2018 EEOC Report Shows Spike in Sexual Harassment Charges

In fiscal year 2018 the EEOC saw an increase in sexual harassment charges over 2017 numbers.  The EEOC filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment.  These preliminary numbers reflect more than a 50% increase in suits challenging sexual harassment over fiscal year 2017.  As a result, the agency has put a new emphasis on anti-harassment efforts, focusing on training and enforcement of anti-discrimination laws.

The numbers:  The EEOC recovered almost $70 million for sexual harassment claims in fiscal year 2018.  This is an increase from $47.5 million in fiscal year 2017.

"The EEOC's innovative training program "Respectful Workplaces," which teaches skills for employees and supervisors to promote and contribute to respect in the workplace, was in high demand since it was launched in October 2017.  Over 9,000 employees and supervisors in the private, public and federal sector work forces participated in Respectful Workplaces trainings this past fiscal year.   An additional 13,000 employees participated in the EEOC's anti-harassment compliance trainings."

Cathy Ventrell-Monsees, a senior attorney adviser to the chair of the EEOC, stated that sexual charges increase and decrease in response to major national events.  Early reports reflect that #MeToo may be one of those events prompting a spike in claims.

In closing, never turn a blind eye to potential or actual acts of harassment in your organization.  Be proactive.  Address the situation.  Alternatively you may find yourself on the receiving end of an EEOC claim.

"Ban the Box" Laws

Some employment applications have that pesky little box that screams "check me if you have a criminal conviction!"   Research has found that this one little question may automatically and unfairly eliminate some applicants from the hiring process.

When the box is checked, applicants are often immediately rejected for a prior offense that may have no bearing on the job or is so old that it's not relevant.  If the applicant doesn't check it and the employer runs a background check, he or she may be disqualified because they lied on the application.  The applicant is between a rock and a hard place.

While some Ban the Box laws apply only to public employers, it is quickly expanding to private businesses.  Six states (Hawaii, Illinois, Massachusetts, Minnesota, New Jersey and Rhode Island) have passed laws that require private employers to remove any conviction-related question from job applications.   While each Ban the Box law is different, they all address when the criminal history question may be asked, what types of convictions can be asked about, how far back an inquiry may extend and what, if any, exceptions apply. 

In 2012, the EEOC recommended - as a best practice for all employers - removing criminal history questions from job applications, reserving such questions until later in the hiring process (such as after an in-person interview or after a contingent offer).  The EEOC guidance requires the employer to demonstrate that the criminal records restrictions are directly related to the job and that the applicants are individually assessed for the position.

Whether such a proposal becomes a law in Texas remains to be seen.  In the interim, follow EEOC guidelines with respect to your hiring process.   As an employer, we need to remember that these convictions or arrests may not accurately represent who the applicant is today.

Working Families Flexibility Act (H.R.1406)

(Not to be confused with the Flexibility For Working Families Act)

Over heavy opposition by the Democrats, a hotly debated bill was passed May 8th by House Republicans that will potentially loosen federal overtime laws.  The bill would amend long-standing labor laws (the 75 year old FLSA) by allowing private-sector employers to offer compensatory time off in lieu of time-and-a-half pay for overtime.  (The protections under FLSA were put in place to prevent employers from abusing the system and avoiding paying overtime to workers who put in more than 40 hours per week.)

The supporters of the bill have pitched it as an update to federal law, with the obligatory fluff that "it's about helping working moms and dads, providing the ability to commit time at home," per Rep. Martha Roby (R-Ala). 

Under the bill, employees may use their comp time only at the employer's convenience.     If a business is necessarily inflexible when it comes to scheduling time off as the business may relay on a small number of employees for an entire function, then comp time may not be a viable alternative.  For the small employer, the concern may be the potential lost productivity and the additional paperwork for tracking comp time accrued and used.

Yes, the bill has put in provisions to protect against abuse, and only offers the workers a chance to opt for the extra time off if that's what they want.  But I side with the Democrats that such an option is ripe for abuse by unscrupulous employers.  The bill is a potential way for extra work to be imposed on workers with no additional cost to the employer. 

Vicki Shabo is the Director of Work and Family Programs of the non-partisan National Partnership for Women and Families.  Her organization is staunchly opposed to H.R. 1406 and sees it as a wolf dressed in sheep's clothing.  "This is a dangerous proposal that pretends to be something that will help working families.  It will take money out of worker's pockets for overtime pay that they otherwise would have received in wages and instead replace it with possibly an empty promise or a mirage of time that's out in front of them that they may never be able to take."

