As an employer of nearly 2 million civilian workers, the federal government has a repository of workforce management material to guide its own agencies. Here’s a link to Office of Personnel Management handbooks and guides that you may be able to adapt to your workplace.
Gun Possession and Employer Rights Under State Laws
On April 10, Florida approved a bill that prevents employers from asking workers if they carry guns in their cars, from searching employee vehicles, from taking action against workers for possessing guns in locked vehicles, and from conditioning employment on whether a job applicant holds a “concealed-carry” gun permit.
The Florida Retail Federation, the Florida Chamber of Commerce and other business groups challenged the law, asserting that it was unconstitutional because it violated the Occupational Safety and Health Act by endangering workers and because it forced property owners to make their property available for unsupported purposes. The business groups sought a preliminary injunction in the U.S. District Court for the Northern District of Florida.
Denying in part and granting in part the preliminary injunction, the district court refused to block the law’s provisions that limit an employer’s right to ask an employee about the presence of a gun in his or her car at work, search employee vehicles for guns, or condition employment on whether an applicant holds a “concealed-carry” permit.
The district court found that the law was not an unconstitutional taking because the law did not affect an employer’s right to continue to operate a business. The only change created by the law was that “if a business chooses to provide parking, the business may not keep guns from being secured in a vehicle.” Florida Retail Fed’n Inc. v. Attorney General of Fla., N.D. Fla., No. 4:08-CV-179-RH/WCS, preliminary injunction (7/28/08).
Impact:Several states have laws that protect the right of individuals to possess guns at work. In this case—at least in Florida—employers are advised to follow an unofficial “don’t ask, don’t tell” policy concerning whether an employee has a gun in a locked vehicle at work.
Workforce Management, September 8, 2008, p. 19 — Subscribe Now!
TOOL Establishing a Program for Nursing Mothers
HR executives at many large corporations may have a nursing mother’s program in place or simply want to know how they can make improvements. Here’s a link to the U.S. Office of Personnel Management’s package of tools that you might be able to adapt to your workplace. Among them are details about why breastfeeding is beneficial, how to establish a successful lactation program at the office (“A room that provides privacy is most important”) and a list of organizations that can provide additional information.
TOOL Health Benefits and the Department of Labor
The U.S. Department of Labor’s Office of Compliance Assistance Policy offers a wealth of tools for HR executives who need to know everything about employee benefit plans, HIPAA, COBRA, record-keeping, changes in health care law and more. Click here to get started.
10-Plus Tips for Succeeding in an EEOC Mediation Part One
Many professional workplace mediators have said that for every 50 employees there’s one who is a simmering pot. A simmering-pot is a person whose resentment is at a low boil. Simmering-pot employees have turned off, left the organization prematurely, sabotaged their companies or gone out on extended stress leaves. Some of these pots, if left unattended, will become the people who file charges with the Equal Employment Opportunity Commission, alleging discrimination. The best goal for your organization is to stay out of the EEOC process, and mediation can help you do that. But if a charge has been filed and you’re before the EEOC, consider these tips on how to prepare for success in a mediation. In part two of this article, I’ll suggest some tips for the EEOC mediation itself, as well as some ideas for steering clear of problems in the future.
Tip One: Don’t ignore the simmering pot.
A recent workplace dispute demonstrates this point. It’s a classic example of a simmering pot who was handled “properly,” but the handling did not address the employee’s underlying concerns. The result was that the employee filed an EEOC charge anyway.
In this situation, Max, a man in his late 40s, had been working for a private company for five years. The employer treated Max well, and even provided a flexible work schedule to allow him to take care of his sick grandmother. The event that led Max to file the EEOC charge occurred in a meeting he had with his female supervisor. Max alleged his supervisor intimidated him, and he felt scared. The human resources manager addressed the problem “properly,” by investigating the harassment charges against the supervisor, moving Max to a separate office away from the supervisor and assigning him to a different supervisor. But after the incident was handled, Max showed all the signs of someone about to file an EEOC charge: He went out on stress leave, filed a workers’ compensation claim and did not show up for work. The employer responded with all the appropriate notifications to Max, and documented all of the incidents, but never offered to meet with Max and his supervisor together to encourage them to discuss the incident. Eventually, Max filed an EEOC charge.
