On Saturday, millions worldwide (2.6 million, according to USA Today) marched for womenâs rights. On Feb. 2, the Senate Health, Education, Labor and Pensions committee will hold its confirmation hearing for labor secretary nominee Andrew Puzder.
âWhat does one have to do with the other,â you ask? Consider this â
Puzder is CEO of CKE Restaurants, the parent company for fast-food chains Carlâs Jr. and Hardeeâs, and he approved that message.
No doubt, Puzder would be good for many issues that are important to my readers: the $15 minimum wage, the DOLâs pending overtime regulations, and the NLRBâs radical expansion of joint-employer liability. On each of these issues, he and I are in strong agreement, and I would welcome his voice leading the business charge at the DOL.
Yet he also believes that objectifying women is an acceptable way to sell burgers. On this point, he and I differ dramatically. Indeed, despite all of his other policy position, this one fact should disqualify him from heading the federal department responsible for Americaâs workers (46.8 percent of which are women, according to the DOLâs Womenâs Bureau).
Salon quotes Puzderâs defense of his companyâs ads:
I like our ads. I like beautiful women eating burgers in bikinis. I think itâs very American. I used to hear, brands take on the personality of the CEO. ⌠And I rarely thought that was true, but I think this one, in this case, it kind of did take on my personality.
My sonâs now 17, but when he was 13 he didnât want to eat at âthe kingâ [or] âthe clown,â he wanted to eat where his brother ate, so he wanted to be a young hungry guy. Iâm 64, I want to be a young hungry guy. Some young ladies in your age group like to date young hungry guys.
This âpersonalityâ has no business directing our nationâs labor policy. Surely, there must be other qualified candidates that hold similar positions of key labor issues such as minimum wage, overtime and joint employment without this sexist baggage.
On Feb. 2, I will be watching Puzder’s confirmation with great interest to see how he answers the inevitable questions about these advertisements, and with greater interest to see how the R’s on committee handle the same topic.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
Some people need service dogs to get to work. But many more simply want to take their dogs to work. What is the protocol? What are the HR rules on this? And what are the penalties for illegally taking a dog to work?
Are you thinking about opening up your business to employeesâ pets? You will find very few resources on the internet to help. And, you will need a written policy before you allow pets in. Here are some considerations:
People come first. Despite your desire to allow pets â whether as a perk, a recruitment tool or both â your employees still make up the core of your enterprise. If you have to choose between an employee or a pet, you should always choose the employee.
One of the biggest legal risks is the Americans with Disabilities Act. If an employee is allergic to animals, pet owners must understand that they may have to leave their animals at home as a reasonable accommodation. Other possible accommodations include creating sufficient separation between the allergic employee and the pet, segregating the pet to a specific part of the facility, or improving ventilation. Ignoring the pleas of an allergic employee, though, will open you up to potential ADA liability. On the converse, in all but the most extreme circumstances, you are likely required to allow a service dog (or miniature horse) as a reasonable accommodation, even if you prohibit all other pets.
Remember: Pets are cute, but it’s people first in the workplace.
Animals must of âoffice broken.â Animals with any bite history should not be permitted. Moreover, any aggressive behavior, such as growling, barking, chasing, or biting, should result in the animalâs expulsion on the first complaint. Animals should also be house broken, friendly towards people and other animals, and not protective of their owners or their ownersâ spaces. Finally, you should define when animals must be leashed or caged, and what is expected of employees when they have to leave the workplace during the work day.
Respect for property. Designate a specific area outside for animals to go to the bathroom (preferably away from the entrances), and make sure pet owners understand that it is their responsibility to clean up messes outside and accidents inside.
Licenses and vaccinations. Before being permitted to bring animals to work, owners should verify that vaccinations are up to date, and that the animal licensed and free of parasites and insects.
Liability. Employees should verify, in writing, that they have sufficient home ownersâ or rentersâ insurance to cover any damage to person or property caused by the animal. You should also consider indemnification in case your business gets sued, and a written paycheck deduction authorization for any damage caused.
If you are considering having a pet-friendly workplace, I recommend contacting employment counsel to walk you through the risks and to assist in drafting an appropriate policy.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
Making employment decisions using cold, hard data seems wrong and risky. But is it?
Big data analytics promises to save companies millions of dollars by streamlining employment decisions and preserving workforces. But is there risk in relying too heavily on automated workforce decisions?