"For the record, there are many ways for Congress to improve both worker pay and work life balance, including raising the minimum wage, instituting paid sick leave, ending discriminatory pay practices, easing the formation of unions and promoting advance notice for worker scheduling,  The House bill ignores what is helpful and embraces what is harmful."  The New York Times, May 10, 2013.

I highly doubt that this bill will go much further. The White House stated in early May that the president would be advised to veto such legislation on the grounds that it would weaken protections in the Fair Labor Standards Act.

Legal Mistakes by HR (Part 1)

Yes, it happens.  We have a host of responsibilities and every once in awhile, HR can make a mistake.  Oftentimes multi-tasking results in our missing a step in a sequence or forgetting something.  We simply allow something to fall through the cracks.  Over the next couple of days I am going to focus on a handful of mistakes that I see as real landmines.   

1.  Failure to train supervisors.  Unintentional or not, supervisors say or do things that put the entire company on the hook.    A seemingly harmless question during the interview process such as "what church do you attend" or "how old are you" can spark a discrimination lawsuit.   Ignorance may be bliss, but it's not an excuse (or defensible in a court of law).

Ensure supervisors learn how to listen for leave requests that may fall under the FMLA umbrella and trigger FMLA protections. Remember, employees don't have to specifically ask for FMLA.  It is extremely important to train your management staff and front line supervisors on what constitutes notice of FMLA.  Further, the supervisors have an obligation to take action if they suspect an employee has provided notice. 

Why is training so important?  Let's take a look at the discount chain Target for just a moment.   Multi-cultural tips (via a controversial document) recently distributed at one Target location has sparked claims of discrimination by three employees.  The document which Target claims is not part of it's company-wide training program, called “Organization Effectiveness, Employee and Labor Relations Multi-Cultural Tips," was distributed to managers.  The document included subtitled sections like "intercultural differences."  What were the intentions of the managers?  You can only guess.  Here's an excerpt from the document:

1. Food: not everyone eats tacos and burritos
2. Music: not everyone dances to salsa
3. Dress: not everyone wears a sombrero
4. Mexicans (lower education levels, some may be undocumented)
5. Cubans (Political refugees, legal status, higher education level)
6. They may say “OK, OK” and pretend to understand, when they do not, just to save face.

Recognize the potential areas for training within your organization.  One size doesn't fit all so tailor your training needs to your organization. 

Exel and EEOC

An Atlanta jury awarded $500,000 ($25,000 in compensatory damages and $475,000 in punitive damages) in a sex discrimination suit against Exel, Inc., a Westerville, Ohio-based warehouse and distribution company.

According to the EEOC's suit filed in U.S. District Court of the Northern District of Georgia, Excel, Inc. violated Title VII of the Civil Rights Act of 1964 by refusing to promote a female, Contrice Travis, to an inventory supervisor position in 2008.

During the course of the trial, the EEOC presented evidence that:

1. Male employees were routinely promoted after verbally requesting consideration from open positions while Travis, who was indisputably recognized as the most knowledgeable in inventory control, was denied the inventory supervisor position.
2. Travis's former supervisor testified that when he recommended Travis for the position, the general manager informed him that he would never put a woman in that position.
3. Travis was told that the inventory supervisor position would not be filled.
4. The male selected for the position was told by management and a human resources official that the position would be filled, but that he would be selected only if he kept it a secret.
5. The selectee, Michel Pooler, required training by Travis because he had no inventory experience.

This isn't the first, or last,  potential violation by Exel.

On April 9th of this year, The Columbus chapter of the Council on American-Islamic Relations filed a federal employment discrimination lawsuit.  The plaintiff, Yusuf Sufi, was fired by Exel in May, 2012.   The federal complaint states that Sufi repeatedly asked Exel to provide him with an accommodation under which he could attend his Friday afternoon prayer services.   His employment was ultimately terminated by Exel in May 2012 when he asked for the accommodation a second time.  (It appears that Exel missed the memo.  Both state and federal law requires employers to accommodate the religious practices of their employees unless it creates an undue burden on the company.)

"This is not the first time Exel has discriminated against employees when they have asked for religious accommodation. Our office filed 18 charges of discrimination with the EEOC last month relating to the denial of religious accommodation for Muslim employees who worked at the same facility at which Mr. Sufi worked," said CAIR-Ohio Legal Director Jennifer Nimer. "This pattern of discriminatory behavior continues to be a problem at Exel." 

A massive review and overhaul of Exel's practices, policies, training and personnel needs to occur.   Both management and human resources have failed on a massive level.  Human resources is there to protect employee rights and employer rights.   In the case of Ms. Travis, HR took the side of the wrongdoer and supported a discriminatory selection process.  Human Resources didn't take steps to eliminate discrimination or reduce company liability in either case.