When I heard that this simmering pot had landed on the EEOC’s doorstep, I was not surprised. Although the employer had made all the proper legal decisions, Max had not been given the opportunity to vent except in the form of a written complaint. I believe he needed to feel heard by people who mattered at his organization, and mediation is one of the best forums for doing this. Of course, there are no guarantees that mediation would have resolved the issues Max had with his supervisor.
Tip Two: Honestly ask yourself whether you really have a workplace dispute ‘covered.’
In the case of Max, the employer did not have the situation “covered,” despite a belief to the contrary. I believe the employer failed to recognize the importance of the emotional component of Max’s situation as it went about trying to resolve the dispute. The employer’s focus was clearly too narrow, and the window of opportunity to resolve the situation without EEOC involvement closed. Had the employer initially addressed this problem more broadly, it might have gone away, or at least the employer could have explored negotiating a separation package with Max, which might have benefited everyone involved.
But once the EEOC charge was filed in Max’s case, the amount of time, energy and resources that had to be devoted to defensive negative actions was far greater than if the heat had been turned down on the simmering pot sooner. Even though the EEOC did offer the employer the option to mediate the charge, the actual time frame to resolve the situation was five times longer than if it had been addressed several months before. And as in most of cases involving employees who still work for the organization, Max sabotaged his employer by engaging other employees in the drama. Some of them had unresolved issues with the organization.
Often when I talk to managers in HR, equal employment opportunity or employee relations, they tell me they have their employee problems “covered.” They frequently ask me, “How can a mediator provide services that are different from the ones we are offering the employee?” It’s hard for me, as a professional mediator with a degree in conflict resolution and more than 500 EEOC mediations to my credit, to answer this and not sound as if I’m selling my services.
But the fact is, most savvy employees don’t trust HR, equal employment opportunity or employee relations managers. They’re seen as representatives of the employer. Additionally, most HR and equal employment opportunity managers are used to coaching employees separately, rather than meeting with both the employee and the manager, CEO or other company representative whom the employee sees as the problem. One of the reasons mediation is so successful at resolving workplace disputes is because the parties are in the same room guided by an experienced, neutral third party. When both parties are present, the issues that led to the conflict are much easier to spot. A seasoned mediator will make the parties feel safe enough to reveal the underlying issues. Without getting to those deeper issues, the conflict will likely return.
Tip Three: Consider hiring a neutral third-party mediator to work through the issues.
Given the factors I’ve outlined here, one of the safest and most productive ways to resolve a matter like this is to work with an outside contracted mediator. The benefit of a contracted mediation option is that an individual outside the company may be more trusted. A professional mediator’s specialty is working with parties face to face to help them understand ways to better work together. The mediator’s only agenda is helping both parties resolve the issues.
The employer who finds himself at the EEOC is likely to feel frustrated about having to spend the time and resources either to mediate the charge or to go through the EEOC’s investigative process. The employer is also probably asking himself, “Did we miss some of the early warning signs of trouble from this individual?” Most workplace disputes that result in the filing of an EEOC charge don’t spring out of thin air. They’ve been building for a while.
Although this may sound like I’m blaming the employer, this is not my intention. I am not saying anything about the discrimination charge that has been filed, but many of these alleged cases of discrimination involve deeper issues, such as communication problems or an employee’s feeling of being disrespected. These may be totally unrelated to any form of discrimination. If these underlying issues are not addressed, the workplace problems that will surface may affect the entire organization in a destructive manner. So it’s crucial to try to spot the trouble sooner rather than later, and not to assume it will go away by dealing with it at only the surface level.
Most people aren’t comfortable handling conflict. As one HR director said to me, “We like to think we can handle it ourselves and are reluctant to ask for outside help.” That’s dangerous thinking. Everyone needs help and advice in resolving workplace disputes, and the smartest people know that asking for help can actually be a sign of effective management. Remember that conflict is inevitable in the workplace, and it can actually be positive if it’s addressed before too much damage has occurred.
Finally, consider the time and expense involved in the EEOC process. According to the Federal Daily, the EEOC’s case backlog has swelled while its workforce has shrunk. In its 2007 enforcement and litigation scorecard, the EEOC noted that it had received 82,792 private-sector charge filings—its highest volume since 2002. It makes sense to steer clear of that overloaded, understaffed system if you can.
