The Clock Is Ticking: NLRB Speeds On Decisions

A newsletter I received today from the law firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., was entitled NLRB Issues Numerous Controversial Anti-Business Decisions. The newsletter detailed a number of decisions that the current board has quickly made. According to the authors "In one day, August 27, the current NLRB majority, consisting of Chairman Wilma Liebman and Board Members Mark Pearce and Craig Becker, issued over 30 major decisions..."


The newsletter further states "...there are many that, under questionable and closely contested facts, expand interpretations of 'protected concerted activity.' The result is a clear pattern where the Board exercises increased scrutiny of employer conduct when a union loses a representation election."

One of the reasons they are rushing through these decisions is that Craig Becker, former Chief Counsel for the SEIU, is a recess appointment. You can read more on him here An Union Update: Craig Becker and the NLRB. But what that means is that they are rushing through as many decisions as possible before his term is up at the end of the year. They know he will not be in that position come January, and will have not chance of getting reappointed, since he could not get confirmed by the Senate this year. With the changes likely to happen in the mid-term election his chances will become "slim to none" with the emphasis on the "none."

So in the meantime they are cranking out as many "union friendly" decisions as possible. Well here, let me make it easy and offer them this form they can use.

This will make their job just a bit easier.

When HR Is Harassed: What Then?

In the September issue of HR magazine there is an article written by attorney V. John Ella of Jackson Lewis LLP entitled HR vs. HR. (You will have to look it up.) He talks about a number of different situations where an HR employee becomes a plaintiff in a lawsuit against her employer. ("Her" is the appropriate term to use given that 75% of HR employees are women.) I am not going to write about the entire article, I will let you read it, and it is worth it.

But, one example he used is well worth discussion. I have never really thought about this situation. His case involved a female HR employee (am I being redundant?) sued her employer for sexual harassment. She claimed she was harassed by the CEO and had no recourse for filing a complaint, because, (do you see what is coming?) the employee handbook said that any employee with a complaint of sexual harassment had to report it to HR or to the CEO. She had no where to turn.

That gave me pause and I asked myself  "Self... how many handbooks out there have a policy written just like that?" I know most of the ones I have seen are written just that way and they never have an allowance for HR being the harassed party. Perhaps that is because of my male perspective. No one has ever harassed me, at least not since I have been in HR. (There was this one time with a female boss a long time ago.... but you will have to take one of my classes to hear that story.)

So my question is this: Have you female HR employees written your handbooks differently? Is there an option for you reporting sexual harassment, especially if the other person in the reporting heirarchy is the harasser? What have you done? This can be especially problematic in smaller companies.

Lawyer Ella, in the summation of his article, suggests that you "Make sure your sexual harassment policy provided guidance for an HR employee to report harassment." Unfortunately he does not provide any guidance on what this may be. So I will tender a few suggestions. Perhaps the following parties could be included in the policy:

• A member of the Board of Directors
• An outside employment attorney retained for such an event
• An EAP, set up to handle such a complaint
• An HR consultant, retained for such an event

These are a few suggestions. You can do it if you want or not. Of course you can always leave it to the plaintiff's attorney and the EEOC. They will be happy to help solve the problem.

I would love to have someone share what they consider to be an effective harassment policy. You can post it in the comment section or you can find an email link on the panel to the right of this post.

Employee Handbooks: Damned If You Do, Damned If You Don't

In my consulting practice (which is geared primarily toward small businesses) I see and revise, or write, alot of employee handbooks. Some are well done, most are generally not. Few are recently revised and most are out of date, woefully out of date. Even in some larger companies keeping you handbook current can be a challenge in a rapidly changing legislative environment.

I occasionally run into a company that feels they don't need to have an employee handbook. To them I explain that they are missing a superb communication piece that not only helps them comply with many legislative requirements but can help them communicate culture and expectations. Other times I run into companies which have handbooks that are so legalistic that even I have a hard time understanding them. To them I also explain they are missing a superb communication opportunity.

Another common mistake I see is that rather than having a handbook to guide employees the company produces a "policy and procedures" manual. This is a mistake. A P&P manual is great for supervisors and managers to be able to understand the actions they must take regarding employee interactions and behaviors. It is, however, not something you want to give to your employees. A P&P manual will by its nature be too wordy and complicated for what you are trying to accomplish.

