Category: Commentary & Opinion

Posted on

Firing of ‘Irresistible’ Employee Does Not Equal Sex Discrimination?

Every now and again an employer wins a case that offends my sensibilities as an advocate for employers’ rights. This is one of those stories.

By now, you’ve likely read about the employee fired because her boss found her too attractive. You’ve also probably read how the Iowa Supreme Court concluded that an employee fired under these circumstances cannot pursue a claim for sex discrimination under that state’s civil rights laws.

Melissa Nelson worked as a dental hygienist for Dr. James Knight for 10 1/2 years. Knight terminated Nelson at his wife’s request. Nelson never flirted with Knight or sought an intimate or sexual relationship with him. Knight, however, was attracted to her, and made several comments to her about the tightness of her clothes, and their effect on the tightness of a certain area of his clothes.

Following Nelson’s termination, Knight replaced her with another female. In fact, every hygienist who ever worked for Knight was female.

In Nelson v. Knight (12/21/12), the Iowa Supreme Court concluded that Nelson had not presented a sex discrimination claim.

So the question we must answer is … whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction….

The civil rights laws seek to insure that employees are treated the same regardless of their sex or other protected status. Yet … Dr. Knight’s unfair decision to terminate Nelson … does not jeopardize that goal. This is illustrated by the fact that Dr. Knight hired a female replacement for Nelson….

Nelson raises a legitimate concern about a slippery slope. What if Dr. Knight had fired several female employees because he was concerned about being attracted to them? Or what if Ms. Knight demanded out of jealousy that her spouse terminate the employment of several women? The short answer is that those would be different cases. If an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues, it might well be possible to infer that gender and not the relationship was a motivating factor.

It is likewise true that a decision based on a gender stereotype can amount to unlawful sex discrimination…. If Nelson could show that she had been terminated because she did not conform to a particular stereotype, this might be a different case. But the record here does not support that conclusion. It is undisputed, rather, that Nelson was fired because Knight, unfairly or not, viewed her as a threat to her marriage.

The media has heavily criticized this decision. That criticism is warranted. Yes, Knight only employs female hygienists, and replaced Nelson with another female. One could also argue that the doctor only fired Nelson because of her looks, not because of her gender. Those arguments, though, ignore the fact that if she was a he, her looks would not have been an issue in her employment at all. The sex discrimination laws are supposed to insulate employees from employment decisions based on sex-based stereotypes, not protect the employers who make those decisions.

Nelson, a ten-plus-year employee, should not have to look for a new job merely because her boss might not be able to control himself around her. If the sex discrimination laws do not protect an employee like Nelson, then I fear we are taking a huge civil rights step backwards.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Posted on

Goal for 2013: No Goals

Maybe it’s time for a new year’s resolution that trashes previous ones.

Maybe we should toss goals in the garbage.

Author Peter Bregman has a provocative essay at Harvard Business Review arguing that goals can do more harm than good. “It’s not that goals, by their nature, are bad,” Bregman writes. “It’s just that they come with a number of side effects that suggest you may be better off without them.”

Bregman argues that goals can generate unnecessary stress, and he cites a HarvardBusinessSchoolworking paper with the excellent title, Goals Gone Wild. It finds goals can lead to myopia, harm interpersonal relationships and motivate unethical behavior. The paper also saw these side effects of goals: “corrosion of organizational culture” and “reduced intrinsic motivation.”

On the culture corrosion and unethical behavior fronts, the paper cites an example of Sears setting a productivity goal for its auto repair staff. Employees were asked to hit the target of $147 in sales for every hour of work. But the target prompted the staff to overcharge and complete unnecessary repairs on a companywide basis.

I think Bregman and the paper’s authors are onto something. Another piece of the puzzle concerns the way performance targets may crimp creativity.