Tip Four: Understand that EEOC mediators want the employer to bring a substantive offer to the table.
Many EEOC mediators are pressured to resolve a certain number of cases, and that usually means the mediator will try to have the employer offer the employee some monetary compensation to persuade the employee to withdraw the charge. Many mediators at the EEOC will figure out whether you are bringing some consideration to the table prior to convincing you to attend mediation. If you decline to bring consideration, the mediator may guide you toward the investigative process. That is unfortunate, since employers should not be required to bring a checkbook to the EEOC, but in many cities, this indirect screening process is the unwritten law of the land.
Tip Five: Consider whether to bring counsel to the mediation.
Let’s move forward and assume you have opted to participate in the EEOC’s mediation process, if that has been offered to you. If you haven’t already spoken to your organization’s attorney, I would suggest calling counsel as soon as possible. Attorneys often want to be present with their clients, and since many employers are intimidated by the EEOC process, they frequently lean toward believing they “need” attorneys there to survive the process. If you believe you may have trouble containing yourself, an attorney may serve as an excellent buffer.
There are several advantages to having counsel present for the mediation. An attorney will help you understand your legal rights, evaluate any liability you may have, make sure you don’t give away the store and generally make you feel more secure and comfortable.
However, there are also several disadvantages: First, once you elect to bring counsel, the employee will be more likely to also want to have an attorney there. Additionally, with counsel present, the employee may feel more guarded, and that can make the process more formal. Once an employee brings counsel, someone needs to pay the attorney, and you’ll be the funding source.
Some of the most productive mediations I’ve been involved in were the least formal, without any counsel present. In those cases, the parties struggled with the discomfort. That forced them to communicate with each other, which led the parties to address some of the core issues of the conflict. Some attorneys, in their efforts to represent your interests, may discourage you from speaking to the employee directly. They may prefer to have the mediator shuttle between the parties, rather than staying in an ongoing dialogue with the employee. I cannot stress enough the importance of this kind of dialogue for reaching a meaningful resolution of the issues, especially with an employee who is still working for you.
Unfortunately, the typical EEOC mediation arena does not encourage this kind of open dialogue. Most EEOC mediators are encouraged to conduct a legal settlement process, in order to accommodate the attorneys. Attorneys frequently believe a controlled process protects your interests, and in certain circumstances that can be true. But in other cases, that control makes for a more stilted process and escalates the tension. That translates into higher costs for you.
No matter what you decide about the presence of your attorney, it is definitely to your benefit to have at least one or two key people from the company attend so that the employee thinks his charge is important enough for a company leader to have taken a day away from work to listen to him.
The second part of this article will offer tips on how to succeed during the EEOC mediation.
Workforce Management Online, September 2008 —Register Now!
Is Your Defined-Contribution Plan Leaking
Very often, 401(k) plans are referred to as nest eggs. For some plan participants, however, they are more like sieves—money flows in, but then flows right out the other end.
This issue was recently brought into the limelight with the controversy over 401(k) plan debit cards. These cards provide participants with easy access to 401(k) loans, and were dubbed a “gross distortion” of the intent of 401(k) plans at a July 2008 hearing by the Senate Special Committee on Aging.
Although 401(k) plan debit cards are not widely used, they do symbolize a valid concern: What is the point of increasing participation in 401(k) plans through automatic enrollment, automatic escalation and the like if the monies simply leak out?
As David John and Mark Iwry of the Retirement Security Project put it at the hearing, “It won’t matter how tightly we lock the front door of the barn if the horses are free to run out the back.”
The reality is, though, when it comes to 401(k) plan leakage, loans may be a relative trickle. A Transamerica Retirement Services survey finds that loan utilization has increased in the past few years, but less than one in five participants have loans outstanding. Almost all participants who take out loans repay them. And according to Hewitt Associates, among those with loans, the average outstanding loan balance is $7,800.
What causes that trickle to become more of a torrent is what happens after employees leave their companies. Often, when this occurs, nearly half of them simply take their 401(k) assets in the form of cash. The number is much higher—66 percent—for younger employees, according to Hewitt Associates.
Now consider that figures from the Department of Labor put the median job tenure for workers ages 25 to 34 at less than three years. This creates the specter of many people reaching their 40s with little retirement savings—despite perhaps having actually participated in their defined-contribution plans for a number of years thanks to being automatically enrolled.