Here are some tips that I have learned about employee handbooks that you may find helpful:

1. Remember is is a communication tool. It should be written at a level to enhance understanding by your employees. It should also be written to communicate your culture. One of the best I ever saw at doing this was one written a number of years ago by The Motely Fools. It match the culture perfectly.
2. Remember, there are compliance issues that need to be dealt with, such as FMLA, harassment, USERRA, etc. But these do not have to be presented in a legalistic manner.
3. Remember this is NOT an contract and you do not want it to be. So a good review by an attorney is a good idea.
4. Remember you do need to have some disclaimers in there, such as NOT a Contract, Employment-at-Will, and management's right to change policies without notice.
5. Remember to have an Acknowledgement signed. The unemployment office will ask if the employee knew the rules.
6. Remember, special agreements, such as non-disclosures or arbitration agreements need to be separate documents and not buried in a handbook.
7. Remember, try to present things in using positive language. Make it more about the "do's" of proper behavior rather than the "don'ts".
8. And lastly, train your supervisors and managers on what is in the handbook! And have a procedures manual for them on what to do when confronted with a situation.

Of one thing I am certain. You must have an employee handbook. You may have to dance around some issues if it is poorly done, but more often than not, the FAILURE TO HAVE A HANDBOOK will get you in trouble many more times than when you have one.

I am sure I have missed a number of good ideas. What are they? Let me kow.

Status is in KNOWING: Are You Aware of This Trend?

The other day on DriveThruHR I talked about the importance of paying attention to the "future" for HR. Listen Here One to the trend newsletters I read, TrendWatching.com recently talked about what they called the "Statusphere". They defined that as:
"STATUSPHERE: As consumers are starting to recognize and respect fellow consumers who stray off the beaten consuming-more-than-thou-path, 'new' status can be about acquired skills, about eco-credentials, about generosity, about connectivity... All of this makes for a far more diversified 'STATUSPHERE' than most brands and organizations have traditionally catered to. Time to really figure out how and where your customers are now finding their status fix."

They defined five areas that they thought today's consumers would be seeking status. One of these I thought was particularly relevant to human resources. That is the trend toward seeking status in:
"... find(ing)  pleasure (and STATUS STORIES) in mastering skills and acquiring knowledge. They attain status from finding an appreciative audience that's impressed with what they know, and can create, instead of what they consume."

In HR we are always looking for ways to reward and motivate employees. Perhaps, knowing this trend, you can identify employees (consumers) who like the status of knowing and learning. You can direct their work experiences around being the acknowledged expert in the department.

Think about it. Do you have knowledge status seekers working for you? Are you paying attention to that need and interest? Money doesn't always have to be the reward.

The Carnival of HR: The New Year Edition

Melissa Prusher at the Devon Group is the host of the first edition of The Carnival of HR for 2010. Happy New Year! This one is filled with several posts about predictions and top 10s. There is also several posts about learning, such as Trish McFarlane, at HR Ringleader’s Blog, sharing some favorite quotes in What Dr. Seuss Taught Me about Succeeding in Business and how many of his quotes can be applied to the business world. My good friend Cathy Missildine-Martin, at Profitability Through Human Capital, presents A New Year’s Resolution for HR Volume 2, a collection of thoughtful resolutions aimed at reducing costs, improving performance and increasing profitability. There is a thought-provoking piece on why people should NOT be promoted on merit and much, much more.

So set aside sometime and start the new year off right by reading this great collection of blog posts. In fact, make that a resolution! Resolve to read every Carninval of HR through the coming year. Talk about self-improvement!

New Year, Bad Way to Start: A Management Mistake

Over the holidays I was going to be a good blogger and do what many others were doing and come up with my TOP 10 list (or TOP 5) or make predictions of what to watch out for in 2010. But I spent most of that time sick in bed with cold/flu/food poisoning (pick on of the above.) So I was not really motivated to write on anything, needless to say. (Hmmmm if it was needless to say, why did I say it?) I am still a bit fuzzy brained and I may yet write on some of those topics, but I did want to relate a story that shows a management team starting off on the wrong foot and setting a bad example and a bad precedent.

Fortunately this is not a business example. It is a local county government. I will not name the county, it is really irrelevant to the story. Some of you may recognize this story. In this story we have a police chief with whom the Board of County Commissioners is unhappy. They accuse him of insubordination, mishandling sexual harassment investigations, poor monetary management, poor evidence storage, missing firearms, mismanagement of police chases and just poor management in general. They hold a public hearing (open government I suppose), make public the charges and do not allow him to make any statement defending himself. (He makes his statement anyway, to the press.) Then they announce their job action.