We encounter the results of big data analytics every day, yet we rarely question the appropriateness of its use. Think about the last time you applied for health insurance â the application likely requested information regarding your health history. Your personal health history can help predict whether you will become seriously ill in the future; a prediction that will partly determine your insurability. The process of applying for a loan is similar. The lender will review your credit history to determine how likely you are to repay the loan based on the lenderâs experience with others with a similar credit history. This is analytics at work, and, for the most part, it operates very effectively.
Despite widespread adoption of big data analytics in virtually all aspects of business and business management, use of analytics in workforce management has lagged. This is due in large part to the way human resources professionals have been trained to manage personnel matters.
HR often involves emotions and complex notions of equity and fairness. This is a far cry from the sometimes cold, dry reality of financial transactions. HR professionals are trained to examine each personnel matter individually, talk to the parties involved, review documentation, and consider institutional employment policies in the legal context. Making employment decisions using cold, hard data seems wrong and, perhaps, risky. But is it?
Several reports, including from the U.S. Federal Trade Commission and the White House, have cautioned on the risk of making biased workforce decisions based on big data analytics. Users of HR analytics tools even have been advised to monitor their workforce for any evidence of âdiscrimination by algorithm.â
The Equal Employment Opportunity Commission held a public meeting on the use of big data in employment in October 2016, during which the Agency explored the benefits and risks of using big data analytics in the workplace.
Do the benefits outweigh the risks? Yes, if the analytics are designed and deployed properly. Appropriate use of analytics allows corporations to predict attrition likelihood, optimize recruitment efforts, gauge employee morale, and focus training and development efforts on what requires the most attention, among other benefits. These use-cases not only can result in a more efficient and better workforce, they can translate directly into company savings.
In Eric Siegelâs âPredictive Analytics, The Power to Predict Who Will Click, Buy, Lie, Or Die,â he points to case studies that demonstrate the value big data analytics brings to the workplace. In one, a well-known tech company used big data analytics to create a scoring system that predicts which of several hundred thousand employees were more likely to leave the organization. The flight risk score empowered company managers to prevent the loss from actually occurring or to plan for the departure. He said the system resulted in $300 million in potential savings.
The benefit is real, but commentators ask how real is the risk? Are the analytics and the algorithms on which they are often based tainted with bias?
Algorithms created to help employers make employment-related decisions certainly could be tainted with bias. For example, one designed to help a talent acquisition team identify successful candidates may take race or gender into account.
Even if race or gender is not used to explicitly identify successful candidates, using the algorithm could unintentionally result in disproportionately excluding a particular race or gender from the preferred applicant pool. Bias is entirely avoidable, however, if the analytics are carefully and correctly designed.
Humans, of course, are not perfect. We have a number of unintentional biases arising from seemingly well-informed decisions based on the experience and intuition of talent management team members. If used correctly, big data analytics can remove potentially biased intuition and, instead, support decisions with reliable and neutral data science.
Why do some commentators remain concerned? Perhaps itâs the feeling that employment decisions are about people, not cold, hard data.
In any event, responsible employers contemplating employment analytics platforms must ensure their algorithms and models do not incorporate protected characteristics such as race and gender as a predictive variable. Moreover, employers must review periodically the models to determine whether certain individuals are being disproportionately excluded or harmed.
The most reliable and effective HR analytics platforms provide guidance to companies faced with employment-related decisions. The algorithms alone should never drive the decision. This point is nicely illustrated in the above example of using flight risk scores. Once flight-bound employees are identified, managers can try to affect employeesâ decisions to leave. This hybrid approach leverages the analytics to identify the areas of highest risk and permits companies to focus their efforts and resources in a meaningful and effective way.
Use of big data analytics in the workplace is here to stay. Embrace it. When utilized properly, analytics can have a significant impact on companiesâ bottom lines and help preserve their employees.
Eric J. Felsberg is a principal and national director of JL Data Analytics at Jackson Lewis P.C.
The first day of the new year was pretty eventful for Lamar Austin. The 30-year-old welcomed a son and got fired on the very same day â Jan. 1. âŚ
On Dec. 31, Austinâs wife Lindsay went into labor. He decided that he was going to stay by her side for the birth of their son ⌠. Yet, in order to do this Austin had to forgo two days of work as a part-time security guard with a company called Salerno Protective Services while his wife was in labor.
âI thought, âIâm just going to do what I feel is right for my family,â and thatâs it,â he told the Huffington Post.
Austin, a military veteran and father of four, had just started the job and was on a 90-day trial period. Despite having shown up to all his previous shifts, he received a text at 1 a.m. on Jan. 1, informing him that he was terminated due to his absences.