Among those who do preserve their retirement savings, many participants roll their money into an individual retirement account versus leaving their money in the 401(k) plan or rolling it over into another 401(k) plan.
Internal Revenue Service data shows that rollovers to IRAs from employer-sponsored plans are the main source of new cash flowing into IRAs. Yet the fees associated with retail mutual funds typically used within IRAs can be significantly higher than that within 401(k) plans.
Consider a participant who has access to an institutionally priced S&P 500 index fund within a 401(k) plan that costs as little as 2.5 basis points per year. The average retail S&P 500 index fund’s expense ratio exceeds 60 basis points. Compounded over time, such a wide differential in fees can have a tremendous impact on retirement accumulation.
Why should plan sponsors care? After all, is it really their responsibility to ensure the retirement income security of people who are no longer in their employ? Further, do they really wish to have fiduciary oversight over former employees’ assets?
Some plan sponsors will care because the defined-contribution plan is the only retirement-income vehicle that they provide to employees. The idea of former employees marching toward old age without any employer-provided retirement benefits may be very much at odds with employers’ goals in offering a defined-contribution plan in the first place.
Other plan sponsors may recognize that it can be in the best interest of both current and former employees to encourage terminated and retired workers to stay in the plan. After all, increased plan assets mean greater economies of scale that could translate into reduced plan fees, better access to institutional money managers and even improved administrative services.
What can plan sponsors do to keep people in the 401(k) plan once they are no longer with the company? One thing is to emphasize the benefits of the 401(k) plan throughout the tenure of an employee’s career.
When employees leave or retire, plan sponsors may wish to reinforce these messages, with a view to countering the barrage of propaganda from IRA providers. Plan sponsors may even want to consider features that may make the 401(k) plan more attractive to former employees (and current employees as well).
For example, some online tools can simplify participants’ financial lives by providing an aggregate view of all of their investment accounts (including outside brokerage accounts) through the defined-contribution plan’s Web site.
Other tools include drawdown technology, which provides a way for retirees to receive a “paycheck” from their defined-contribution account. Periodic payments are made from the participants’ account to the participant on a regular basis, based on employees’ needs in retirement, and the balance available in their account—all of which the drawdown tool calculates.
Finally, if the plan simply allows partial distributions, this in itself may broaden the plan’s appeal.
Even if plan sponsors do not wish to actively retain former employees in the 401(k) plan, they can do much to help them avoid cashing out at termination. This might include providing them with statements showing how much they would have at retirement, even for the smallest of balances.
Plan sponsors could provide employees with calculations that show the impact of taxes and penalties on withdrawn amounts. Further, more and more record keepers support “one-click” rollovers by having the record-keeping system connect directly with the systems of rollover providers. This can greatly streamline the often onerous rollover process, which itself can be an obstacle to rolling over plan balances. Again, any communication should start early, and should be reinforced when an employee leaves the organization.
The weakened economy, higher oil prices and increasing foreclosures mean that 401(k) plan assets are more vulnerable than ever to leakage. Although there’s no widespread evidence that a run on 401(k) plan assets is occurring, certainly there are pockets of real concern. This has clearly caught the attention of regulators, who are already taking steps to plug up the holes.
When it comes to helping employees maintain assets for retirement, what sounds like employer paternalism today may well turn out to be a requirement in the future.
Workforce Management Online, September 2008 — Register Now!
Environmental-Jobs Market Has Bloomed
When Stephen Bell graduated with a degree in environmental management from the University of Rhode Island in 1993, he hoped to follow the earth-friendly path he had cultivated during a childhood of wandering Rhode Island’s red maple swamps.
But environmental jobs were few and far between, they paid poorly, and they were so fringe as to be risky. So Bell dabbled in environmental education for a year, then moved to Chicago to earn a master’s in art education from the School of the Art Institute of Chicago.
That led him to jobs in education, visitor services and operations with the Field Museum and the Peggy Notebaert Nature Museum, then to the Chicago Center for Green Technology, a city-owned facility that offers public education and demonstration programs.
It wasn’t until January, however, that Bell found the job with his name written all over it: the newly created post of director of sustainable operations at the Chicago Botanic Garden in Glencoe, Illinois.