Innovation is a top priority for executives worldwide these days. So we recently asked readers about the most effective tools for spurring innovation among employees (our package on innovation and workforce management will be published next month). We found that “Giving employees freedom to spend time developing ideas and projects” ranked as the second-most effective approach (behind “facilitating more collaboration among employees”). But providing employees with freedom ranked a distant fourth when companies were asked what strategies they are actually using.

In other words, companies know employee autonomy to explore ideas is a smart innovation strategy. But they aren’t tapping this tactic like they should. I suspect a major reason for the disconnect is that companies and employees are too focused on hitting their performance goals.

Yes, goals can be useful and sometimes can’t be avoided. But today’s business climate puts “measurable results” on a pedestal.

I’m among the guilty. I look for goals and goal-achievement in the companies I write about, in my own organization, in my own life. But lately, I’ve been feeling a lot of stress related to a book I’m co-writing and the deadlines I’ve helped to set. Fear that I won’t hit the goals sometimes leads me to procrastinate. Which of course deepens the stress!

So I took Bregman’s advice to consider an alternative to goals. Bregman (a former college classmate pal of mine) suggests thinking in terms of “areas of focus.” That is, prioritize important matters but avoid specific targets. More journey, less destination.

And it seems to be working! I decided not to worry about hitting a goal I’d set to complete a chapter draft by the end of the week, and immediately a great weight lifted off my shoulders. But that didn’t lead me to shirk the work. On the contrary, I dug into the project with as much gusto and effectiveness as I’ve had on it.

We’ll see whether I continue to be a goal-less wonder-worker. But for now, I’m taking aim at targets.

My goal for 2013 is to put goals in the trash.

Ed Frauenheim is senior editor at Workforce. Comment below or email efrauenheim@workforce.com.

Posted on

McDonald’s to Franchisees: Merry Christmas. Now Open Your Stores

When McDonald’s Corp. stunned analysts last week by posting U.S. sales growth in November after a drop the prior month, one contributor went untouted: The company gained sales by urging franchisees to open on Thanksgiving, a holiday during which many of them traditionally close.

But it’s not stopping with Thanksgiving. According to an internal memo obtained by Ad Age, McDonald’s is pushing franchisees to open on Christmas in a bid to lift December sales.

“Starting with Thanksgiving, ensure your restaurants are open throughout the holidays,” reads the Nov. 8 memo from McDonald’s USA Chief Operating Officer Jim Johannesen. “Our largest holiday opportunity as a system is Christmas Day. Last year, (company-operated) restaurants that opened on Christmas averaged $5,500 in sales.”

While that might not seem like much, consider this: In a second memo, dated Dec. 12, Johannesen pegged average sales for company-owned restaurants, which compose about 10 percent of its system, at “more than $6,000” this Thanksgiving. People close to the Oak Brook-based company said that about 6,000 more locations opened their doors this Thanksgiving than last year, so presuming their sales were on par with company-owned stores, that’s about $36 million in additional sales.

Should the same number of franchisees open on Christmas and the day’s take equal that of Thanksgiving, the bump jumps to a total of $72 million for the fourth quarter. And if Santa grants corporate’s wish and every store in McDonald’s 14,000-strong U.S. system opens on Christmas and rings up $6,000 each (a near impossibility), it could line the chain’s stocking on Dec. 25 with a total of $84 million.

But if only a few thousand stores open, it’s still a win, since even a little ho-ho-ho can turn around ho-hum sales. According to people close to the company, franchisees opening on Thanksgiving accounted for almost one percentage point of the company’s 2.5 percent growth in U.S. same-store sales in November.

“Our November results were driven, in part, by our Thanksgiving Day performance,” said Johannesen in the Dec. 12 memo. “Thanks to proper planning and your great execution, we capitalized on the opportunity to be open while our customers were on the road—and those customers rewarded us.”

McDonald’s spokeswoman Heather Oldani said the company does not comment on leaked documents or information, but added, “However, our restaurants will be open to serve our customers when and how they need over the holidays.”

