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Category: Staffing Management

Posted on December 7, 2016June 29, 2023

7 Tips to Avoid the Holiday Party Nightmare

Jon Hyman The Practical Employer

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

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

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

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

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

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

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

Cheers, be safe, and enjoy your holiday celebrations.

Posted on December 7, 2016October 18, 2024

Old School Diversity Doesn’t Work; New School Diversity Does

If 2016 brought us anything, it’s the death of the status quo. If 2016 has taught us anything, it’s that those of us who have a progressive vision for the workplace — and humanity in general — must change our tactics. Evolutionary leaders committed to increasing diversity, equity and inclusiveness in American workplaces aren’t exempt. Nothing less than a safe, abundant and mutually prosperous future is at stake.WF_WebSite_BlogHeaders-12

One tactic that needs to change is how we think, speak, and act around diversity and inclusiveness. Voices that have been emboldened by President-elect Donald Trump, plus a series of articles published this summer in the Harvard Business Review, are the most recent jury that’s delivered a landmark verdict: “Old school” diversity approaches don’t work.

“Old School” Diversity doesn’t work because it:

  • Focuses primarily on what I call “the Skittles Approach” — increasing the numbers of underrepresented groups (especially people of color) to create a more colorful rainbow.
  • Defines no clear, meaningful goals or specific outcomes (beyond changing racial or gender demographics).
  • Conducts its main activities around compliance with various laws, regulations and industry- specific requirements.
  • Outside of compliance, is mainly motivated by social justice values, or a desire to look good or “do the right thing.”
  • Can have a “charity” feel since it’s oriented toward helping members of certain groups — usually historically marginalized groups like women, people of color, LGBT and/or people with disabilities.
  • Includes an often unspoken belief that investing in diversity and inclusion means sacrificing quality and excellence.
  • Promotes initiatives owned solely by one area or department (typically HR or a dedicated diversity office).
  • Promotes initiatives with no accountability and limited power to effect meaningful change.
  • Pays little to no attention to developing leaders or creating a great culture.
  • Involves training that provides awareness and knowledge, but no skill building or clear, actionable takeaways.
  • Explores the cultural or intercultural dynamics of human difference devoid of power relationships.

However, “new school” diversity does work, because it:

  • Focuses on attracting more members of strategic underrepresented groups plus creating an inclusive culture where everyone can bring their brilliance and excellence to work (and without which diversity alone can impede progress and diminish results).
  • Defines measurable outcomes that are mission critical.
  • Conducts its main activities around reducing the unintended effects of individual and systemic biases; developing leaders’ ability to make effective, equitable decisions; and creating an inclusive culture where brilliance and excellence thrive.
  • Is mainly motivated by meaningful, high-stakes business goals which either solve an existing pressing problem or take the organization from good to great.
  • Recognizes and demonstrates that a diverse, inclusive environment includes and benefits everyone.
  • Understands and leverages the extensive research showing diversity plus inclusion increase quality and excellence.
  • Requires that diversity and inclusiveness results be owned by senior leaders in all areas including finance.
  • Holds all leaders and employees accountable for diversity results and inclusive behaviors.
  • Views developing effective leaders and creating a great culture as top priorities for senior leaders, and acted on as integral to the organization’s success.
  • Involves training that provides skill building and clear, actionable takeaways that are reinforced and hardwired in daily operations.
  • Explores and navigates the cultural and intercultural dynamics of human difference within the context of unequal power relationships in the organization and society at large

Management guru W. Edwards Deming once said, “Learning is not compulsory. Neither is survival.” To survive we must adapt to new information and new realities.

Just as it’s clear (in dozens of studies) that New School Diversity works, it’s clear the Old School way has outlived its usefulness, and we must evolve. Courageous leaders and visionary organizations are already evolving, and leveraging the brilliance and excellence unleashed by a commitment to New School Diversity.

Are you ready to join them? Share your success stories and questions below, and let me know how I can help you get there! #NewSchoolDandI.