There, Bell discovered a new generation of environmentally minded interns who won’t be traveling the circuitous career route that he did.
“These interns have a completely different background. They’re architects, land-use planners and policymakers. They are actually planning their careers around sustainability, which is a much different job environment than I came from,” he says.
Careers that used to be niche are now mainstream, says Andrew Horning, who manages the business-science master’s program at the University of Michigan.
“Companies have realized there’s a real business opportunity there,” he says.
Now that he’s found his dream job, Bell hasn’t wasted any time, especially since he’s building a sustainability operation from scratch.
Before hiring Bell, the garden did an environmental audit, which he has used as a baseline to develop long-term goals, drawing input from staff and thinking hard about the garden as a role model.
As the garden staff begin a $100 million project to expand into a world-class plant-conservation research center, CEO Sophia Siskel says it’s their responsibility to “embrace sustainability” and encourage the public to do the same.
First came the easy stuff: switching food-service tableware from plastic to biodegradable materials, adjusting heating and cooling temperatures by a few degrees and ending the sale of bottled water at the garden to cut down on plastics waste. Soon they’ll install low-flow aerators on the garden’s faucets.
What’s next will take more time, including writing grants and raising funds. But Bell plans, among other things, to improve building efficiency and use green standards for new construction. He also intends to make the garden cafe a venue for local organic food and to trade the garden’s old fleet vehicles and lawn equipment for alternative-energy models.
“This isn’t a fad,” Bell says. “There is no ‘green team’ here, no six or seven people whose responsibility it is to take greening seriously. Sustainability needs to be incorporated into everybody’s job description.”
Hes LEEDing the Way
Two years ago, Gary Hardy would have told you green was the color of money and grass, and that’s about it. Then he went back to school.
Hardy, 51, is a senior project superintendent at Leopardo Construction Inc. in Hoffman Estates, Illinois.
When his boss, general superintendent George Tuhowski, mentioned a new building energy technologies certificate being offered at Wilbur Wright College in Chicago, a light bulb (compact fluorescent, of course) went off.
“I knew this was the wave of the future,” Hardy says, citing the city’s green roofs and green-building policies, as well as its 2016 Olympics bid, which, if successful, would spark a construction frenzy. “I wanted to become a leader.”
Hardy, who joined Leopardo in 2003 after almost 30 years in carpentry and construction, began the program in fall 2006 and graduated in December.
For three semesters, he took two evening classes a week, writing weekly essays and spending some Saturdays visiting wind farms and buildings renovated or constructed using U.S. Green Building Council standards. Courses covered energy efficiency, as well as energy and environmental mechanical systems, certifications and maintenance.
With that training under his belt, Hardy plans this summer to become accredited in the principles of the council’s ’Leadership in Energy and Environmental Design, which governs green construction practices and ratings.
Eleven of Leopardo’s project managers and engineers and one vice president are accredited under the program referred to as LEED, but Hardy would be the first among the company’s 50 superintendents to earn accreditation.
“It’s nice, being in construction, to know where you’re going a week from now and to not worry about being laid off,” he says.
David Inman, project manager for the building energy technologies program at Wilbur Wright, says LEED accreditation is a particular boost for workers in Chicago because so many green projects are in the works.
“If we were doing this anywhere other than Chicago, we might not emphasize LEED as much,” he said.
Leopardo began doing LEED projects in 2005, and as interest has grown, so has that side of its business. Tuhowski, the company’s general superintendent, estimates that green jobs will account for more than 20 percent of Leopardo’s $300 million in revenue this year.
Employee LEED accreditation “gives us the upper hand when we bid,” he says.
Current projects include several green roofs and a 195,000-square-foot, $70 million public-safety campus in Aurora that will be LEED-certified.
This fall, Hardy will be supervising a LEED-certified, 40,000-square-foot project for Harris Alternatives LLC, a hedge fund investment firm.
“Everybody wants to be green,” he says. “It’s a great selling feature for any business.”
Maybe even his own someday. Hardy and his wife have five acres in Vail, Arizona, where he’s itching to build a green house.
He would also like to open a division of Leopardo Construction there, perhaps in three years or so. Just long enough to make some more green.
