Samantha Chambers, Talent Management Specialist, Kronos Inc.
Over the past seven years, Samantha Chambers has risen from intern to specialist in talent management at Kronos. A deep pride in her work, and the work of her company, helped get her there. This has meant she’s worked to improve and grow as she moved through the company’s compensation division to her current place in talent management.
“I always want to be making sure that I’m doing what I can to better myself and better myself in my role,” she said.
Some of Chambers’ greatest strengths are her analytical skill and project managing expertise. Tammy Hickey, senior manager of talent management, wrote, “Samantha brings a critical blend of analytics and project and program management skills that are essential to the HR function in today’s world.”
Her ability to pluck the key information from reams of data has made her a go-to individual for analysis. “I love data and numbers and trying to understand the story through data,” said Chambers, 29.
Team members from all over have sought out the University of Massachusetts Dartmouth graduate for projects. These include streamlining the nomination process for Kronos’ leadership award program, creating a program that helps high-potential employees rise to managerial positions and leading a team to improve Kronos’ Glassdoor results.
“I kind of have done a little bit of everything,” Chambers said, referencing the span of her career.
The Glassdoor “SWAT” team she led resulted in Kronos’ debut on the Glassdoor Best Places to Work list. She also planned and later implemented an unlimited vacation policy for the company. “That was a pretty exciting project to work on,” she said. “Especially to have been working on it for a couple of years, then actually being able to be a part of when we were ready to move forward.”
Her new position in talent management is a step outside her previous experience. The challenge didn’t frighten her, though. Chambers said that she thrives on novel experiences and is eager to gain a wide understanding of the HR world. “I think that I’m a very quick learner, so I’m always intrigued by something new and something different,” she said.
Though her new role has her juggling many responsibilities, from talent reviews to engagement, Chambers is prepared to adapt and embrace new opportunities with an open mind. Her successes, though, haven’t changed her belief that more than just work got her where she is.
“I was very lucky,” Chambers said. “I know I work hard, and I don’t always give myself enough credit, but I also think that I really lucked out.”
Former New Orleans Saints cheerleader Bailey Davis has filed a complaint with the EEOC accusing her former employer of having one set of rules for its male players, and another for its female cheerleaders.
The Saints fired Davis after it claimed she violated a rule prohibiting cheerleaders from appearing in photos nude, semi-nude, or in lingerie. She had posted a photo of herself in a one-piece outfit to her private Instagram.
The New York Times reports that the Saints maintain two sets of work rules, one for it all-female cheerleaders, and and other for its all-male players.
Cheerleaders must avoid any contact with players, in person or on social media. The players, however, are not similarly prohibited from initiating engagement with cheerleaders.
Cheerleaders must block players on social media and can not post photos of themselves in Saints gear. Players have no such restrictions.
Cheerleaders must not dine in the same restaurants as players, must leave a restaurant if they enter and a player is already there, and must leave if they are dining and a player subsequently enters. The Saints, however, impose no such limits on the players.
The Saints argue that the rules are necessary to protect the cheerleaders from harassment and other predatory behavior of the players.
According to Davis’s lawyer, Sara Blackwell, “If the cheerleaders can’t contact the players, then the players shouldn’t be able to contact the cheerleaders. The antiquated stereotype of women needing to hide for their own protection is not permitted in America and certainly not in the workplace.”
There is nothing inherently illegal about having different sets of work rules for different classes or groups of employees. The law merely requires that you apply similar treatment to similarly situated employees. And the Saints will argue that its cheerleaders and its players aren’t similarly situated.
However, one’s discrimination Spidey-sense should be going off when one of those groups is all male, and the other all female. Is there a legitimate business need to apply different work rules for these groups, or is it based on a outdated (and sexist) notion that women cannot protect themselves? It’s 2018; women are quite capable of managing their own inter-personal relationships without their employer’s interference.
No-fraternization policies are one avenue for an employer to limit its harassment liability. That avenue, however, cannot be one-way. The ban should apply equally to both genders. Otherwise, the liability limitations you think you are creating are being swallowed up by the gender discrimination problem you just created.
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.
Following a wave of paid sick leave laws across the country, predictive scheduling is among the newest issues confronting employers. A recent measure in Oregon is scheduled to take effect July 1.