Pending Legislation in Texas

Below is a small sampling of employment-related legislation filed in the Texas Legislature.   If passed and signed into law, these will have a tremendous impact on Texas employers.

HB238/SB237
Prohibition of employment discrimination on the basis of sexual orientation or gender identity or expression.

HB321
Deferred adjudication may not be used as a factor in employment decisions, housing or issuance of state licenses.

HB667
Puts leave for foster children on same basis as leave for biological or adopted children.

HB950
Incorporates federal law in the Lily Ledbetter Fair Pay Act of 2009.

HB1829
Relating to safe patient handling and movement practices at hospitals and nursing homes.  No retaliation or discrimination toward staff members who refuse to participate in unsafe handling of patients.

HB1188
Relating to limiting the liability of persons who employ persons with criminal convictions.  Tightens up on standards for proving negligent hiring and supervision of employees with prior convictions.

HB494/SB741
Extends to two years the time limit for filing a wage claim with Texas Workforce Commission.

SB340
If TWC finds bad faith on employer's part for failure to pay wages, it "shall" impose a penalty (instead of "may").

Happy Birthday to the Equal Pay Act

50 years ago today the Equal Pay Act was signed by President John F. Kennedy.  While equal pay is the law, the nation still faces gender wage disparities.  In 2012, women generally earned 77 percent of men's wages.  For African-American and Latina women, the number is even lower.    We have made progress, but it's not enough.

The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work.  The jobs need not be identical, but they must be substantially equal.  Remember that job descriptions and titles are irrelevant. 

On the front line of this battle is the EEOC who has made enforcing equal pay laws one of its six priorities as outlined in the Strategic Enforcement Plan.

New Employment Eligibilty Verification Form I-9

On March 8, 2013 the U.S. Citizenship and Immigration Services (USCIS) released a revised Form I-9.  Employers are encouraged to begin using the revised form immediately.  However, since some employers may need to update internal processes, USCIS is allowing 60 days from March 8, 2013, during which time employers can continue to use prior versions.  Beginning May 7, 2013 only the new Form I-9, with the revision date of March 8, 2013, may be used.

The new Form I-9 can be found on the USCIS website at www.uscis.gov under the Forms tab.

Religious Accommodation

Good Friday is right around the corner.  That day will always serve as a reminder to me of the event forever referred to as The Employee Mutiny of 2011.  In 2011, I upset a few employees by converting the Good Friday Holiday to a floating holiday.  Yes, change is difficult, no matter how small the change.  But with proper communication the employees came to understand that they didn't lose the day, it was just handled a bit differently. 

 

Religious discrimination by employers is expressly prohibited by Title VII of the Civil Rights Act of 1964. Although employers don't have to satisfy an employee's every desire in accommodating his/her religious beliefs, employers are required to make "reasonable accommodations." The most common such accommodation is granting an employee time off to observe a religious holiday.

 

My goal in converting this to a floating holiday was to allow other employees, with different religious beliefs, to have a holiday for their use.  As any organization grows, you want to be able to recognize all religions.  (Another basic step is to modify the vacation/PTO policy to reflect the use of available vacation time for religious holidays not normally recognized by the company.)

 

We live in a beautiful and diverse world!  There's Christmas, Hanukkah, Kwanzaa, the feasts for Santeria.  We have Hindu holidays, Muslim holidays and even Pagan holidays.  Employers and HR professionals all struggle with how to celebrate them, how to recognize the diversity of these religious beliefs and practices.  With care, communication and understanding, the process is easy!

 

The Importance of Training Managers

What is the cost to an employer when a manager doesn't recognize s/he is acting in a discriminatory manner?   Some managers don't seem to understand what discrimination means, or oftentimes how to recognize it.  Discrimination, and the cost of discrimination, is a problem that companies just can't ignore.

In an EEOC Press release of 1/23/2013 the Dallas-based Fries Restaurant Management will pay a former employee $25,000 to settle a religious discrimination lawsuit.  The employee, Ashanti McShan, is a member of the Christian Pentecostal Church which requires women to wear either skirts or dresses.  During the interview process with Burger King, Ashanti requested a religious accommodation to wear a black skirt versus the black uniform pants.  She was told by the interviewing manager that her accommodation would be granted.  However, during her orientation the store manager advised her she could not wear a skirt and had to leave the store.  McShan attempted to contact higher management, and was unable to speak with anyone.  She was later discharged as a result of the accommodation denial.   Title VII of the Civil Rights Act of 1964 prohibits religious discrimination.  It requires employers to make reasonable accommodation as long as such does not pose an undue hardship on the organization.   