Susana Rinderle is president of Susana Rinderle Consulting and a trainer, coach, speaker, author and diversity & inclusion expert. Comment below or email editors@workforce.com

Posted on November 28, 2016June 29, 2023

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

Jon Hyman The Practical Employer

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

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

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

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

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

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

I am big believer in open internet access (within reason). I advocate for fewer restrictions for personal internet use at work (including Cyber Monday shopping) for two reasons: it provides a nice benefit to employees, whom we ask to sacrifice more and more personal time; and it’s almost impossible to police anyway.
We no longer live in a 40-hour a week, 9-to-5 world. Employees sacrifice more and more of their personal time for the sake of their employers. Thus, why not offer some internet flexibility both to recognize this sacrifice and to engage employees as a retention tool?
Moreover, it is becoming increasingly difficult for employers to control what their employees are doing online during the work day. Even if an employer monitors or blocks internet traffic on its network, all an employee has to do to circumnavigate these controls is take out his or her smartphone (which the CareerBuilder survey shows more employees are doing anyway). By trying to control employees’ internet habits, employers are fighting a battle they cannot win. The smartphone has irreparably tilted the field in favor of employees. It not worth the time or effort to fight a battle you cannot win.
Instead of fighting a losing battle by policing restrictive policies, I suggest that employers treat this issue not as a technology problem to control, but a performance problem to correct. If an employees is otherwise performing at an acceptable level, there is no harm is letting him or her shop online from work, on Cyber Monday or on regular Wednesday. But, if an employee is not performing, and you can trace that lack of performance to internet distractions or overuse, then treat the performance problem with counseling, discipline, and, as a last resort, termination. Just like you wouldn’t bring a knife to a gun fight, don’t bring a technology solution to a performance problem.
As for me, I did most of my online shopping over the weekend. So, it’s back to work for me.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Posted on September 15, 2016June 29, 2023

NLRB Is Now Basically Creating Unfair Labor Practices Out of Thin Air

Jon Hyman The Practical Employer

Those that have been readers for awhile know of my dislike of the NLRB’s expansion of its doctrine of protected concerted activity (e.g., here and here).

The latest on the NLRB’s hit list: employee mis-classifications. The NLRB has concluded that an employer has committed an unfair labor practice and violated an employee’s section 7 rights by (mis)classifying its employees as independent contractors. Or so was the board’s conclusion in its recently published General Counsel Advice Memorandum [pdf].WF_WebSite_BlogHeaders-11

The case involved drivers for a drayage company, whom the company classified as independent contractors. The company opposed a union’s efforts to organize the drivers on the ground that they were not employees covered by the National Labor Relations Act. Even after the NLRB determined that the purported contractors were employees subject to organizing, the employer still refused to re-classify them as employees.

In response, the NLRB Office of General Counsel concluded “that the Region should issue a Section 8(a)(1) complaint alleging that the Employer’s misclassification of its employees as independent contractors interfered with and restrained employees in the exercise of their Section 7 rights.” On the one hand, the GC’s decision makes some sense. If the NLRB determines that you have intentionally mis-classified employees with the specific intent of avoiding a union, then you have likely interfered with the rights of those employees to organize.

Yet, the GC’s decision goes well beyond the facts of the case, and concludes that even a “preemptive strike” in advance of any organizing campaign violates employees’ section 7 rights.

The Employer’s misclassification suppresses future Section 7 activity by imparting to its employees that they do not possess Section 7 rights in the first place. The Employer’s misclassification works as a preemptive strike, to chill its employees from exercising their rights under the Act during a period of critical importance to its employees—the Union’s organizing campaign.

Employers, thanks to the NLRB, your risk of employee mis-classifications (which is already sky high) just increased. Get ready to start fighting a two-front war against your independent contractors. Savvy plaintiffs’ lawyers simultaneously will file the FLSA lawsuit in federal court and, based on this Advice Memorandum, the unfair labor practice charge with the NLRB. Since an NLRB charge typically moves faster than a federal wage/hour lawsuit, expect the (unfavorable) Board decision first, and expect your contractors to argue the conclusive and binding effect of that decision in the FLSA lawsuit.

The NLRB is wading into uncharted and dangerous waters — creating an unfair labor practice out an alleged wage/hour violation. Moving forward, expect the employee friendly NLRB, and not federal judges, to decide whether you have classified your workers properly. This development is decidedly not to your benefit.

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.