Opening on holidays didn’t happen much in the company’s Christmases past. Richard Adams, a consultant and former McDonald’s franchisee, said, “Thanksgiving was never open, then 15 to 16 years ago, some started staying open.” As recently as five or six years ago, “you would never even talk about being open on Christmas, even if some were open on Thanksgiving. For the franchisees, this is a big cultural shift.”

But McDonald’s must pull out all the stops to eke out gains after its global October sales decline, its first in nine years. Howard Penney, restaurant industry analyst with Hedgeye Risk Management LLC in New Haven, Connecticut, said McDonald’s benefited in recent years from programs to keep stores open later and longer. But in recent years, those opportunities became exhausted, which was one of several reasons for the sales deceleration.

“They kind of maxed that out—all the restaurants that made sense to have open longer, they’ve already got those sales dollars—and that whole initiative kind of dried up in 2012,” he said. “These kinds of things have a limited-growth opportunity year over year.”

So are employees paid more to work holidays? Oldani said she can’t speak for franchisees, but “when our company-owned restaurants are open on the holidays, the staff voluntarily sign up to work. There is no regular overtime pay.”

McDonald’s other big play to boost fourth-quarter sales, as first reported by Ad Age, was to move one of its most-popular limited-time sandwiches to December.

So now kids can also leave Santa a McRib.

Maureen Morrison writes for Advertising Age, a sister publication of Workforce Management. Comment below or email editors@workforce.com.

Stay informed and connected. Get human resources news and HR features via Workforce Management’s Twitter feed or RSS feeds for mobile devices and news readers.

Posted on

Some Thoughts on Sandy Hook and Workplace Violence

There is nothing to say that can capture the grief and inhumanity we all witnessed last Friday, Dec. 14. For what it’s worth, and because these events of unmistakable tragedy seem to be occurring at a more rapid clip, let me share some of my previous thoughts on how to cope when violence invades the workplace.

In the wake of this tragedy, lots will be written about the need for tougher gun laws, better help for the mentally ill, and whether 24/7 news coverage of these tragic events helps encourage the next person to shoot for his 15 minutes of fame. The reality is that nothing can stop these events from happening. If an evil or sick person wants to get his or her hands on some guns and impose his evil or illness on a group of innocent people, there is nothing anyone to can do to stop it. All we can do is offer our prayers in its aftermath.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Posted on

SAP Spreads the Word through Employee Brand Ambassadors

This year, SAP launched the Social Sabbatical program, a corporate social responsibility effort through which high-potential employees spend three weeks embedded with entrepreneurial companies in Brazil, India and South Africa helping them solve business challenges.

The program was created to give employees leadership opportunities while making a tangible social impact, says Brittany Lothe, SAP’s head of corporate social responsibility. But it also created a unique group of public ambassadors for the SAP brand.

“There is no better story teller than someone who is living and breathing a new experience,” she says.

To make the most of this opportunity to spread the word about SAP’s corporate social responsibility efforts, the 30 participants completed four weeks of preparation leading up to the projects, which included training on how to use social media tools to talk about their experiences.

Along with teaching them how to use social media tools to tell their stories, SAP had communication team members available in each country to answer questions and bounce ideas around. “The training let them know they were not going it alone,” Lothe says.

Once embedded, all of the participants tweeted photos and updates, and several of them wrote longer posts and blogs from the field after they returned.

“There was so much to communicate,” says Evan Welsh an SAP employee who worked with ASMARE, an association of Brazilian catadores—garbage collectors who gather trash at night and then separate out reusable recyclable materials. Welsh’s team helped the group create marketing materials including a newsletter, communication plan and templates for promotional efforts to raise awareness about the work ASMARE and the catadores do.

Many of the catadores were formerly homeless or in jail before they began to work with ASMARE, which also operates a restaurant and gallery to display art that the catadores make from the recycled materials. Working with the catadores had a profound impact on Welsh and his colleagues, and within days of arriving, they started posting stories, pictures and video interviews on Facebook, Twitter and SAP’s Community Network. The teams in India and South Africa shared similar stories.