Florida Courts:  In Hurley v. Kent of Naples, on or about 2005, Patrick Hurley was diagnosed with depression and related mental health symptoms.  The doctor who provided the diagnosis, and the therapist, both advised that he should take medical leave.   The employee advised the company senior officer that he had been diagnosed with depression and needed time off to deal with it.  Having accumulated several weeks of vacation, the employee requested to take most of the year off on vacation.   His request was denied and he was terminated.  Obviously an FMLA suit, alleging interference with FMLA rights and retaliation, followed and Hurley won.  (FMLA entitles eligible employees to take unpaid, job-protected leave for certain family and medical reasons.)    The estimated judgement:

• $200,000 for actual monetary losses
• $353,901.85 for front pay
• $200,000 liquidated damages
• $233,109.75 for attorneys' fees
• $21,329.36 for "costs."

Texas courts: In an EEOC press release of December 18, 2012, Dillard's will pay $2 million to settle a class action disability discrimination lawsuit. Dillard's Inc, enforced a maximum-leave policy limiting the amount of health-related leave an employee could take. Additionally, since 2005, Dillard's had a national policy and practice that required employees to disclose the exact nature of their medical conditions to be approved for sick leave. Further, Dillard's terminated a class of employees nationwide for taking sick leave beyond the maximum amount of time allowed. This policy violated the ADA which prohibits employers from making inquiries into the disabilities of employee's unless it is job-related and necessary for the conduct of business.  The second violation was that managers/supervisors (or even HR) did not regularly engage in an interactive process with employees to determine if more leave was allowed under the ADA as an accommodation.  (More information is available on the EEOC website.)  While you can't blame the managers for this company-wide form of discrimination, logically HR should have identified the violation and pushed for policy reform.  But, who's to say that they didn't?

When discharging an employee who just revealed the need to take time off for a medical condition, use caution. Make sure the discharge reason is unrelated to the request.  Remember, firing an employee who is pregnant has legal risk.  Firing an employee because she is pregnant is illegal.

Employers can take steps to prevent discrimination claims by ensuring that all managers are properly trained.  Please invest in training your managers. 

"The best way to begin is to begin." 
                        - Benjamin Franklin.

Concerted Activity

When you think of the term "concerted activity" there is often an automatic assumption that a union, or union activity, is involved.  But that's not always the case.  Section 7 of the NLRA states "Employees shall have the right to self-organize, to form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities. . . " 

 

Protected concerted activity sometimes has nothing to do with unions at all.   Employees who get together and complain to management about their pay or benefits is engaged in concerted activity.   Concerted activity can include internal complaints of discrimination, discriminatory harassment complaints, etc., all of which is protected by Section 7 of the NLRA.  

Is Gender Bias Alive And Well?

Gender Bias n. unequal treatment in employment opportunity (such as promotion, pay, benefits and privileges), and the expectations due to attitudes based on the sex of an employee or group of employees.  Gender bias can be a legitimate basis for a lawsuit under anti-discrimination statutes.

 

Gender bias begins at an early age.  From the pink or blue outfits children receive at infancy, the influence of toy selections, to how teachers respond to a child in school, or the books we read them at bedtime. (An April, 2011 study of gender bias in literature examined nearly 6,000 children's books published from 1900 to 2000.  Of those, 57% had a central male character compared with only 31% female protagonists.  Presumably animals of an indeterminate gender led the rest.)  So how do we respond to gender bias in the workplace?

 

First let's understand that gender bias is more subtle than sex discrimination.    Bias occurs because of personal values, perceptions and outdated, traditional views about men and women.  We may encounter gender bias in many forms and degrees.   For example, both men and women tend to view women who express anger more negatively than they view men who express anger.  Even when the members of both sexes use the same words and body language to express that anger.  Gender bias exists where men or women are evaluated or perceived differently depending on whether their actions violate expectations of how they should act or expectations of what behaviors are required for a role they have assumed.  Whether the subject of bias is male or female, the effects of gender bias can be devastating.

 

Beginning in as early as 1982,  state judiciaries began to address gender bias by creating a variety of research committees and task forces.  Since that time, attention around gender bias in the workplace has continued to grow in every industry.

 

Then:

"Gender bias exists in many forms throughout the Massachusetts court system.  Sexist language and behavior are still common, despite an increased understanding that these practices are wrong."  New England Law Review.  Volume 24, Spring 1990.