Posted on September 6, 2016June 29, 2023

The ADA and Prescription Meds: What You Need to Know

Jon Hyman The Practical Employer
Can an employer include prescription medications in its drug screening of job applicants and employees? Here’s a good lawyer answer for you: It depends.
Last week, the EEOC announced that it had sued an Arizona car dealership for disability discrimination after it rescinded a job offer when a pre-employment drug test revealed a prescription drug used to treat a disability.WF_WebSite_BlogHeaders-11

According to EEOC’s lawsuit, Bell-Arrow Automotive, Inc. (doing business as Bell Lexus), a subsidiary of Bell Leasing, Inc. (doing business as The Berge Group), maintained a policy of refusing to employ any applicant who tested positive for one of several enumerated substances on a list identi­fied by Bell Lexus and the Berge Group. Bell Lexus extended a job offer to Sara Thorholm to work as product specialist or a salesperson, but rescinded it when her drug test returned positive for a single substance. Thorholm explained to Bell Lexus that the substance was legally prescribed to treat a disability and would not affect her ability to perform the duties of the job. Bell Lexus refused both Thorholm’s offer of proof and her offer to change medications.

The EEOC contends that the employer violated the ADA by maintaining a “blanket exclusion policy” for certain prescription medications, and refusing to consider an exception to its drug testing policy as a reasonable accommodation. Indeed, according to the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA, in most cases an employer cannot even ask about prescription drugs:

Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat. For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. A fire department, however, could not require fire department employees who perform only administrative duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.

In other words, it is the rare case in which an employer is justified in asking about prescription meds, or disqualifying from employment one who tests positive.

How is an employer supposed to to maintain a safe workplace in light of these limitations? Here are four thoughts.

  1. Blanket prohibitions are illegal. The ADA imposes on employer an obligation to make individualized inquiries about implications such as reasonable accommodations and direct threats. A blanket prohibition against on-the-job use of prescriptions medications violates this obligation.
  2. Drug testing. Drug testing programs can include legally prescribed drugs. An employer cannot, however, have a blanket policy excluding from employment any employee testing positive for a prescribed drug. Instead, following a positive test, the employer should ask if the employee is taking any prescribed drugs that would explain the positive result.
  3. Drug-free workplace policies. It is permissible to include prescription drugs in drug-free workplace policies. These policies can require employees to disclose prescription drugs that may adversely affect judgment, coordination, or the ability to perform job duties. After disclosure, an employer must, on a case-by-case basis determine whether it can make a reasonable accommodation that will enable the individual to remain employed.
  4. Post-disclosure handling. After an employer learns that an employee is taking a prescription drug that may affect job performance, it should request a medical certification regarding the effect of the medication on the ability safely to perform essential job functions. That certification will enable the employer to engage the employee in the interactive process and making the individualized determination of whether a reasonable accommodation is even possible.

“What about medical marijuana,” you ask? How do these ADA concerns impact its impending legality? I’ll have more to say about this in a future post, but, most of the courts that have examined the issue of workplace drug testing for states in which medical marijuana is legal have concluded that the ADA does not protect medical marijuana because the drug remains illegal under federal law.

Stay tuned, however, as the issue of medical marijuana under the ADA is nuanced and certainly developing and subject to change.

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.

Posted on September 5, 2016June 29, 2023

Welcome to Staffing the Human Cloud

Forget software as a service; human capital as a service is the hottest trend in staffing today, with a vast segment of the workforce choosing work-on-demand options over full-time employment.

“It is the economy of the human cloud,” said Barry Asin, president of Staffing Industry Analysts, a global advisory service in Mountain View, California.

Asin isn’t just talking about Uber and Lyft drivers, though they are a part of this trend. The human cloud is also full of contractors, consultants, freelancers and subject matter experts who are seeking new models of employment for a variety of reasons. Some do it to bolster their traditional income with after-hours gigs, while others do it full time because they can earn more money or achieve greater control over their work life. Still, many contractors find themselves in these roles because it’s the best option they have, especially as companies begin to see the value of bolstering their full-time workforce with contract staff.

Regardless of the reason, their ranks are growing. Contingent workers make up 53 million people, or 34 percent of the American workforce according to a survey commissioned by Freelancers Union and Elance-oDesk. And as more professionals flock to contract positions, staffing industry companies are expanding their offerings to better meet the needs of clients.

Online Platforms Fill the Gap

Responding to this shift, many traditional staffing agencies are building or partnering with online platforms that specifically link companies with contractors to manage and complete contingent work arrangements. This area of the staffing industry has grown rapidly in recently years, with dozens of sites now available, including upwork.com, freelancer.com, and Proworkers, as well as many industry-specific and specialty sites, such as UpCounsel for lawyers, Toptal for software developers and ShiftPixy for hospitality industry shift workers.