The development gives Oregon the first statewide predictive scheduling measure, also known as a “fair workweek” law, but it comes after similar municipal laws were approved in Seattle, San Francisco and New York City.
Under the new measure, large employers will lose some flexibility around scheduling practices but their employees will gain predictability. Employers must provide copies of the written work schedule to employees at least seven days in advance (this increases to 14 days on July 1, 2020). Any changes to the schedule — outside of the notice period — require employers to provide additional compensation to the affected employees. The additional compensation, also known as “predictability pay,” is required in the following circumstances:
Employers must pay one additional hour of pay at the employee’s regular rate if the employer does any of the following without proper notice: adds more than 30 minutes of work to an employee’s shift; changes the date, start time or end time of a shift without affecting total hours worked; or schedules the employee for an additional shift (including on-call shifts).
Employers must pay an additional one-half times the employee’s regular rate for each scheduled hour that the employee does not work if the employer subtracts hours from a shift; changes the date, start time or end time of a shift, resulting in a loss of work hours; cancels a shift; or for on-call employee, does not ask the employee to perform work while on call.
Employers cannot require employees to report back to work less than 10 hours after ending the previous shift unless the employee requests the shift or consents, in which case the employer must pay one-and-one-half times the regular rate of pay.
The biggest takeaway is an employee cannot be forced to report for a shift that was not previously scheduled, regardless of whether the employer provides predictability pay. However, the measure provides several ways an employer can avoid predictability pay.
For example, employees can opt in to a “standby” list to volunteer to pick up additional shifts without receiving predictability pay. If the employer has contacted all employees on the standby list and still requires additional workers, then the employer can avoid the predictability pay. In addition, employers can avoid predictability pay if there are “unanticipated customer needs or unexpected employee absences”; the employer requests volunteers through group communication; the employee volunteers; there is an emergency or unforeseeable event; or the employee’s hours are reduced for a disciplinary reason with just cause.
Employers must be ready to comply when the law takes effect because violations may be costly. The Oregon measure provides employees with a private right of action for violations, civil penalties ranging between $500 and $1,000 for each violation, and creates a new basis for retaliation claims (including an award of attorneys’ fees).
What Are the Law’s Implications?
This is just the beginning of predictive scheduling, and Oregon’s approach suggests that the issue will continue to affect employers across the country. Oregon’s bill applies to employers in the retail, hospitality and food service industries with more than 500 employees.
Similarly, Seattle’s predictive scheduling ordinance applies only to retail and food service establishments with more than 500 employees, and San Francisco has singled out “formula retail” businesses, or chain stores with more than 11 locations worldwide.
Lawmakers in these jurisdictions have made a strategic decision to focus on large employers in the service industry, perhaps under the assumption that these employers are best situated for compliance. But there are early signs that this issue will have a broader impact on small and midsize employers.
A new ordinance in Emeryville, California, affects employers with more than 56 employees globally and 20 or more employees in city limits. New York City also passed a measure with various requirements applying to retail employers with 20 or more employees, as well as nationwide fast-food establishments.
The growth of predictive scheduling laws could prove challenging to employers, given the different requirements across jurisdictions. For example, Oregon’s bill pre-empts other local ordinances relating to work schedules, creating consistency within the state. But the same employers operating in Seattle, San Francisco, Emeryville and New York City must comply with different requirements.
These employers may create a universal policy by selecting the most restrictive requirements, or choose a more economical route by tailoring their approach to each geographic region. While some states have enacted legislation pre-empting any local government ordinance addressing employee work schedules, this does not relieve the obligation elsewhere.
Employers may get ahead of the trend by implementing changes to current scheduling practices. Technology and data could help employers find the most efficient scheduling practices, and some large employers are already using data to better predict how many employees are required to operate at any given time.
Despite the challenges, employers can find a way to make the most of predictive scheduling by using technology to better predict staffing needs.
Courtney Blanchard is a labor and employment attorney for large and multistate employers with Minneapolis-based Nilan Johnson Lewis. Comment below or email editors@workforce.com.
Small-business owners, pay attention. This update on the issue of joint employment will be one of the most important things you will read this year.