"The New Mexico Supreme Court is greatly concerned over manifestations of gender bias in the court environment within the State of New Mexico."  "In 1987, the State Bar of New Mexico established The Task Force on Women and the Legal Profession and requested that the Task Force examine the needs of women lawyers, their acceptance by the Bench and Bar in general. . . . . The Final Report, issued November 2, 1990, documented gender bias not only directed toward women lawyers, but affecting female litigants, witnesses, and court employees."

The State of Florida, Gender Bias Study Commission:  Executive Summary, found that "during it's two years of hearing and study, that gender bias -- discrimination based solely on one's sex -- is a reality for far too many people involved in the legal system.  (1990)

In 2011, a team at Yale University asked 127 professors at six U.S. research universities to judge the merits of college graduates.  The graduates were applying for a position as a lab manager before heading to graduate school.  While using identical resumes, of which half were obviously female applicants, the participates were significantly more likely to hire the man, and at a higher salary.  Interestingly enough, the bias was equally strong among both the female and male scientists and did not vary by age, race or discipline. (www.sciencemag.com)

 

Now:

"The Supreme Court's decision on the Walmart case - in which five justices, all male, sided with the company in denying 1.5 million female employees the right to pursue a class-action sex-discrimination lawsuit - showed a truly stunning obliviousness to the way gender bias actually plays out in the workplace."  The Daily Beast.  "The Supreme Court's Cluelessness on Gender Bias."  June 22, 2012.

 

MSLGroup currently has a class action lawsuit pending alleging gender pay discrimination.  The $100 million class action lawsuit was filed in February 2011 and represents women who worked at the agency from 2008 until the date of judgement.  Of the 33 total plaintiffs, two are current MSL employees.  One, Sheila McLean, is currently a SVP and a 12-year veteran of the firm.  The lawsuit alleges that MSL paid female professionals less; did not promote women at the same rate as male counterparts; and conducted discriminatory demotions, terminations and reassignments for female staffers during the agency's 2009 reorganization.

 

After all the steps we have taken, all the studies, polls, research papers, etc., gender bias is still alive and well in the workplace.  As an employer, you need to be aware if gender bias exists in your workforce.  Train your employees to identify it, and to acknowledge it.  Secondly, call attention to the bias.  Make a commitment to eliminating it in your workforce.

 

 Title VII prohibits discrimination "because of" an employee's sex. As an employer we may not take adverse action against an employee because of their sex. Sex can not play a role in any aspect of their employment including hiring, transfers, promotions, pay, disciplinary action, suspensions, and discharges. It's also important to understand that while Title VII was originally understood to apply only to women, that is no longer the case. It also prohibits discrimination against men. For example, when a male employee is denied a promotion in favor of a female employee, and the male can prove that the reason was "because of his sex," there may be claim for sex discrimination.

2013 Top EEOC Enforcement Topics

2013 is here and so are new challenges for employers!  Via HR Alert, below is a list of the top 5 EEOC enforcement topics for 2013. 

 

1. Strict leave policies and ADA.  To avoid EEOC attention, ensure that you are providing proper reasonable accommodations to disabled individuals.  Also under the EEOC microscope will be leave policies like no-fault attendance, fixed-leave and 100% healed (policies requiring an employee to be fully healthy before returning to work.)
2. LGBT Issues:  EEOC will be looking for signs of discrimination against lesbian, gay, bisexual and transgender individuals.  In April 2012 the EEOC issued a precedent-setting case, Macy v. Holder, that interpreted existing laws prohibiting discrimination on the basis of sex to also prohibit discrimination on the basis of gender identity and sex stereotyping (believing a man must be masculine and a woman feminine, for example).   EEOC determined that transgender employees are covered under Title VII.
3. Leave Policies for Pregnant Workers.   Review your leave policies to ensure they don't open the door to discrimination against pregnant workers.
4. Litigation of national and regional class-action cases.  Employers can expect to see a continued emphasis on company wide investigations. 
5. Use of background checks in hiring process.  In April the EEOC released its guidance on the use of arrest and conviction records in employment decisions.  If you need a refresher, refer back to my June 6, 2012 blog for the enforcement guidelines.   As an employer you need to ensure you understand the differences between arrest and conviction records and how, in some instances, the use of an individuals criminal history in making an employment decision may violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.

Happy Thursday everyone!

Moonlighting Policies

In light of the economy and U.S. unemployment situations, moonlighting has a new appeal for employees.   Employees are working second jobs to make ends meet or just to pay down debt.  And with the holiday season upon us, more people are becoming multiple jobholders.

 

According to the Monthly Labor Review, May 2012,  from 2010 - 2011, the multiple job-holding rates in Texas increased from 3.8 to 3.9%.  In 2011, a Elance survey found that 36% of respondents were starting or operating a business while working full or part time traditional jobs. 