“These are by far the highest read posts we’ve ever had on our community network or our Facebook page,” Lothe says, noting that thousands of readers have clicked through since the program launched. Lothe reposted many of the blogs and photos across SAP’s internal network, and encouraged employees to share the stories on their own social networks.

“Empowerment was such an important part of this process,” she says, noting that employees were not required to post about their experiences, but it was encouraged. “It was an opportunity for them to share their stories, and we were able to leverage their experience and enthusiasm to extend the brand.”

Sarah Fister Gale is a freelance writer based in the Chicago area. Comment below or email editors@workforce.com.

Posted on

Arbitrator Reinstates Chrysler Workers Fired for Drinking During Breaks

More than a dozen Chrysler Group assembly-plant workers who were fired in 2010 after being filmed by a Detroit television station drinking alcohol and smoking during their breaks have been reinstated in their jobs by an arbitrator.

The workers were fired in September 2010 after WJBK, a Fox network station in Detroit, filmed them during breaks from Chrysler’s Jefferson North Assembly plant drinking alcohol and smoking in a nearby parking lot over several days.

The 2010 news video showed the men then returning to work. Chrysler suspended two of the workers in the video for a month without pay and fired 13 others. The station aired its latest story the evening of Dec. 7.

At the time, Chrysler said it “will not tolerate such behavior and will continue to evaluate its protocols to ensure that something like this does not happen again.”

The United Auto Workers union filed grievances on behalf of the fired workers, and a third-party arbitrator agreed with the union that Chrysler had improperly terminated the employees.

“After more than two years, an arbitrator decided in the workers’ favor, citing insufficient conclusive evidence to uphold the dismissals. This was a decision that Chrysler Group does not agree with,” Scott Garberding, Chrysler’s head of manufacturing, wrote in a blog post today.

“I want you to know that Chrysler Group does not condone, in any way, this type of misconduct, but we’re in the tough spot of having to accept the arbitrator’s decision, just as the (UAW) must when the ruling is in the favor of the company.”

A Chrysler spokeswoman confirmed that all of the fired employees have been reinstated. It was not clear if they collected back pay.

“Chrysler Group acknowledges the reinstatement of a number of employees from the Jefferson North assembly plant who were discharged from the company in September 2010 after appearing in a local TV station’s story about their off-duty conduct,” the company’s statement said in part.

It continued: “While the company does not agree with the ultimate decision of the arbitrator, we respect the grievance procedure process as outlined in the collective bargaining agreement and our relationship with the UAW.

“Unfortunately, the company was put in a very difficult position because of the way the story was investigated and ultimately revealed to the public. These employees from Jefferson North have been off work for more than two years. The time has come to put this situation behind us and resume our focus on building quality products that will firmly establish Chrysler Group’s position in the marketplace.”

Larry P. Vellequette writes for Automotive News, a sister publication of Workforce Management. Comment below or email editors@workforce.com.

Stay informed and connected. Get human resources news and HR features via Workforce Management’s Twitter feed or RSS feeds for mobile devices and news readers.

Posted on

Year-End Pension Funding Gaps Could be Largest on Record: Mercer

Pension funding levels among large employers rebounded slightly in November, though analysts predict year-end funding gaps could be the largest ever recorded, according to a Mercer L.L.C. report released on Dec. 5.

The aggregate funding deficit in pension plans sponsored by S&P 1500 employers narrowed to $607 billion in November, down $12 billion from the $619 billion deficit recorded in October. The gap represents an aggregate funded ratio of 72 percent, unchanged from October and slightly above the record low 70 percent funded ratio recorded in July.

In the report, Mercer analysts said the slight improvement witnessed in November was due largely to modest equity market gains and discount rates remaining relatively flat through the month.

Despite November’s gains, analysts said the year-end aggregate deficit was likely to be highest on record since Mercer began tracking pension funding among S&P 1500 firms in 2007, having already grown by $124 billion over the $484 billion gap recorded at the end of 2011.