Thankfully, my faith in humanity is not shaken. The Huffington Post reports that Austinâs email has been flooded with job offers since this story broke.
And, yes, I get it. New employee. No FMLA. Unclear whether he properly called off work. But seriously? Military vet. New father. Fired via text while by his wifeâs postpartum bedside. Am I wrong to think that Salerno Protective Services deserves this nomination?
We will circle back at the end of the year to see if any employer can top this. But, for now, congratulations Salerno Protective Services, you are my first nominee for the Worst Employer of 2017. Follow along all year for future nominees, and an exciting year-end poll to name the winner (or is it the loser?) of this new feature.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
F-M-L-A: Four letters that cast fear in the heart of any HR professional. So many rules to follow, so many ways to mess up and cost an employer. It’s not just an employer that has FMLA rules to follow, however. Employees also have rules that they must follow, or the FMLA will not protect their leave.
In Alexander v. Kellogg USAÂ (6th Cir. 1/4/17) [pdf], an injured production operator terminated for unexcused absences lost his FMLA claim because he failed to follow his employer’s attendance policy.
Christopher Alexander injured his neck in a slip-and-fall at work. He sought and obtained intermittent FMLA leave for the injury. Kellogg has an attendance policy that requires employees intending to be absent to use a call service to notify the company at least two hours before the designated start time. Kellogg uses Cigna to administer its FMLA leave. Cigna separately requires an employee on approved intermittent FMLA leave to report any FMLA absence within 48 hours of missing work; otherwise, the absence is unexcused.
Alexander reported his FMLA absences to Kellogg using its call service, but failed to separately notify Cigna, which logged the absences as unexcused. When Alexander amassed enough absences, Kellogg terminated his employment.
Alexander sued for FMLA interference and retaliation. The 6th Circuit affirmed the dismissal of his claims:
The record does not permit even a prima facie case for FMLA interference. Alexander neglected to notify Cigna, and thus Kellogg, of his intent to be absent on November 20 and from December 9 to 11 under his approved FMLA leave. He admits not reporting any of the absences to Cigna within forty-eight hours of missing work by phone or onlineâKelloggâs internal requirement.⌠[A]n FMLA regulation authorizes employers to deny FMLA leave for failure to comply with internal notice requirements âabsent unusual circumstances.â ⌠Alexander has neither offered evidence of unusual circumstances in his case nor has he alleged ignorance of Cignaâs/Kelloggâs internal notice requirement. âŚ
There is [also] no evidence that Alexander exercised a right under the FMLA for the purposes of his retaliation claim. The catalysts for Kelloggâs supposed retaliationâterminating Alexanderâwere his unexcused, ultimately excessive absences beginning on November 20.âŚÂ Since the statute cannot protect non-FMLA leave, Alexander cannot satisfy the first element of a prima facie FMLA case.
While it may seem as if employees hold all the high cards in the FMLA poker game, employers are well within their rights to enforce attendance policies against employees who fail to follow their rules. Now, go check your attendance policies to see if they contain these types of notice and call-in rules, and, if not, consider implementing reasonable call-in requirements to help curb FMLA abuse and over-use. If the law allows you to take advantage of these policies, why not help level the playing field against a statute that, more often than not, favors the employee.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
How did that case turn out for the employer? Not well. From the EEOC:
Saint Vincent Health Center will pay $300,000 constituting back pay and compensatory damages to a class of six aggrieved former employees ⌠.
In addition to requiring monetary relief and offers of reinstatement for the six employees, the consent decree contains multiple injunctive components. Under the decree, if the Health Center chooses to require employee influenza vaccination as a condition of employment, it must grant exemptions from that requirement to all employees with sincerely held religious beliefs who request exemption from the vaccination on religious grounds unless such exemption poses an undue hardship on the Health Centerâs operations, and it must also notify employees of their right to request religious exemption and establish appropriate procedures for considering any such accommodation requests. The decree also requires that when considering requests for religious accommodation, the Health Center must adhere to the definition of âreligionâ established by Title VII and controlling federal court decisions, a definition that forbids employers from rejecting accommodation requests based on their disagreement with an employeeâs belief; their opinion that the belief is unfounded, illogical, or inconsistent in some way; or their conclusion that an employeeâs belief is not an official tenet or endorsed teaching of any particular religion or denomination.
Ouch.