 

To protect business interests, should the employer implement a moonlighting policy?  Well, typically employers won't prohibit employees from moonlighting - unless there is a direct impact to business. One must consider that prohibiting someone from having a second job, where there is no harm to the employer, and taking action against the employee, may have unfortunate legal ramifications. If an employer fires an individual for having an outside job, where there has been no negative impact to the employees duties, performance, etc., a jury might later suspect that the employer was motivated by some form of illegal discrimination.

 

So let's talk about your policy.  At the minimum a Moonlighting Policy should contain:

• Statements addressing conflicts of interest.  Any policy should clearly state that employees are not permitted to accept or engage in any activity / employment that would conflict with the interests of the primary employer.
• Statements addressing interference with the primary job.  Interference may be experienced via impact to the employees performance.  Additionally, the employee may be unable to work overtime due to a commitment to the second job.   Is there an increase in absenteeism or tardiness?
• Your approval for outside employment.  Ultimately the employees true commitment should be to their primary job.

A carefully written policy may protect your organization without intruding too far into employees' personal lives.  And remember, many state laws protect employees' personal lives.  Be cognizant of Lifestyle Discrimination Laws of which some laws address a specific activity and others encompass a wide array of off-duty conduct.  For instance, California, Colorado and New York prohibit discrimination based on any lawful activity by an employee off the premises and during non-working hours.  At this time Texas does not have lifestyle-discrimination laws.

 

Whether or not you decide to institute a Moonlighting policy, clearly communicate your expectations to your employees.

EEOC Update

The EEOC recently released it's Performance and Accountability Report for fiscal year 2012.  The report states that the EEOC recovered more than $365.4 million in monetary benefits through private sector administrative activities including mediation, conciliations, and withdrawals of benefits.  This is the highest amount recovered in any one year by the agency, $700,000 more than recovered in 2011. 

 

During the year the EEOC had 309 cases on its active docket with a total of 254 merits lawsuits resolved resulting in recovering $44.2 million through litigation.   Included were 162 cases under Title VII with the EEOC recovering $34.3 million in Title VII resolutions.   

 

The EEOC is in the early stages of implementing its Strategic Plan for Fiscal Years 2012-2016.  This four year plan will outline the agency's goals and achievement benchmarks for enforcing various anti-discrimination laws under its jurisdiction.  

Sorry, I'm Not Going To Tell You What You Want To Hear

I upset an executive the other day when I advised him that a tactic he wanted to take with an employee really wasn't the best approach.  When I explained why a different approach was needed, the response from the executive was anything but supportive. 

 

To quote Dilbert, "Do you want a realistic. .. that will ruin your day, or a lie that will allow your ignorance and your happiness to lock arms and square dance to the next cubicle?"

 

It's human psychology. Most times we hear what we want to hear. We want things to align with our vision of how the world works. However, Mr. Executive, if someone is brave enough to give you honest input, take a moment to recognize it. Don't shoot (or shun) the messenger.   Don't just turn to confidants who will tell you what you want to hear. My recommendation is that you turn to several sources for information and obtain several points of data.

 

For just a moment please understand that HR isn't here to offend you.  We all know that in the business world, unintentional violations do not excuse wrongful behavior.   No, I'm not here to provide you with legal advice. But, I am here to advise you where you may face potential liability.  So,  I'll question tactics, suggestions or orders that may appear to be unlawful.   I will ask questions and seek clarification.  I will then tell you what works best based on my knowledge and experience.  I'm going to follow my instincts.

  
In May, Forbes published the "10 Commandments for Delivering Bad News."  In brief (and the link has been provided) the commandments are:

1. Thou shalt always treat people with respect and dignity.
2. Thou shalt always follow up and follow through
3. Thou shalt always remember your multiple audiences
4. Thou shalt always bring solutions
5. Thou shalt always look for the silver lining
6. Thou shalt always justify
7. Thou shalt always put in writing
8. Thou shalt never hide the facts
9. Thou shalt never delay
10. Thou shalt never surprise

Any successful employee strives to anticipate the boss's needs and then deliver them.  Telling people what they don't want to hear is risky.  I can sit here, nodding, and maintain the status quo.   But that's not what you hired me to do.   I'm not going to hide the facts and I am going to provide you with solutions.

http://www.forbes.com/sites/forbesleadershipforum/2012/05/30/10-commandments-for-delivering-bad-news/

Generation Gaps: How We (Mis)Communicate

The Baby Boomer generation is starting to exit the workforce, leaving the reins of leadership to the GenXers.  Through this transition organizations are struggling to balance the work styles and communication preferences of 3  - 4 different generations.   Baby Boomer or member of Generation X, through formal writing or an IM, we all need to communicate with each other.   This is where our real generation gap exists.