Jonathan Barry, a Boston, Massachusetts-based partner in Mercer’s retirement risk and finance group, said it was unclear whether employer gains made in November could be continued into the final month of the year, especially given fluctuations in equity markets pinned to tense negotiations over the federal budget.

“We don’t have any expectations of significant changes in interest rates over the next 30 days, and equity markets could be volatile due to uncertainty around the fiscal cliff,” Barry said in a statement from Mercer. “It is very likely that we will see these plans at the highest aggregate deficit since we have tracked this data. This will mean higher year-end balance sheet deficits and pensions and liabilities expense for 2013.”

Mercer’s report estimated the aggregate value of S&P 1500-sponsored plan assets at $1.59 trillion through Nov. 30, compared with an estimated aggregate liability of $2.19 trillion.

Matt Dunning writes for Business Insurance, a sister publication of Workforce Management. Comment below or email editors@workforce.com.

Stay informed and connected. Get human resources news and HR features via Workforce Management’s Twitter feed or RSS feeds for mobile devices and news readers.

Posted on

An Empty Stocking for Garbage Workers

At this rate, garbage collectors might be happy getting a lump of coal.

Consumer Reports has released its annual survey on holiday tipping, and, again, garbage collectors rank at the bottom as the least-tipped service-provider.

Only 7 percent of Americans give their collection workers cash, check or a gift card, and only 3 percent gave them a holiday gift. In other words, 90 percent of Americans give nothing to their garbage collectors, according to the survey, which polled 2,028 adults via phone.

Last year’s survey showed 88 percent of Americans leaving nothing for their garbage workers.

The tips from those 10 percent who remember collection workers averaged a $20 value, according to the survey.

Housecleaners were the providers tipped most often, with 53 percent of Americans giving them cash, check or gift card, and 15 percent giving them a gift. Average total value of their tips was $50.

Teachers (47 percent tipped) and hairdressers (46 percent) were also among the most tipped.

After garbage collectors, the least-tipped service providers included mail carriers (21 percent) and lawn-care workers (25 percent).

The survey also revealed that about a quarter of Americans don’t tip at all, ever.

Waste & Recycling News is a sister publication of Workforce Management. Comment below or email editors@workforce.com.

Stay informed and connected. Get human resources news and HR features via Workforce Management’s Twitter feed or RSS feeds for mobile devices and news readers.

Posted on

What Is the Best Way to Benchmark First-Year Turnover?

 

Dear Turnover Tension:

 

Your best approach would be to assume that turnover is not healthy and keep adjusting your goals to make it better. Not the answer you were expecting?

In his book “Good to Great: Why Some Companies Make the Leap … and Others Don’t,” author Jim Collins notes how good organizations look over their shoulder at competitors’ metrics for comparison. Great organizations, on the other hand, compare themselves only to themselves.

You lose most new employees either because you hire them wrongly or manage them poorly. It requires taking responsibility to improve your organization’s performance. Some would argue that a certain amount of turnover is good. But what’s wrong with keeping everyone you desire to keep—if you truly do want to keep them?

Some comparison metrics provide false hope. Should you be pleased if your turnover is 25 percent while that of your competitor is 30 percent? Or if you conduct an engagement survey and 63 percent of your team is engaged versus a comparison metric of 61 percent? Flip it around: Should you feel content if 25 percent of your workforce is looking to jump ship or if 37 percent are disengaged?

A far better metric is to place a dollar value on turnover and drive your losses down by reducing all forms of turnover. Your top team will be motivated to help you improve turnover once they see the dollars lost—rather than taking comfort by comparing your company’s performance to others.

That’s the best way to avoid targeting your company settling for being only better than average, and move up to the class of excellence.

SOURCE: Dick Finnegan, Retention Institute, Longwood, Florida

LEARN MORE: Workforce.com has a free whitepaper “Leading the Way in Employee Engagement & Retention,” available for download here.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Posted on

Two-Tiered Pay Scale for Autoworkers Raises Debate

In most of his 32-year career as a Michigan autoworker and union leader, Frank Hammer never imagined the United Auto Workers agreeing to major concessions when it came to core principles: equal pay for equal work, job security and generous pensions.