“The migration of this niche part of the industry to the internet has made it much easier for contingent workers to participate in the gig economy,” said Teresa Carroll, senior vice president of talent solutions for KellyOCG, the outsourcing and consulting group of Kelly Services in Troy, Michigan. It has also enabled more workers to make the transition from full-time to freelance.

These online matching sites are still a small trend in the broader staffing economy, but the trend is growing. According to Staffing Industry Analysts data, 4 percent of Fortune 1000 companies used online platformsHotList to hire contingent labor in 2014, but that rose to 11 percent in 2015 with another 5 percent considering the tools within the next two years.

The most innovative staffing firms see this growing trend as an opportunity to find new ways to bring talent to their clients. For KellyOCG, that means partnering with a dozen online communities, including Upwork, Work Market, and most recently Elevate Direct in the U.K. Other staffing companies are acquiring innovative online start-ups to fill their contract labor gaps. Earlier this year Monster acquired the San Francisco based start-up Jobr, which offers a job-finding app that the company described as “Tinder for jobs”; ManpowerGroup acquired Ciber Inc., the Dutch IT solutions and staffing provider, to improve its global IT staffing capabilities; and Randstad acquired twago, a European freelance marketplace where companies can create client-branded freelance recruitment platforms that can be integrated with their vendor management system.

Legal Concerns Drive Caution

Staffing firms are also working more closely with clients in an advisory role to help them figure out how to best take advantage of contingent labor trends, and to make sure their choices align with business and legal goals. “Companies have all sorts of questions and concerns about compliance risk when using these platforms,” Asin said, noting that larger companies are especially cautious about working with contractors, and are turning to staffing firms for guidance.

It’s a smart move, especially as policymakers begin to explore what the gig economy means from a legal and economic standpoint, and how they may adapt statutes to create a social safety net for these workers, said Richard Wahlquist, CEO of the American Staffing Association. In a recent ASA survey, one of the leading issues keeping executives up at night is their concern about labor employment law and where their liability begins and ends when working with staffing firms. “People have a lot of questions about their legal obligations to temp workers,” he said. And as they introduce more temporary and project labor into their workplace, they increase the risk of introducing non-compliant practices into the organization.

It isn’t always easy to decipher obligation, he said. For example, with the Affordable Care Act, the staffing firm is responsible for handling all employee insurance issues, but for laws related to Occupational Safety and Health Administration requirements and equal opportunity hiring, the client is responsible for providing a safe work environment that is free from discrimination.

“These rules all extend to a flexible labor force and you have to be aware of your obligation to these workers,” Wahlquist said. The Department of Labor is paying closer attention to compliance issues related to temp workers and recently released a series of guidance documents as part of its Temporary Worker Initiative, specifically focused on compliance with safety and health requirements when temporary workers are employed under the joint (or dual) employment of a staffing agency and a host employer.

“I think the majority of noncompliance that we see is people just not getting what the law is, and what their responsibilities are under it,” Department of Labor Wage and Hour Division Administrator David Weil said in an interview with The Washington Post. “We also find cases of people who are clearly playing games and clearly trying to shift out responsibility, and often have structured things in a way that lead toward more noncompliance.”

WF_0916_DatabankWhen companies fail to meet the needs of these contract workers it can backfire. In May of this year, for example, OSHA cited Cooper University Hospital in Camden, New Jersey, for failing to fit temporary workers with proper respirators or provide training on protocols related to exposures to blood and other potentially infectious materials. The hospital faces $55,000 in penalties.

Concerns about legal issues link to a broader shift in the staffing industry where larger companies are looking to their vendors for more than just workers. “They want advice and analytics that will help them better manage their overall talent equation,” said Carroll. This demand for consulting services is being driven by a number of trends, including interest in using more contingent labor, internal pressures to reduce the time and cost of hiring, and the inability of big companies to keep up with technology innovations used to find and track talent. “They realize they can’t be the best at everything, so they are turning to service providers to fill the gaps,” she said.

In response, staffing firms are working with clients much earlier in their decision-making process. In some cases, they are working with clients months in advance of a project to determine what types of talent they need, whether those hires should be full time or temporary, and how to manage the compliance issues related to these decisions, said Paul McDonald, senior executive director for Robert Half International in Los Angeles. “They want us involved in these conversations from the planning stage to advise them on what choices will help them execute their plan.”