In my blog entry, Rudeness at Work, stats reflected that younger employees, by an increase of 28% over older workers, contributed to incivility in the workplace.  Question:  Does this present a framework for identifying age-related differences in work attitudes and behaviors?   Answer:  Yes.  In September of this year CareerBuilder surveyed 3,892 U.S. workers and 2,298 U.S. hiring managers ages 18 and over. The results of this survey, Generational Differences in Work Styles, Communication and Changing Jobs, highlighted the contrasts of the generational trends on how each generation approaches work.  It appears as though this isn’t intentional incivility, it's the result of the generation you grew up in and the differences in generational communication styles.   

CareerBuilder Survey Question:  How Do You Like To Communicate at Work?
 

Face to Face

• 60% (Ages 55+) 
• 55% (Ages 25 - 34)

Email/Text

• 28% (Ages 55+)
• 35% (Ages 25-34)

Phone

• 12% (Ages 55+)
• 10% (Ages 25 - 34)

Baby Boomers, born between 1946 and 1964, are the largest generation born in America to date. The offspring of the Silent Generation, the Boomers experienced* the Vietnam War, the Civil Rights Movement, and the assassinations.   The "We Generation" who were defined by the Cold War and the Space Race. The Boomers recognize the value of relationship building, preferring personal, face to face communication over communicating through technology. Technology is a means of communication, not an exclusive tool to communicate.   Here's where the generation gap comes into play.  The GenX and GenY prefer to use digital communication almost exclusively.

GenXers, born between 1965 and 1980, are defined by Watergate, an era of political corruption, economic inflation, single-parent homes, MTV, the fall of the Berlin Wall, and the Challenger tragedy.  GenXers often prefer direct and straightforward communication.  And as a result, they may appear abrupt.    While the gap between Gen X and Gen Y is much larger due to the rate of technology growth, GenXers are highly techno-literate and don't worry about being outpaced by younger colleagues.   

GenY, born between 1980 - 1999, are "The Millennials,"  the generation of Facebook and MySpace.  Labeled as digital natives, the high-tech environment has shaped their values.  They are defined by computers, TV talk shows and the Oklahoma City bombing.   (The Department of Labor statistics estimate that GenY will compromise more than 40% of the workforce by 2020. Their sheer numbers will transform every life stage entered.)  GenY is extremely comfortable in a wired world.

GenZ, born after 2000, is the Digital Generation.  They are plugged in to the Internet by handheld devices, remaining connected every moment of their lives.  With so much of the GenZ life centered around the digital domain, a significant percentage prefers socializing online than in real life.  Through IM, text or Mobile phones, their digital connection to the world is essential.  They have access to the World Wide Web 24/7 and information and knowledge at their fingertips.    With a vague memory of such a key event, they are the generation of 9/11 and homeland security.

As technology evolves, so do our communication options and preferences.  Communicating faster, each generation will have vast differences in their communication methods and preferences.  These preferences may create a dividing line between one generation to the next.  Every organization will need to have increased awareness of the potential miscommunication due to generational differences. It will be critical to know the generation and to connect with their preferred style.

*Generations . . .  are deeply influenced and bound together by events of their formative years.  . . . the events that occur at various critical points in the group's lifetime .. . define their core values."

Generation "dates" are approximate and vary by demographer. 

Cronyism or Extreme Social Connections?

Normally the hiring process is a relatively random process based on the selection of applicants.  And in the recruiting process, referral hiring is a common practice.   But there are times when the selection process is not so random or neutral.   What happens when the hiring manager is not totally indifferent to members of the candidate pool and the referral value of a candidate increases based on their social connection with the hiring manager?   Is this where an organization, or manager, potentially crosses the line into favoritism? 

 

In my last blog (Nepotism - It's All Relative) I discussed nepotism and the challenges it may bring to an office environment.  Skipping down that little favoritism trail,  hand in hand with nepotism, is cronyism.   Cronyism is a specific form of favoritism referring to partiality towards friends and associates.   

 

Have you ever worked in an environment where there's a bunch of "good ole boys?"   A group of individuals that are given an undue advantage but who don't necessarily merit this treatment?   Individuals that may be in positions where they are not even qualified to do their job?  In an environment where it's not WHAT you know but WHO you know, you are experiencing cronyism.  That favoritism can be exhibited in compensation, discipline, or even positions.  