Joint employment has been on a bit of a roller coaster ride at the NLRB over the past few months.
I’m going to sort it all out for you and try to explain where we might be headed next.
What is Joint Employment?
Joint employment is the sharing of control and supervision of an employee’s activity among two or more business entities, such that each is liable for the legal wrongs of the other to its employees (e.g., discrimination, wage and hour, OSHA, unfair labor practices … ). It’s what would hold a franchisor liable for the wrongful acts of its franchisee, a contractor for its sub and a business for its staffing company.
What are the Historic Joint Employment Rules?
For decades prior to Aug. 27, 2015, it was uniformly established that for one entity to be a joint employer with another, it had to exercise direct and actual control over the terms and conditions of the other entities employees. Do they supervise? Are they subject to the same work rules? Can they hire, fire, and discipline? Who pays and how? Who provides benefits? Who assigns schedules and otherwise directs work? If one employer maintains control over these issues, then the other would not have been a joint employer.
Given this strict test, entities such as franchisors and general contractors felt reasonably comfortable that they were not liable for the acts of its franchisees and subs relative to their employees.
In Browning-Ferris, the NLRB ignored and tossed out 40 years of precedent and expanded the definition of “joint employer” not only to include those that exercise direct and actual control, but also those that exercise indirect control or reserve the potential to exercise control. OSHA and the DOL soon followed suit and announced similar standards under their respective statutes. Small business owners as well as other employers, (justifiably) panicked. If a franchisor, for example, is liable for the legal wrongs of its franchisees towards employees that the franchisor does not hire, fire, discipline, pay, or otherwise direct, why franchise at all? Why not just run the businesses, control the liabilities, and cut out the middle man?
In Hy-Brand, the NLRB expressly overruled Browning-Ferris and restored direct and actual control as the lone test for joint employment:
[W]e overrule Browning-Ferris and restore the joint-employer standard that existed prior to the Browning-Ferris decision. Thus, a finding of joint-employer status requires proof that the alleged joint-employer entities have actually exercised joint control over essential employment terms (rather than merely having “reserved” the right to exercise control), the control must be “direct and immediate” (rather than indirect), and joint-employer status will not result from control that is “limited and routine.”
Bravo. Employers rejoiced.
The Celebration was Short-Lived
On Feb. 26, 2018, the NLRB vacated Hy-Brand, restoring Browning-Ferris (and its potential/indirect control tests) as the law of the NLRA on joint employment.
Why?
Because current NLRB board member Bill Emanuel, one of the three votes in Hy-Brand in favor of overturning Browning-Ferris, was a partner at the law firm that represented Browning-Ferris in 2015. This decision followed the report of NLRB inspector general David Berry earlier this month, which concluded that Emanuel should have recused himself from Hy-Brand, not because Emanuel engaged in anything improper, but because the appearance of a potential conflict should have caused his recusal.
What Now?
For now, Browning-Ferris remains the law on joint employment under the NLRA. And, it likely will continue as such, as without Emanuel, the highly politicized NLRB will almost certainly split 2-2 on any rehearing of Hy-Brand.
Browing-Ferris had been pending on appeal and awaiting decision. The D.C. Circuit Court of Appeals, however, dismissed the appeal and remanded the case back the NLRB for disposition consistent with Hy-Brand. You should now expect more litigation over that issue in the D.C. Circuit.
As you can see, this issue is a muddled mess.
One easy solution is the federal (and bipartisan) Save Local Business Act. It expressly defines a “joint employer” under the NLRA and FLSA as one that —
directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over essential terms and conditions of employment, such as hiring employees, discharging employees, determining individual employee rates of pay and benefits, day-to-day supervision of employees, assigning individual work schedules, positions, and tasks, or administering employee discipline.
It passed the House last November, and now awaits action in the Senate.
This past summer, I asked if joint employment was the issue to unite our divided country. For the sake of America’s small-business owner, I certainly hope it does. If you are concerned about this issue (and you should be), call or email your Senator and Congressperson to urge their support of the Save Local Business Act.
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.
Patty McCord’s new book, “Powerful: Building a Culture of Freedom and Responsibility,” focuses on how the high-performing culture at Netflix was formed.