Many firms are also expanding their data mining and workforce analytics offerings to give companies greater insight into which types of talent deliver the greatest benefits for different types of projects or positions, and how to attract this talent to their brand. Some staffing companies are building out these services from within, while others are acquiring analytics expertise. For example, Protiviti Inc., Robert Half International’s consulting division, recently acquired the assets of Decision First Technologies, a business intelligence and SAP solutions provider.

Supply Still the Biggest Challenge

For all the hoopla around gig workers, most staffing agencies continue to say their biggest challenge is finding qualified talent to fill their pipeline. “The impact of the skill gap and declining labor force is a constant burden for recruiters trying to fill talent needs, whether they are in-house recruiters or outside firms,” Wahlquist said.

McDonald agrees. He noted that while overall unemployment is at a comfortable 4.7 percent rate, specific professional sectors, including finance, tech, legal and accounting are much lower. “For certain IT roles the unemployment rates are less than 1 percent,” he said. “Demand is dramatically outstripping supply.” Even though enrollment in engineering and related fields is rising, McDonald doesn’t expect to see much relief in the years to come. “The pace of technology and demand for talent is moving faster than these programs can deliver graduates.”

In response, companies like Robert Half are trying to ramp up the recruiting side of their services, and developing mobile applications that enable swift — but vetted — matches between candidates and clients. “Speed is critical in this field, though you can’t skip the thoroughness of the review process. That’s where misfires happen.”

The need for speed won’t go away any time soon, and staffing firms will continue to face pressures to expand their reach and make it easier for talented laborers to find work through their recruiting services and online platforms. That means offering transparent and efficient tools, like mobile sign up and interviews via Skype to make the process speedy and efficient, McDonald said. “It has to be quick and easy for candidates and clients, or they will go elsewhere.”

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

Posted on August 31, 2016June 29, 2023

Did the NLRB Do More Harm Than Good By Permitting Teaching and Research Assistants to Organize?

Jon Hyman The Practical Employer
Last week, in Trustees of Columbia University [pdf], the National Labor Relations Board upended decades of precedent by holding that federal labor law covers graduate and undergraduate teaching assistants, and graduate research assistants.
This case has received widespread national coverage (such as here and here). It is academically and politically interesting, and worth your time to read even if your business doesn’t involve academia. Moreover, the board’s willingness to so easily depart from such well established precedent should be troubling to all employers.
The aspect of the decision I want to focus on in Member Miscimarra’s dissent, specifically his argument that because of the NLRB’s recent super-expansion of the doctrine of protected concerted activity, this decision will harm the very students it intends to protect.
  • Non-Confidential Investigations. If your son or daughter is sexually harassed by a student assistant and an investigation by the university ensues, the university will violate federal law (the NLRA) if it routinely asks other student-assistant witnesses to keep confidential what is discussed during the university’s investigation.
  • Witness Statement Disclosure. In the above example, witness statements submitted by your son or daughter about sexual harassment by a student assistant must be disclosed to the union, unless (i) the university can prove that the statement’s submission was conditioned on confidentiality, and (ii) even then, the statement must be disclosed unless the university can prove tWF_WebSite_BlogHeaders-11hat your son or daughter needs protection, or other circumstances outweigh the union’s need for the witness statement.
  • Invalidating Rules Promoting Civility. The university will be found to have violated the NLRA if it requires student assistants to maintain “harmonious interactions and relationships” with other students.
  • Invalidating Rules Barring Profanity and Abuse. The university cannot adopt a policy against “loud, abusive or foul language” or “false, vicious, profane or malicious statements” by student assistants.
  • Outrageous Conduct by Student Assistants. The university must permit student assistants to have angry confrontations with university officials in grievance discussions, and the student assistant cannot be lawfully disciplined or removed from his or her position even if he or she repeatedly screams, “I can say anything I want,” “I can swear if I want,” and “I can do anything I want, and you can’t stop me.”
  • Outrageous Social Media Postings by Student Assistants. If a student assistant objects to actions by a professor-supervisor named “Bob,” the university must permit the student to post a message on Facebook stating: “Bob is such a nasty mother fucker, don’t know how to talk to people. Fuck his mother and his entire fucking family.”
  • Disrespect and Profanity Directed to Faculty Supervisors. The university may not take action against a student assistant who screams at a professor-supervisor and calls him a “fucking crook,” a “fucking mother fucking” and an “asshole” when the student assistant is complaining about the treatment of student assistants.
The dissent concludes:

It is also a mistake to assume that today’s decision relates only to the creation of collective-bargaining rights. Our statute involves wide-ranging requirements and obligations.… Therefore, parents take heed: if you send your teenage sons or daughters to college, the Board majority’s decision today will affect their “college experience”….