 

Does cronyism undermine business effectiveness?  Unfortunately cronyism can create an air of entitlement for those employees who were hired based on their social connection.  They may feel as though company rules do not apply to them.  Additional negative consequences are that sometimes these individuals are under-qualified to perform their jobs (potentially promoted to a level of incompetence) and even pay scales may become distorted.

 

Referencing my earlier question regarding the practice of nepotism and whether or not it's ethical, here's something for consideration:

• One of the most basic themes in ethics is fairness. Logically, cronyism (or nepotism) interferes with fairness through the undue advantage of one person who may not merit such treatment.

Both can greatly undermine the effectiveness of an organization.  So, draw your own conclusion.

 

Always keep an eye on your hiring practices.   We all know that businesses are often thick with social connections.  But don't allow your organization to become too relationship-driven that you unknowingly violate Title VII of the Civil Rights Act by discounting highly qualified applicants.

Nepotism - It's All Relative

"Nepotism is favoritism granted to relatives regardless of merit."   

 

You have to wonder in what world a business owner / executive would think that an organization is best-served in hiring relatives "regardless of merit."   

 

For an employer, there may be a perceived benefit to hiring family members.   You're helping the family member out, becoming a bit of a hero in the process, while potentially saving the costs of recruiting, training, background investigations, etc.  for a new employee.    However, there may be disasters looming right around the next corner.

 

While family members may create a readily available workforce oftentimes they are under qualified for the positions they fill.   And those employees who are bypassed in favor of family members may develop hostile feelings, feelings of resentment.  Nepotism in a business environment may create a perceived lack of fairness in the organization, a disastrous negative impact in which employees may see no career growth. 

 

What about employees who are responsible for supervising family members?  Disciplining or firing employees is difficult enough but will they be restricted in what corrective actions they may take?  Will there be repercussions in taking corrective actions?  Will it cost the employee their career?  How does an employee handle the situation when it's the bosses relative?  Whether or not the owner wishes to admit it, nepotism can be a disruption to the work environment. 

 

Can engaging in nepotism be illegal?  Ordinarily, no.  However,  if the employer hires family (or friends) to the point where there is no consideration for other sexes, age groups, etc, the employer may be unknowingly violating Title VII of the Civil Rights Act of 1964. 

Business owners - here are a couple of questions for you to ponder:

1. Is nepotism unethical?
2. Should nepotism be in the Code of Conduct?

Employee Actions Off The Clock

In case you missed it, Joseph Andolino, a senior vice president of Halliburton's tax department was arrested in a Harris County prostitution sting along with six other men (reported in the Houston Business Journal).  While there are no reports that he committed the crime on the job, several questions relating to his on-going employment with Halliburton come up.   

 

While I don't think that employers want to overly intrude into the private lives of employees, as an employer do you  have a policy or an employment contract that says an employee may be terminated if s/he engages in criminal conduct?  Do any of your company policies address employees conviction of a crime that indicates unfitness for the job or raises a threat to the safety or well being of fellow employees? 

Texas is an at-will state.  That allows Texas employers a lot of latitude in the hiring and firing decisions.  Essentially an employer can terminate an employee for any reason that is not specifically prohibited by law.  However, state legislation, employment contracts, union contracts or your internal policies may dictate your decision.   An employment clause may provide you with an avenue for dismissal.  But does it mandate the dismissal?

• Do you have to prove that the conduct has a direct impact on the job? 
• Does it compromise the employee's ability to do the job? 
• It is an embarrassment to the organization? 

We all agree that an employer shouldn't keep an employee whose after-work activities affect their job performance.  The general rule is the more off-duty behavior negatively affects the work environment, the more termination and/or discipline becomes a legal and valid option.  But, is failure to take remedial action regarding the off-duty conduct inferring that similar actions are condoned on the job?

 

Companies may face difficulty when dealing with terminating employees for off-duty conduct. Potential results when employee's are fired for off-duty behavior can be negative publicity, low morale and related turnover.   You must consider the nature of the crime and how it affects the workplace.  What effect, if any, does the behavior have to the workplace or the company's image?   Does the behavior justify adverse employment action?

 

If you are considering regulating the off-duty conduct of your employees, there are some things to be considered:

• Is the conduct legal or illegal?
• Is there an applicable law that protects the off-duty conduct of the employee?
• Am I willing to apply this policy consistently?

Jason Bosch, None Of Your Business (Interest):  The Argument for Protecting All Employee Behavior With NO Business Impact: " . . . employees should not have to relinquish autonomy over very aspect of their lives just to get or keep a job.   Employers have a vested interest in controlling those aspects of employee's lives that reasonably affect the employees' performance on the job, but that does not justify giving employers carte blanche to control every aspect of their employees' lives."