Patty McCord’s approach to HR culture in the workplace inspires some and sparks irritation in others. Her co-creation of the Netflix Culture Deck, a key onboarding document for companies, still follows her around, which is why she felt it needed an “instruction manual.”
Her book, “Powerful: Building a Culture of Freedom and Responsibility,” focuses on how the high-performing culture at Netflix was formed — advocating complete honesty and using challenges as motivation rather than incentives. Workforce intern Aysha Ashley Househ spoke to McCord about the difficulties of applying unconventional changes and what advice she has for employees who want to approach their bosses with this idea.
Workforce: What was the most difficult thing about applying the unconventional changes to HR?
Patty McCord: It happened gradually, and that’s the part that’s hard for me to explain to people. They think that either I woke up one morning, or Reed Hastings, the CEO of Netflix, woke up one morning and went, let’s undo everything. Let’s just topple it over. And that’s not how it worked.
We had worked together at another company and we just wanted to do it different this time. We wanted to make a place that we wanted to work at. One of the first things that we did that was really important was we wrote stuff down. So that was how the Netflix Culture Deck came about. We used it as an onboarding document. We value honesty. If we find that you’re spinning the truth then that’s not going to work here.
I remember when we decided that we were going to not have a time off policy. We were going to say, ‘Look we’re going to measure results, not whether or not you’re here.’ And if it turns out the way everyone tells us it will turn out then we’ll throw it away and go back to the way everybody else does it.
And the other thing was we were doing those things while we were making Netflix. We’re already inventing something that nobody else had ever done.
WF: What made you realize a change needed to be made in the work culture?
McCord: It was when I just started examining the why of what we did. If I said why do we do the annual performance review? What’s the purpose of it? Well, it’s to give people feedback on their performance. OK, does that mean constructive criticism, which is negative feedback — which nobody wants to give. Or is it giving you feedback: Wow you’re doing a great job, keep doing that. It wouldn’t be very effective to do either one of those things only once a year; it’s too infrequent. And people don’t get very good at it because they don’t practice it.
WF: Can you talk about some mistakes and what you learned from them?
McCord: Our marketing person came one time to a meeting and she said we’ve been counting subscriber growth as our only metric for success and the real metric for success is how long do you stay with the service. It’s a subscription service, right? She’s like, so we’ve been measuring the wrong thing. We should’ve been measuring retention rather than growth. And I looked at the CEO and I said good thing we didn’t bonus her for growth. She’s the one that said we’ve been measuring the wrong thing. And that was because she was a high performing employee who was looking at the right thing for the customer, not how to make her bonus.
WF: What is one thing you want people to take away from the book?
McCord: The idea of questioning what you do. And being able to have a good, logical answer to why. When I talk with big corporations I say I’m OK if you decide the way you’ve always done it is terrific and it works really great at your company. Just decide. Don’t just do it because you’ve always done it. Do it because you’ve decided that it works. One other thing that I wanted us to do, particularly as HR people, is to stop speaking a language no one understands. It makes us sound out of touch.
WF: One of your main points is to motivate people through a challenge instead of using incentives. What made you realize this is the solution Netflix needed?
McCord: I started thinking about the bonus system. We were moving so fast that I honestly couldn’t come up with an annual bonus plan because I couldn’t figure out what needed to get done right at the end of the year, and I could be 50 percent wrong because we were inventing things as we went along. I spent my whole life around bonus plans. And I found that the time it took to write them, to communicate them, to administer them and to re-jigger them every time, was time that was wasted that we could’ve been getting the work done. If I said I want to fill the company with high performing employees who are really talented and get great work done on time, then why do I have to bonus them for it? They’re already going to do it anyway.
WF: You mention that this is defying convention and it was scary to do that. What made you take that risk?
McCord: It worked. And it was the people I was surrounded by. They were taking risks all the time. They’re experimenting all the time. And that’s how we created a service that I’m sure you love. Because we kept taking risks and experimenting with it.
WF: How did you convince your managers to allow for these practices?
McCord: Well, since we created the idea with the CEO and the other executive vice presidents, we didn’t have to do much convincing. Early on as we started to experiment, I remember someone saying, ‘You know, you and Reed should grow up and forget this idea of utopian workforce and start acting like a grown-up corporation. Those of us from real companies are waiting for you to do that.’ And I remember sitting down with her saying what you’re hoping for quite possibly won’t ever happen, we’re probably the wrong company for you.
