” It was about employees who care for their aging or ill parents in addition to holding down a full time job. It’s no small task, and 15 percent of the U.S. workforce is currently trying to do it. The intention was to shine light on an underreported issue and to give employers ideas on how to support these employees.

Based on the Facebook likes, it was well received.

But then I got a letter from Laura Francis, the director of marketing at River software. With patience and gratitude she informed me that while accurate, my story was too narrow in its scope.

“I really appreciated your article on caring for caregivers,” Francis wrote. “It’s an incredibly important topic we need to address in society. Unfortunately, I feel like you overlooked a huge piece of this caregiver puzzle: parents of children with special needs.”

Her note struck a chord with me. I hadn’t even considered parents of special-needs children. Worse, none of the experts I spoke with for the story brought it up, either. I did some research, and according to the U.S. Census Bureau Report, one in every 26 families reported having a child with a disability. That’s a huge number of working adults. And it immediately made me wonder what, if anything, employers are doing to help ease that burden.

So I gave Francis a call, and she graciously shared her story.

Francis is the mother of a 6-year-old son who has cerebral palsy, epilepsy and cortical visual impairment in addition to other special needs. He can’t sit up on his own. He can’t crawl. He can’t walk. He can’t talk. He can’t feed himself. He needs someone with him all the time. Francis is that someone.

She considers herself lucky, though. Working for a small company like River has been a blessing.

“They know my family,” Francis said. “I’m not just some faceless name on a list. I’ve been with the company for 16 years so they’ve been with me through all of this. They are so responsive and flexible and I think flexibility is the key for parents of special-needs children.”

Francis works from home so that both she and her husband can care for their son. But River’s contribution goes beyond that. Last year when the company was switching insurance providers they called Francis first and asked her to make sure all her doctors would still be in network. They didn’t want to make a move that would leave her son uncovered.

“They are very thoughtful and respectful and open hearted and kind,” Francis said.

The Affordable Care Act also has been a blessing for Francis and parents like her. Before the legislation was passed in 2010, Francis had a $1 million lifetime maximum benefit for her health insurance policy. GIven her son’s medical needs, they had almost spent more than half of that. The ACA eliminated lifetime maximumsand made it so insurance companies can no longer deny coverage based on preexisting conditions.

“WIth all of the health issues my son faces, we would surely have faced this problem had there not been a law in effect to protect us,” Francis said.

While Francis is grateful for all that River and government legislation have done for her, she understands that not all parents of special-needs children have an ideal working situation. Her advice to those parents and their employers is to encourage conversation and understanding.

“One of the most important things for me is having my co-workers understand that caring for a special-needs child takes a lot out of you,” Francis said. “It can be exhausting. If you come to work one day and you’re just not on your game they can understand why without making assumptions about your commitment to the job.”

For employers considering treating parents of special-needs children the same way they treat parents who are responsible for elderly family members, here’s Francis’ advice: Don’t.

“These situations might feel similar, but they can be quite unique,” Francis said. “A lot of that is why it’s easy for us to get overlooked in the grand scheme of things. We’re trying to do our jobs and keep the family running. There’s not a lot of energy left to advocate for ourselves. Having benefits and ways to communicate within the workplace is so helpful.”

So for all the employers out there reading this, don’t make my mistake. Create a welcoming environment for all employees so that those with challenges like Francis feel comfortable coming to you knowing adjustments can be made so they can take care of work and family – without compromise.

Sarah Sipek is a Workforce associate editor. Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.

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Mom Cannot Sue Employer for Discrimination Against Her Son, Court Says

Brittany Tovar claimed that her employer, Essentia Health, discriminated against her when her employer-sponsored medical insurance denied her son gender reassignment services and surgery.

In Tovar v. Essentia Health (D. Minn. 5/11/16), the court had little issue dismissing Tovar’s claims because the alleged target of the discrimination, her son, was not an employee protected by Title VII:

There are no allegations that Tovar herself is transgender or was denied health benefits…, let alone denied benefits because of her sex. Instead, she assumes the discrimination against her transgender son was also discrimination against her. This assumption confuses the true target because it was not Tovar who was discriminated against; it was her son (a non-employee and non-party) who was the sole object of the discrimination. This does not support a claim of discrimination.… 

Tovar has alleged no … discriminatory conduct or adverse action taken by Essentia against her. Instead, she argues “she is entitled to the full enjoyment of the privileges of her employment, including access to and use of her health care benefits equal to that of other employees.” Yet, there are no facts in the Complaint to support that she was ever personally denied the benefits or privileges of her employment or personally experienced anything less than full coverage of the benefits provided.