What does this mean for employers? Iâll allow Philadelphia District regional attorney, Debra M. Lawrence, who prosecuted the Saint Vincent Health Center case, to explain.
While Title VII does not prohibit health care employers from adopting seasonal flu vaccination requirements for their workers, those requirements, like any other employment rules, are subject to the employerâs Title VII duty to provide reasonable accommodation for religion. In that context, reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employerâs operations.
In other words, if you require flu shots for your employees (a policy I wholeheartedly endorse), you must be willing to exempt certain employees as an accommodation for their religions (and disabilities, as well).
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
Itâs only the 4th day of January and we already have an early contender for employee of the year. I cannot do this story any justice better than the original article in the New York Post.
This human resources director is taking legal action to find out who wants her to eat a bag of dâks.
Melody Lenox filed a lawsuit Tuesday after she was less than amused to receive a package of gummy penises. Lenox, who works for Axxess Technology Solutions in Dallas, alleges this is not the work of a generous individual, but someone trying to harass her.âŚ
The package, which came from a company aptly named Dâks By Mail, was sent to her on Dec. 7. She sued the company demanding it reveal the pranksterâs identity so she âcan put an end to the harassment,â according to the suit.
On the company website, Dâks By Mail markets itself as a âgreat way to tell your friends, family, loved ones, or enemies to EAT A BAG OF DâKS.â
OK, 2017, you are officially on the clock to find a worse employee. There are 361 days and counting.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
We are going to begin 2017 near where we brought 2016 to a close â gun-owner protections.
Shortly before the end of Ohioâs 131st legislative session,
Eleventh-hour legislative wrangling removed certain provisions that would have elevated âconcealed handgun licensureâ to a protected class under Ohioâs employment discrimination law, on par with race, color, religion, sex, military status, national origin, disability, age, and ancestry. The enacted version of the bill removed these protections, while maintaining employeesâ concealed-carry rights in their vehicles.
The question is, does this omission make a real-world difference? Under Ohio law, the termination of an at-will employee that jeopardizes a clear public policy articulated in the Ohio or United States Constitutions, federal or state statutes, administrative rules and regulations, or common law creates a cause of action for wrongful discharge in violation of that public policy.
Ohio Revised Code section 2923.1210 now protects the right of a person who has been issued a valid concealed handgun license to transport or store a firearm inside the personâs privately owned vehicle while parked on employerâs property. Thus, if an employer terminates an employee because the employee is lawfully storing a gun in his or parked car on the employerâs property, that employee likely can assert a wrongful discharge claim.
In other words, S.B. 199 elevates concealed handgun licensure to a protected class in function.
I applaud the Ohio legislature for removing the anti-discrimination protections from this bill. I am concerned, however, that it did not go far enough by leaving the wrongful-discharge loophole in place.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
While Iâd like to believe that every post Iâve ever written is indelibly embossed on the brain of every person thatâs 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.
The Christmas season is upon us, which means that the elves are hard at work deep inside the confines of the North Poleâs factories preparing gifts to load onto Santaâs sleight for his Yuletide trip around the globe. Pop cultureâsuch as âRudolph the Red-Nosed Reindeerâ and âElfââportrays Santaâs 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.
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 â 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 âas a gesture of solidarity withâ their âfellow employees.â
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 worldâs 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 youâre looking for a good holiday gift for that special HR person in your life, I strongly recommend âThe North Pole Employee Handbook.â
Also, donât 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 Hymanâs blog at Workforce.com/PracticalEmployer.
Five women sued the city of Chicago after being passed over for paramedic jobs because they failed a required physical fitness test. The women claimed the test was designed to weed out women applicants and unfairly impacted women in violation of Title VII. Approximately 47 percent of women who took the test with the plaintiffs in 2004 passed, compared with more than 95 percent of men. The U.S. Court of Appeals for the 7th Circuit held that the city could not prove the test was necessary to assess job performance for paramedics because it was based on a set of skill samples that donât reflect what the paramedics actually do. The court recognized that âin itself, there is nothing unfair about women characteristically obtaining lower physical skills scores than men. ⌠But the law clearly requires that this difference in score must correlate with a difference in job performance.â Without that correlation, the test ârisks cementing unfairness into Chicagoâs job-application process.â Ernst v. City of Chicago, Case Nos. 14-3783 and 15-2030 (7th Cir. Sept. 19, 2016).
Impact: While employers are not prohibited from administering physical tests for its job applicants, the test must actually measure job qualifications.
Mark T. Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. Comment below, or email editors@workforce.com.