WF: Then what advice do you have for people who need to convince their management?
McCord: Start small and come up with a business reason for doing it. And use business metrics. The annual performance review takes 100 percent of our employee base and an entire month to administrate. So you take the total payroll dollars, divide by 12, take one month’s worth, and say that costs us this much. And my hypothesis is if we did it in smaller increments over time, that we might yield better results. Can we carve off a group of people to experiment with it? And then look at results. So, you need to speak in a business language, you have to start with what you think the outcome will be, and then it’s not a whole fail overhaul. It’s just one thing at a time. And it’s as much about what you stop doing as what you start doing.
WF: Did you have any input in the TV shows created?
McCord: No, in fact that story in the book [‘Orange is the New Black’] from Ted is when I interviewed him for my book and I’d been gone for five years. But no, the people that owned the making of the content would be making those decisions. I wouldn’t have put any input into that. It wasn’t my job.
WF: I have to ask: What’s your favorite show on NetFlix?
McCord: If you ask me in a month I’ll tell you something different. As dorky as it is, I just finished up ‘Grace and Frankie’s new season because I wanted to make sure I had some quiet time to watch it. I’ve been binging a lot because I travel internationally, so I download a whole season and watch it from beginning to end. I did ‘Godless’ on my way back from Australia. I love the quirky stuff. My daughter and I just watched ‘BoJack Horseman’ over and over again for like … look at the magazine in the back of her car, it’s Cosmopolitan!
Aysha Ashley Househ is a Workforce intern. Comment below or email editors@workforce.com.
Raef Lawson worked as a restaurant delivery driver for online food delivery service Grubhub for four months in late 2015 and early 2016. He claimed that the company misclassified him as an independent contractor and owed him overtime for hours he worked over 40 in any workweek.
Last week, in Lawson v. Grubhub [pdf], a California federal judge granted the gig-employer a huge victory by ruling that Lawson and all other similarly situated drivers are independent contractors and not employees.
The court found that Grubhub lacked the necessary control over the driver’s work for him to be considered an employee.
In California (as in Ohio, most other states, and under current federal law) the test to determine whether a worker is an employee or an independent contractor is whether the business has “the right to control the manner and means of accomplishing the result desired.”
The judge found that Grubhub did not exercise sufficient control, as it:
Exercised little control over how Lawson made his deliveries, not interfering with his choice of vehicle;
Didn’t control his appearance, require him to wear a special uniform, or meet any appearance standards;
Lacked required training or orientation;
Imposed no limits in passengers in the vehicles during working hours;
Didn’t control, whether, and for how long, a driver works;
Allowed drivers to cancel their shifts at any time without penalty or consequences; and
Prepared no performance evaluations.
And while one cannot understate the significance for employers of the first federal court opinion to hold that a gig worker is an independent contractor and not an employee, perhaps the most important aspect of the opinion is Magistrate Judge Jacqueline Scott Corley’s call to legislative arms to address this issue:
[W]hether an individual performing services for another is an employee or an independent contractor is an all-or-nothing proposition. If Mr. Lawson is an employee, he has rights to minimum wage, overtime, expense reimbursement and workers compensation benefits. If he is not, he gets none. With the advent of the gig economy, and the creation of a low wage workforce performing low skill but highly flexible episodic jobs, the legislature may want to address this stark dichotomy. In the meantime the Court must answer the question one way or the other.
In other words, the gig economy is not going away and will only increase in importance. As the number of gig workers increases, what will our government do to protect their pay, their benefits, their safety and their civil rights? Because if they are independent contractors, they enjoy almost no protections under the current state of the law.
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.
Earlier this summer, Microsoft announced plans to lay off workers as part of a restructuring to focus on cloud services. A month later Nike made a second round of layoffs, which included hundreds of IT staff, with warnings of more cuts to come.
Big layoffs remain a painful part corporate culture despite being eight years past the Great Recession. It’s also a world where success is based on quarterly results and rapidly shifting markets can make products and people obsolete.