This holding is very different from Thompson v. North Am. Stainless, in which the Supreme Court recognized a claim for “associational retaliation.” In that case, both the complaining employee and the terminated employee were both employees, and the alleged discriminatory action was against an employee. In Tovar, the alleged victim of the discrimination was not an employee.

So, what does this case mean? Title VII protects employees, not non-employees, even if the non-employee is closely related to an employee. Title VII prohibits adverse employment actions, not adverse actions against those related to employees.

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I Scream, You Scream, We All Scream … for the FLSA’s New Salary Test

Vice President Joe Biden, Sen. Sherrod Brown and Secretary of Labor Tom Perez will appear at Jeni’s Ice Cream in Columbus, Ohio, May 18 to announce the Department of Labor’s new overtime rule.

The rule, as expected, increases the salary level at which one qualifies as an exempt white-collar employee ($913 per week; $47,476 annually), while leaving alone (for now) the duties one also must meet to qualify. It is expected that 4.2 million white-collar workers will now qualify for overtime.

The effective date of the final rule is Dec. 1, giving employers more than six months to digest the new rules, reclassify workers and comply with the new salary test.

In advance of today’s announcement, late yesterday the DOL published the Final Rule, along with some guidance for employers. It also published this handy chart, comparing the current regulations, last year’s proposed regulations, and the final regulations.

 
 
 
What does the DOL want you to know about the new rule? It …

  1. Only applies to the administrative, executive, and professional exemptions.
  2. Sets the salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South ($913 per week; $47,476 annually).
  3. Sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally ($134,004).
  4. Establishes a mechanism for automatically updating the salary and compensation levels every three years.
  5. Permits employers to use non-discretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level (this is new to the FLSA, and a pleasant surprise for employers).
I will say, while a 50 percent increase in the salary test is significant, the Final Rule is not nearly as bad for employers as it could have been or was feared.

  • The salary test is based on the lowest-wage Census area (the South);
  • It will update every three years (not every year, as feared);
  • It left the duties test alone (for now);
  • It providers a much longer than feared six months until effective; and
  • It introduced the inclusions of bonuses and commission into the salary calculation.

Perhaps what is most interesting, however, is the guidance that the DOL chose to publish along with the Final Rules. Much of the criticism lobbed at the DOL over the increased salary test related to the higher salary level’s impact on small businesses, non-profits, higher-education institutions, and governments. Not so coincidentally, take a look at the guides and fact sheets the DOL published alongside the Final Rule:

Employers, you have a little more than six months to get your wage-and-hour houses in order. You need to figure out which of your exempt employees make less than $47,476, and determine what you are going to do with them—switch them to non-exempt or gross-them up to the new salary level.
If you switch them to non-exempt, you will have to deal with the employee-relations issues that arise from tracking (or restricting) overtime and limiting flexibility. If you gross them up to keep them exempt, you will have to deal with the employee-relations issues that arise from salary contraction. Will your manager be happy that she is being paid nearly the same as her assistant manager/supervisor?
There are no easy answers, but you have until Dec. 1 to figure it out.

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EEOC’s Final Rules on Employer Wellness Programs Provides Clear Path for Employers

The EEOC published May 16 its long-awaited rules that describe how the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act apply to wellness programs offered by employers that request health information from employees and their spouses. Both rules take effect July 18, 2017.

The EEOC has made the following documents available:

What do employers need to know about these rules? The two biggest takeaways are: (1) wellness programs are voluntary (and therefore do not violate the ADA or GINA) as long as an employers’ incentives or discounts don’t exceed more than 30 percent of the cost of an employee’s individual “self-only” health coverage; (2) employers still have obligations under both laws to keep confidential employee medical and genetic information provided through a wellness program.

Given the surging cost of health insurance and the massive burden those costs place on employers and employees, it is relief that the EEOC is leaving intact these beneficial programs popularized by the Affordable Care Act. Moreover, the EEOC’s 30 percent hard cap is certainly more palatable than a fuzzy “reasonableness” standard that begs for litigation and uncertainty. While both employers and employees can quibble over whether 30 percent is too low, too high, or just right, I’d rather have this Goldilocks debate over a number we can see than a different debate over a fuzzy standard that we cannot.

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The $15 Minimum Wage is an Employee Relations Nightmare

The Cleveland City Council recently introduced legislation to raise the city’s minimum wage to $15. Mayor Frank Jackson has come out against the bill, stating that he opposes the legislation because it puts the city at a competitive business disadvantage against other cities.

“I continue to support a minimum wage increase if mandated by the state or federal government and not just for the city of Cleveland. For the full economic impact this has to be a united effort throughout Ohio and the United States.”