The above examples constitute a small sampling of the unfortunate consequences that will predictably follow from the majority’s decision to apply our statute to student assistants at colleges and universities. The primary purpose of a university is to educate students, and the Board should not disregard that purpose in finding that student assistants are employees and therefore subject to all provisions of the NLRA.

I could not agree more.

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.

Posted on May 24, 2016July 26, 2018

Does Zappos Have a Self-Management Problem?

Posted on April 27, 2016July 30, 2018

Sabotage in the Workplace Is an Inside Job

Human resources professionals hear a lot behind closed doors from people at all levels of an organization.

So it’s a fair guess that HR pros have the best view of overall culture and the various subcultures that exist in certain departments. HR leaders know when groups of employees are motivated and when they’re not; they know when a worker’s presence and personality is raising the bar for others and getting them excited about work.

They also know when someone’s performance or attitude is acting as a drag and likely possess excellent techniques to accentuate the positives and curb the negatives.

And they also know that there are times when departments underperform even when the team is sincere, hard-working employees with the company’s best interests at heart. People may complain to one another and to HR that decisions aren’t being made well, that they can’t seem to get their work done on time and that the department as a whole isn’t as productive as it should be. Yet no one can pinpoint the problem.

The Obedient Saboteur

Many organizations employ what is known as the “obedient saboteur.”

Let’s use Michael as an example. He is talking to a potential (and potentially important) client who wants him to change several stipulations in a proposed contract. Michael thinks the request is reasonable and has done his research, and he knows he can sell this client many add-on services down the line.

He wants to approve the changes but can’t. The rules say his boss has to sign off, and his boss is away. So he explains the situation and says he will get back to the potential client.

But that client has to select the winning bid by the end of the day. Michael isn’t able to respond until tomorrow and loses the deal.

Companies love employees like Michael — people who do what they’re supposed to do all the time. They keep things running smoothly and predictably.

But the obedient saboteur prevents personal judgment from overriding processes — like waiting on a supervisor’s approval at the expense of winning an important new contract — that for whatever reason are not working at the moment.

—Bob Frisch, Rob Galford and Cary Greene

That’s when you need to suspect simple sabotage: People behaving in ways that look good, sound logical and seem smart but in fact are slowly undermining everyone’s best efforts.

We’re not talking about people pretending to be good employees but deliberately working under the radar to gum up the works. We’re talking about people who genuinely believe they are doing the right things (and who, for all intents and purposes, look as if they’re doing the right things) but are hurting your organization’s performance.

Simple sabotage exists in one form or another in every organization, and it’s like a virus piggybacking on normally benign activities as it spreads. Left unchecked, it can hurt a company from the inside every bit as much as an unexpected competitor or market shift can from the outside. HR professionals need to be able to recognize its existence, spread the word and offer the organization ways to identify it, call it out (without placing blame), deal with it and prevent it. HR leaders have one of the most effective vantage points for rooting it out. The company’s health is at stake.

How We Learned About Simple Sabotage

We didn’t begin focusing on how good employees — even excellent ones — can unintentionally damage an organization until co-author Bob Frisch discovered a declassified U.S. government document produced in 1944 titled “Simple Sabotage Field Manual.” Written under the auspices of Gen. William “Wild Bill” Donovan at the height of World War II, the manual presented a wide variety of easily executed sabotage tactics; it was printed in several languages and smuggled behind enemy lines to Allied supporters.

Much of the manual was focused on physical acts of sabotage — slashing tires, starting fires with piles of oily rags and short-circuiting electrical systems. But a section was devoted to causing trouble in offices without getting caught, specifically by slowing down or even stalling decision-making processes, taking meetings off-track and generally weakening the enemy’s organizational infrastructure under the guise of good or even exemplary behavior.

These tactics were devastatingly destructive, and as Frisch read through them, he was struck by the notion that the same acts of sabotage were likely in widespread use today. In fact, he suspected unintentional acts of “simple sabotage” identical to the ones listed in the manual were probably acting as a corrosive agent in many if  not most organizations.