Layoffs may be inevitable, but how companies handle them can make or break their ability to rebuild, said Kevin Martin, chief research officer for the Institute for Corporate Productivity, or I4CP, a human capital research firm.
“Any time you introduce fear, uncertainty or doubt into an organization it kills performance,” Martin said.
Unless companies take measures to actively support those who remain, the losses can be devastating to more than just the people let go.
Managing morale in the wake of a layoff begins with good communication, said Larry Sternberg, president of Talent Plus, an HR consulting firm in Lincoln, Nebraska and co-author of “Managing to Make a Difference.” “Secrecy is one of the biggest mistakes companies make.”
Sternberg recalls being invited to give an inspirational speech to a group of employees at a high-end Miami resort several years ago. When he arrived, the leadership team told him that many of the group was about to be laid off, but no one knew.
“They were afraid they would start looking for new jobs before the end of the season,” Sternberg said.
Disagreeing with their approach, he kicked off his speech by announcing the layoff, then spent the next hour talking about what the company and its remaining employees could do to make sure that it never happened again.
It may seem like a smart move to keep layoff plans secret, but not being honest leads to morale-killing gossip, suspicion and fear. For companies hoping to rebuild with the talent they have left that’s a big problem. Instead, Martin encourages companies to be upfront about who is being laid off and why, then to provide them with support to find new jobs.
“It’s important to help people leave with dignity,” he said. “That speaks volumes to those who remain.”
Make Them Want to Stay
Once a layoff is done, executives need to find ways to empower and engage employees while shoring up the business.
Talent development is a good way to address both of these needs, Martin said. He points to Ally Financial, which was forced to lay off 7,000 of its 30,000 employees during the economic crisis. To engage its remaining staff, the company offered high performers a fast track to leadership roles and stretch assignments where they could develop new skills. “Ally gave them opportunities and responsibilities they couldn’t get anywhere else so early in their careers,” he said.
Giving employees authority to make decisions can also help, Sternberg said. He recalls working with hotelier Ritz-Carlton on how to reduce staff while maintaining excellent customer services. His solution: When departments lose an employee due to attrition, let them choose whether the fill that role or distribute the work — and half of that employee’s salary — among the remaining team.
“Several teams took the deal, and customer service never suffered,” he said. The deal motivated them to find their own ways to be more efficient.
Sarah Fister Gale is a writer based in the Chicago area. Comment below or email editors@workforce.com. FollowWorkforceon Twitter at@workforcenews.
“How is the National Labor Relations Board like the weather?”
“I don’t know, Jon, how?”
“If you don’t like either, just wait and they’ll change.”
[groan]
Not my best material, I know. But, it does illustrate an important point, driven home by an Advice Memo [pdf] just released by the NLRB Office of General Counsel on the issue of Weingarten rights for non-union employees.
In NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that employees covered by a collective bargaining agreement may request the presence of a union representative during an investigatory interview that the employee reasonably believes may result in disciplinary action. In the 42 years hence, the board has vacillated on the issue of whether Weingarten rights also extend to non-union employees.
For example, in 2000, in Epilepsy Foundation of Northeast Ohio [pdf], the Clinton-era board found that employees in non-union settings have Weingarten rights to a coworker representative during investigatory interviews. More recently, however, the Bush-era board, in IBM Corp., concluded the exact opposite, that, in light of certain policy considerations, the board would no longer find that employees in non-union workplaces have the right to a coworker representative.
Which brings us to September 2017, and the NLRB Office of General Counsel’s aforementioned advice memo.
We conclude that the … Board … extend Weingarten rights to unrepresented employees and find that the Employer violated Section 8(a)(1) by forcing one employee to submit to an investigatory interview without the assistance of a coworker and by forcing another employee to submit to an investigatory interview in the presence of an anti-Union employee witness unilaterally designated by the Employer.
Practically speaking, this call for action will mean little to nothing. Richard Griffin, the Obama-appointed NLRB General Counsel, only serves until his term expires on Nov. 4, 2017. Thereafter, President Trump will appoint a new NLRB General Counsel, presumably one who will have a more management-friendly view of federal labor laws (including the non-expansion of Weingarten rights to non-union employees).