Tool Guides From the Office of Personnel Management
As an employer of nearly 2 million civilian workers, the federal government has a repository of workforce management material to guide its own agencies. Here’s a link to Office of Personnel Management handbooks and guides that you may be able to adapt to your workplace.
To comment, e-mail editors@workforce.com.
Workforce Management Online, September 2008 — Register Now!
Jobs of the Future A New Green World
Except for the handful of do-gooder roles held by an idealistic few, environmental jobs used to be all about regulatory compliance. No more.
Thanks to the likes of former Vice President Al Gore, rapidly mobilizing consumers and the very real threat of legislation limiting carbon emissions, businesses are seeing the environmental benefit and the financial sense of giving a hoot.
It’s a green new world, and it needs employees—lots of them.
In the U.S., 5.3 million jobs have been created by environmental management and protection, according to a 2006 study by Management Information Services Inc., a Washington, D.C., research firm that has been tracking green jobs for two decades.
Those jobs include such titles as chief sustainability officer, solar-panel installer and software engineer, on top of more traditional environmental careers in wastewater treatment and hazardous materials management.
Those workers already make up a sizable part of the economy. The 5.3 million figure is almost half the number of people employed by hospitals, and nearly a third of the number in construction. It’s 10 times the number of jobs in the pharmaceutical industry.
By 2010, green employment is expected to reach 5.8 million jobs; by 2020, 6.9 million. Meanwhile, corresponding green-industry sales—including energy suppliers and consumer-products makers—are predicted to climb from $341 billion to $496 billion in 2020.
A green-collar town
In Chicago, the swelling ranks have inspired the creation of a green-jobs initiative, as well as new programs at area schools including Wilbur Wright College and the Illinois Institute of Technology.
“I have more internship and job opportunities than I have students to fill them,” says George Nassos, director of the environmental management master’s program at the institute’s Stuart School of Business, which has been training students in pollution prevention and compliance since 1995 and sustainability since 1999.
“When we introduced sustainability to the curriculum, nobody cared,” says Nassos, whose students find work in corporate environmental policy, consulting, health and safety, and with accounting and law firms that have sustainability practices. “But in the last six months, students are starting to get jobs because of that.”
It’s the same story at Wilbur Wright, a community college that has offered an associate’s degree in environmental technology since 1994. In fall 2006, the college used a state grant to add an emphasis on building energy technology and sustainability, covering topics such as natural resource conservation and renewable heating sources.
Graduates now go on to work as chief building engineers, demolition supervisors, construction superintendents and building managers, or in trades such as carpentry and heavy equipment operation.
“Before we even finished the pilot, it had gotten so popular that we had to offer it again, not on scholarship but for tuition,” program director Victoria Cooper says.
The implications
In September, Wilbur Wright joined a coalition of businesses, organizations and labor groups to form the Chicagoland Green Collar Jobs Initiative, which this summer will try to quantify Chicago’s green workforce, as well as assess job training programs and college curricula to see if the demand can be met.
“We’re asking, ‘Is this really a change in the economy?’ and ‘What are the job implications of that change?’ ” says Ted Wysocki, CEO of the Local Economic and Employment Development Council, a jobs-creation group involved in the initiative.
As with a growing number of similar efforts nationwide, the Chicago group wants to know whether green jobs offer more—and better—opportunities for blue-collar workers.
Raquel Pinderhughes, a professor of urban studies at San Francisco State University, thinks they do.
Pinderhughes, who studies barriers to employment, has identified 22 economic sectors with green-collar opportunities, including food production (using organic agriculture), manufacturing (making energy-efficient and recycled products) and auto repair (servicing alternative-fuel vehicles).
She says green-collar jobs aren’t a rebranding of blue-collar trades. Rather, they are safer, typically higher-paying jobs that are “community-serving and meaningful, which resonates very deeply with people on the street.”
In San Francisco, for example, a low-skilled worker doing food prep or grounds maintenance might make $21,000 a year. A similarly skilled solar installer or recycling worker can make $35,000.
Kevin Doyle, a consultant whose Boston business, Green Economy, advises companies and organizations on green-jobs development, says that even traditional manual-labor jobs—say, in construction or building maintenance—can be improved by adding green skills.
“In the process, workers will change how they measure success in their careers away from just earning a living, and toward building a more sustainable world,” he says.