We conducted a survey and interviewed dozens of senior executives. Our research confirmed Frisch’s thinking: Simple sabotage has the potential to run rampant and wreak havoc in any organization.

The Tactics

The Office of Strategic Services, a U.S. wartime intelligence agency, identified eight such behaviors in the section of the “Simple Sabotage” manual dedicated to organizations:

  1. “Insist on doing everything through ‘channels.’ Never permit shortcuts to be taken in order to expedite decisions.”
  2. “Make ‘speeches.’ Talk as frequently as possible and at great length. Illustrate your ‘points’ by long anecdotes and accounts of personal experiences. Never hesitate to make a few appropriate ‘patriotic’ comments.”
  3. “When possible, refer all matters to committees for ‘further study and consideration.’ Attempt to make the committees as large as possible — never less than five.”
  4. “Bring up irrelevant issues as frequently as possible.”
  5. “Haggle over precise wordings of communications, minutes, resolutions.”
  6. “Refer back to matters decided upon at the last meeting and attempt to reopen the question of the advisability of that decision.”
  7. “Advocate ‘caution.’ Be ‘reasonable’ and urge your fellow conferees to ‘be reasonable’ and avoid haste which might result in embarrassments or difficulties later on.”
  8. “Be worried about the propriety of any decision — raise the question of whether such action as is contemplated lies within the jurisdiction of the group or whether it might conflict with the policy of some higher echelon.”

Most HR pros can recognize some of them. They may think they can identify the culprits and stamp out inadvertent sabotage easily. But is that really possible?

Take for example the tactic about bringing up irrelevant issues. HR leaders may be able to name the people who are known for their ability to inject random or personal stories into any conversation. But these people aren’t the saboteurs. They’re easy to spot, and usually easy to shut down. (“Steve, we would love to hear about your chicken coop, but now’s not the time. Let’s move on.”)

Sabotage occurs in this case when the issue being raised seems to be relevant. The saboteurs think that what they’re saying is relevant, and their earnestness only helps make their case. They are engaging in good behavior, but taking the discussion at hand way off track.

Here’s an example. When someone says, “Let’s learn from others’ mistakes,” they’re about to make a comparison between what the team is dealing with now and what another team has dealt with (incorrectly) in the past. The problem is that too often the people who raise such comparisons are putting apples against oranges.

Say there is planning for the annual retreat. HR has scheduled a meeting to brainstorm breakout sessions. It starts well, but then a colleague brings up a very poorly run industry conference that several people in the room recently attended.

Left unchecked, simple sabotage can hurt a company from the inside every bit as much as an unexpected competitor or market shift can from the outside.

The group starts talking about that event, with attendees explaining how confused they were trying to find certain breakout sessions because of poor signage, how hard it was to hear speakers because of loud events taking place in rooms separated only by dividers, and how difficult it was to network at mealtimes because of the large numbers of people from other conferences using the same facility.

Doing a post-mortem on someone else’s actions is interesting, and so people, including the HR leader, engage with vigor. Soon 20 minutes goes by. The task at hand isn’t accomplished in the time allotted, so there’s a need to reschedule.

No one feels badly though because the group has raised several potential issues about the venue to discuss with the people who are arranging the location and logistics. And no one stops to think about whether the people arranging location and logistics need that input to begin with.

Another common way to commit sabotage by irrelevance? Bring up a burning issue. Usually, the inadvertent saboteur in this case believes they’re going to save the day by raising a topic that is critically important.

They might walk into a meeting about the company’s loyalty program and say something like, “I just saw the results of our survey about customer service and we have a problem that we need to talk about now.”

Maybe customer service is in shambles, but are the right people in the room to talk about it and make decisions about what’s to be done? Probably not. Meanwhile, what about the loyalty program?

Multiply these two instances by the eight tactics, then by the dozens (or hundreds or thousands of meetings or communications) that occur across an organization on a daily basis and it’s clear how insidious and pervasive simple sabotage can be.

Simple sabotage in some form is hurting organizations. Because of its nature — and human nature — it always will be. But savvy HR leaders can fight effectively against it and minimize its effects. Recognizing it is the first step.

Robert M. Galford, Bob Frisch and Cary Greene are co-authors of “Simple Sabotage: A Modern Field Manual for Detecting and Rooting Out Everyday Behaviors That Undermine Your Workplace.” Galford is managing partner of the Center for Leading Organizations; Frisch is the managing partner and Greene is a partner of the Strategic Offsites Group. Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.