Nevertheless, this advice memo is a solid reminder of how our federal administrative agencies can, and often do, sway in the political breezes.
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.
Do you require medical exams of applicants before they start working for you? If so, do you know the rules that the ADA requires you follow?
Last month, the EEOC settled a lawsuit it brought against a Florida staffing firm for alleged unlawful pre-employment medical exams under the ADA, which serves as a good reminder for employers of these rules.
According to the lawsuit, the firm asked applicants to complete a paper application package with a detailed medical questionnaire — including sensitive health information and included numerous disability-related questions — before the company offered the applicant a position or placement.
This settlement is good reminder that the ADA has strict rules regulating when an employer can, and cannot, ask individuals for medical information prior to the start of employment.
The ADA applies a traffic-light approach to employer-mandated medical exams.
Red Light(prior to an offer of employment): the ADA prohibits all disability-related inquiries and medical examinations, even those that a job related.
Yellow Light(after employment begins): an employer only may make disability-related inquiries and require medical examinations that are job-related and consistent with business necessity.
Green Light(after an applicant is given a conditional job offer, but before s/he starts work): an employer may make any disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.
Pay attention to state laws, as well. For example, Ohio prohibits an employer from shifting the cost of any pre-employment medical exam to an employee: “No employer shall require any prospective employee or applicant for employment to pay the cost of a medical examination required by the employer as a condition of employment.”
According to EEOC Regional Attorney Robert Weisberg, “Congress recognized that prohibiting pre-offer medical inquiries was necessary to prevent applicants from being subjected to harmful and unfounded stereotypes on the basis of an actual or perceived disability.”Further, “As staffing agencies now play a large role in our nation’s workforce, eliminating any discrimination in their screening practices is increasingly important to ensuring that workers with disabilities have equal access to work opportunities.”
Sage advice.
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.
According to a recent survey conducted by OfficeTeam, on average, employees spend eight hours per workweek on nonwork activities.
What does this non-work time look like?
Personal emails: 30 percent
Social networks: 28 percent
Sports sites: 8 percent
Mobile games: 6 percent
Online shopping: 5 percent
Entertainment sites: 3 percent
Moreover, try as they might to regulate this activity, employers fail. The same survey reports that 58 percent of employees simply use their personal mobile devices at work to access websites blocked by their employers — a 36-point jump from OfficeTeam’s last survey in 2012.
So, what is an employer to do? I say embrace the distraction. As I’ve long argued:
Employers that try regulate personal social media use out of the workplace are fighting a Sisyphean battle. I call it the iPhone-ification of the American workforce. No matter your policy trying to regulate or outright ban social media in your workplace, if your employees can take their smartphones out of their pockets to circumvent the policy, how can you possibly police workplace social media access? Why have a policy you cannot police and enforce?
Instead of regulating an issue you cannot hope to control, treat employees’ use of social media for what it is—a performance issue. If an employee is not performing up to standards because he or she is spending too much time on the internet, then address the performance problem. Counsel, discipline, and ultimately terminate if the performance does not improve. A slacking employee, however, will not become a star performer just because you limit his or her social media access; he or she will just find another way to slack off. Instead of wasting your resources to fight a battle you cannot win, reapportion them to win battles worth fighting.
We ask so much of our employees. The 9-to-5 is no longer relevant. If my employee, who is giving up night and weekends for me, wants to spends a few minutes during the workday posting to Facebook, or checking the score of last night’s game, or buying something on Amazon, I just don’t care (unless you are working in a safety-sensitive position, and then why the hell are you on your phone at all‽), unless and until it reaches the level of distraction and impacts performance. Then, however, we are treating the performance problem, not the technology problem, which is the appropriate and practical solution.
So, how much wasted work-time is too much? To me, the answer is only when it hinders performance. Otherwise, I say read your Game of Thrones recaps and post those cute back-to-school photos of your kids (did I just divulge too much?)
The Glassdoor “SWAT” team she led resulted in Kronos’ debut on the Glassdoor Best Places to Work list. She also planned and later implemented an unlimited vacation policy for the company. “That was a pretty exciting project to work on,” she said. “Especially to have been working on it for a couple of years, then actually being able to be a part of when we were ready to move forward.”