But an erosion of those key values has arrived and at a rapid pace over the past several years: Enter a two-tiered salary system. Beginning in 2007, the UAW has drafted contracts with the Detroit Three automakers aimed at rebuilding a struggling American auto industry and preventing thousands of American jobs from moving overseas. One of the key changes in the contracts allowed for a two-tiered salary system, letting entry-level workers earn far less than traditional workers while also forgoing pensions and more generous health plans.

As a result, roughly 13 percent of General Motors Co., Ford Motor Co. and Chrysler Group hourly workers, or about 15,000 employees, are now in those lower-paid positions, shows a recent study from the Center for Automotive Research in Ann Arbor, Michigan.

Before the UAW agreed to the new salary structure, the average worker cost GM about $79 per hour in wages and benefits. Today, that figure is down to $58, largely because of the growing number of entry-level positions coming into the system, says Kristin Dziczek, a director at the Center for Automotive Research. Typical entry -level workers earn about $19 per hour, with workers in warehousing and distribution positions making less than $15 per hour, she says.

The new salary structure has taken a toll on all autoworkers, undermining the ability of workers to live a decent wage and quality of life, says Hammer, who retired in 2006 and is now a leader of The Autoworker Caravan, a Michigan-based advocacy group formed in 2008 for unionized autoworkers.

“The morale of workers in the plants is not at all what it used to be,” Hammer says. “You face situations where a mother and son can be working on two different sides of the assembly line doing the same job, but one is working at half the wage of the other.”

But Dziczek says many new autoworkers are happy to take the jobs, even at drastically lower salaries, because the depressed job market offers them few other opportunities.

“Traditional workers really feel these [new] people have gotten a raw deal,” she says, “but entry-level workers are looking at it differently, figuring, ‘If I stick around long enough, I’ll get the wage you got.’ They understand the bargain.”

GM spokesman Bill Grotz says the contract negotiated in 2007 has resulted in about 9 percent of the automaker’s current workforce being entry level, and it’s working well. “Overall, it was a pretty innovative labor agreement. … It helped us stay competitive, open more plants and provide more opportunities for more jobs,” he says.

Art Schwartz was GM’s general director of labor relations from 1985 through 2009. Now a retired consultant, he says the criticism of entry-level positions is misplaced, given that the jobs are still very attractive to job seekers. Furthermore, the industry—faced with globalization—had few other options for survival.

“These are still good jobs. They still pay benefits,” Schwartz says. “The health care is extremely good. … We’re talking about an industry that’s competing very hard in a global marketplace, where they tend to have a labor-cost advantage. This is one way of trying to overcome it without damaging anybody who’s already there.”

Some analysts say the union’s concessions may have a lasting effect, not just for the auto industry but for the power and integrity of unions across many fields.

Dziczek says the new salary structure would have been unheard of only a few years before, but the union and automakers had to take dramatic action to save U.S. jobs.

“They all had to do something because labor costs were so out of whack with other competitors in this market,” Dziczek says. The union “knew that a total wage concession was unlikely to ratify so this was one way of getting labor costs down without taking money out of the pockets of the people who were voting on the agreement.”

Dzicek’s recent analysis projects a steady climb in entry-level positions over the next several years. She predicts that by 2015, 35 percent of Chrysler’s workforce will be entry level, with GM at about 23 percent and Ford at 15 percent.

In the meantime, Hammer expects opposition from autoworkers to continue, as the pay disparities become more obvious over time.

“I think there’s certainly sentiments out there that people are just glad that they’re working,” Hammer says. “But it’s becoming extremely more difficult to sustain a normal quality of life with these jobs.”

Meg McSherry Breslin is a writer based in the Chicago area. Comment below or email editors@workforce.com.