Posted on March 28, 2016September 5, 2023

Prep for Fads: From Holacracy to Continuous Feedback

As with anything else, fads in HR come and go — but in this case so could employees if employers don’t plan ahead before implementing a new policy.

In early 2014 Tony Hsieh, CEO of Zappos.com, introduced holacracy to the online shoe and clothing retailer. Holacracy removes power from a management hierarchy and distributes authority and decision-making across self-organizing teams with clear roles instead. It’s a decision that has received a mixture of praise and controversy.

To ensure the move was accepted companywide, Hsieh gave his 1,500 employees two options: adopt holacracy or take a generous severance package and leave the company. A sizable 18 percent of the company’s employees chose to take the severance package, resulting in 30 percent total turnover in 2015 — a rate 10 percent higher than the company’s annual turnover the previous two years.

While 2016’s business results will say more about whether Zappos’ big change is a success, not every company can afford to wait until the end of the year to see how its bold human resources move will play out. Fortunately, there is a better way to assess which talent programs are worth investing in — and it starts by taking a scientific approach to HR.

Get Intelligent About Your Workforce

Prior to adopting the latest HR fad, it is important to take stock of what is going on in your organization. Using analytics from the outset provides you with data that can help inform your organization. (Editor’s note: The author works for Canadian software company Visier Inc.)

Begin by determining what workforce problems exist within your company, and take care to identify patterns and trends in your data. Workforce intelligence software can make it easier to sift through all the information so you can drill deep into what’s going on across the organization, in key business units and with individual team members. This step is necessary to help you find areas to focus your efforts.

For example, you may notice that turnover has increased this year, but instead of assuming you have a retention problem, you look deeper into the data and discover that most resignations are occurring in a certain department. This could indicate that there is an issue with that team’s manager and save you from implementing an organizationwide program that would have done little to stem turnover.

If we examine our Zappos case study, how could a data-driven approach have enabled the HR team to predict the impact of holacracy before it was deployed?

Since turnover has been a key metric in this case, this would be a likely place to start focusing. By pulling workforce data from all available human resources information system sources, HR can identify key or top talent that are at risk of resigning because of the organizational change, and then take the necessary steps to retain those individuals.

Furthermore, this information can be used to create highly accurate workforce plans that show the total costs of implementing holacracy for various scenarios, such as with and without turnover. Some workforce intelligence software can make workforce planning a more seamless and collaborative process, but the importance here is that you have a process that prepares you for a range of outcomes ahead of time.

Vexed by Vacations

Another hot HR topic is the unlimited vacation policy adopted by companies such as General Electric Co., Netflix and Virgin Group. The debate is over whether such an open-ended policy could discourage productivity — even though some organizations have reported that employees took the same amount of time off as before and performed just as well. Which camp could your company fall into if you were to pursue this program?

First, you need to assess what your paid-time-off situation looks like today. Is everyone taking all their vacation days? If so, are they still showing high absenteeism or resignation rates?

Second, use the data you’ve gathered to determine what problem requires fixing. If burned-out employees are simply not taking time off, you can investigate why this is occurring as it might indicate that their workload doesn’t allow them to go on vacation. However, if you discover that overworked staff are maxing out their days off and still showing signs of high stress, it could be a sign that your vacation policy needs an overhaul so employees can get the proper rest needed to perform their best.

Performance Reviews

With over 30 large companies getting rid of their annual performance reviews in favor of alternative systems, such as year-round and continuous feedback meetings, this is a fad that may encourage others to make it a best practice. However, the reality is that it doesn’t matter if your company does away with performance reviews as long as a program is put in place that monitors performance.

In order for a data-driven approach to accurately guide your talent decisions, you need a complete picture of your workforce — and performance is a critical metric. Its value lies in connecting how well an employee is doing with other workforce dynamics such as compensation and promotion as well as ensuring that you are being equitable with how rewards are distributed to everyone in the organization.

As you gather evidence to support your next bold talent policy move, remember that the key to success is not to copy the latest HR fad. Gaining maximum returns from program investments requires you to tap into what will uniquely work for the employees who make the most impact on your business outcomes. Retaining and hiring these people is what matters — and with the right data and an analytical mindset, this will become much easier to do.

Ian Cook is director of product management at Visier Inc., a workforce analytics company. To comment, email editors@workforce.com.

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