There is much debate over the positive or negative impact of a $15 minimum wage. Where you fall on the debate depends on whether you are pro-employee or pro-business, and, if you look, you can find empirical evidence to support either argument.

Here’s one argument, however, that I have not come across. If the minimum wage rises to $15 an hour, what happens to all of those employees already earning $15 an hour? What happens to the employee, hired 10 years ago at $7 an hour, who worked his butt off for the past decade, and, through a series of promotion and raises, earned his way up to $15 an hour? Those employees will not receive a proportional raise to keep pace. The $15 minimum wage will convert these millions of workers into minimum-wage employees. And, for better or worse, there is a certain stigma with being classified as minimum wage — especially if you’ve worked hard for years not to be minimum wage.

There is no easy answer or quick solution to providing people with a livable wage. There is lots to discuss before we make the reflexive decision to cure the wage gap in this country by increasing the minimum wage. One issue that cannot be discounted is the employee-relations nightmare that we will create for those already earning this new minimum wage.

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President Signs the Defend Trade Secrets Act of 2016 — What Employers Need to Know

President Obama signed into law the Defend Trade Secrets Act of 2016 on May 11. It creates a uniform, federal standard for the protection of corporate trade secrets.

What do employers need to know about this new law?

1. It creates a uniform federal cause of action for the misappropriate of trade secrets. Thus, companies, particularly, but not limited to, those that operate in more than one state, can seek nationwide relief from the misappropriate of trade secrets, without regard to differences in state law. Also, because it creates a federal cause of action, it grants access to federal court without regard to the state of citizenship of the parties.

2. It does not circumvent state laws regarding the enforceability of non-competition agreements. Employers are still free to limit their employees’ post-employment activities, subject to applicable state laws.

3. It does not preempt state trade secrets laws, to the extent they provide greater protections.

4. It creates a mechanism for the civil seizure of stolen trade secrets. In “extraordinary circumstances” a federal court may order the civil seizure of property “necessary to prevent the propagation or dissemination of the trade secret that is the subject of the action.” Moreover, interestingly, one of the pre-conditions on this seizure is that the “applicant has not publicized the requested seizure.”

5. One who claims to have an interest in any seized material move the court “to encrypt any material seized or to be seized … that is stored on a storage medium.”

6. Aside from this newly created civil-seizure remedy, other more traditional remedies are also available—injunctions, compensatory damages, exemplary damages, and attorneys’ fees.
 
7. Injunctions, however, are not intended to serve as back-door non-competition agreements. Instead, injunctions are limited in scope to what is necessary to “prevent any actual of threatened misappropriation” of the trade secret. This is one area where state-law inevitable disclosure remedies might prove more favorable than this federal law.
 
8. Exemplary damages (limited to two times the amount of compensatory damages) and attorneys’ fees are only available upon proof that the misappropriation was “willful and malicious.” 
 
9. Attorneys’ fees are also available against a plaintiff if the defendant can show that the claim was brought in “bad faith,” or that a motion to terminate an injunction was opposed in “bad faith.”

10. Disclosure of trade secrets are protected if made in confidence to a government official, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law, or if made in a complaint or other legal document filed under seal in a lawsuit or other proceeding.

While this law may not change the legal status of trade secrets it does add another arrow to the corporate quiver of trade-secret protections, which most (honest) employers should welcome.

 
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Happy Blogiversary to Me

Nine years ago today, I launched the Ohio Employer’s Law Blog. 

During that span, millions have read 2,421 posts (OMG!). 

The ABA Journal has honored me six times with inclusion in its Blawg 100, and last year inducted me into its Blawg Hall of Fame.

I’ve established a strong relationship with Workforce magazine, the website of which cross-publishes my posts as The Practical Employer. I also pen a monthly column for the magazine, and serve on its editorial advisory board.

My thoughts have appeared in publications such as the Huffington Post and the Wall Street Journal.
I’ve criss-crossed America speaking on myriad employment-law topics, and have appeared on NPR and John Stossel’s tv show.

I’ve written a book or two.

And I’ve made lots of great friends — client, readers, and other bloggers.

All of this is prologue to a huge “thank you” to all whose paths I’ve cross since I started this little pet project nine years ago. This blog is an absolute labor of love, and if I didn’t love the creative outlet it provides, it would sit on the blogging scrapheap with myriad other legal blogs. My blog is, without a doubt, the most professionally rewarding aspect of my career, period. So, again, thank you to everyone who’s helped make it worthwhile.

In honor of today’s blogiversary, I thought I’d share my favorite post from each of the past nine years of blogging. Enjoy my jaunt through the archives.

I’ll be back tomorrow with post 2,423 as we start our march to close out decade number one.