Now any business oriented human resources reader might come to the conclusion that their job action was termination. Most businesses I know probably would have made this decision. However, in this case they demote him and put him in charge of (get this) THE TRAINING ACADEMY! Yes, the Training Academy where all new officers are prepared for their jobs. Unbelievable! Whether or not the accusations are true or not is irrelevant. If they truly believed he was guilty of even half of the accusations why would they put him in charge of the training of incoming officers. What does this say to those officers? What does it say about their view of ethics? What does it say about their view of management? I was flabbergasted! (Click on the word for definition.)      

I would hope that business would not make this type of mistake, but I have a sneaking suspiscion I would be disappointed. I have seen some poor decisionmaking when it comes to employees who are protected by policy, or relationships, or have a stronger will than the management or HR representative. How about you? Have you ever seen anything as outrageous as this? Tell us your story.

And Happy New Year and best wishes for a profitable, successful 2010 to all my readers.

Are Growing Waistlines a Sign of Diminishing Employee Attitudes?

Yesterday I heard a radio commentary by Clark Howard. He was talking about his post Recession enabling Americans to make unhealthy food choices. He was discussing a piece of research that said that Americans are saying that the recession is making it more difficult for people to buy healthy food. The premise was that healthy food is more expensive than unhealthy food. Thus there is an increase in the size of waistlines of Americans.

Clark, however, rejects this premise, noting that there are many cheap, yet healthy, choices in the grocery store. He feels that the trend toward unhealthy foods is not one of cost but one of comfort. The recession is causing people to be stressed. And time after time research has found that when we are stressed we seek "comfort" food. These are things that taste good and that are generally not nutrionally good for you. I think of my own example. Several years ago, as my mother was declining in health and eventually dying I was at her bedside. Each night as I left the hospital to get something to eat I returned to a restaurant that I had found that served "home cooked" meals. I ate chicken fried steak and mashed potatoes and gravy each night. I was seeking comfort food during that very stressful time. Today I have a tendency to  grab a bag of peanut M&Ms (a big bag) when I get stressed. I think many of you are the same way.

So I agree with Clark. I think this tendency to growing waistlines is a signal of stress. So look at your employees. If they are getting heavier you may have some morale problems. People may be ill at ease with what is happening at work. It may be a signal that you have to do some damage control with employee attitudes.

A side note: This is my only post this week. I am heading on a short vacation to celebrate my wedding anniversary. Even though this our 38th, I still do not want to take any time or attention away from my beautiful wife, so I will not be posting until mid-week next week.

End of the Week Reading: Great Stuff from Great Blogs

I missed the Carnival of HR this time. (Need to do something about that darn calendar.) There are some very good posts there. Here is the link Carnival of HR. This is one is hosted by Rowan Manahan.

Additionally, here are several posts that I recommend you read.

1. Fran Melmed wrote an excellent piece called "We Don't Need No Stinking Diversity Training." It is so good it got picked up by NPR. She prompted me to write my piece on Removing the Ethnicity from your name.
2. Kris Dunn wrote some required reading for anyone considering committees called Are Committees in Your Company Ever a Good Idea? If this one does not make you think twice, then reread it.
3. Becky Regan, compensation pro extrodinaire, offers her 2010 predictions in The Compensation Cafe. "Top 4" Total Rewards Predictions for 2010  See if you agree.
4. Wally Bock, of Three Star Leadership, blasts Notre Dame and Brian Kelly for the very poor example of leadership they exhibited in Values, schmalues, there is money at stake.
5. And Ann Bares of Compensation Force writes on Throwing in the Towel: Are Employers Resigned to Impending Departures?

That is probably enough reading for the end of the week. But believe me, you will be better off for it. Have a great weekend.

Getting a Job by Hiding Your Ethnic Name

"What's in a name? That which we call a rose by any other name would smell as sweet." So says William Shakespeare in Romeo and Juliet. But many people today would disagree. In the New York Times Michael Lou writes about "Whitening the Resume" (Free registration required to read) In this article he talks about African American job candidates taking the "blackness" out of their names, schools, experience and references in order to get a foot in the door for an interview. Although regrettable, it is not a new phenomenon. A couple of decades ago women were taking the "femaleness" out of their names by using intials. Asians and Middle Easterners were "Americanizing" their names. Even earlier many Italians and Germans were doing the same thing. Hispanics were/are reducing the size of their names by dropping the several family names in their complete names. People will do what they perceive will give them an edge, especially in these "downturn days." In the 80's even young white men were changing their names by initializing their first name and going by their middle name because that "appeared more executive." People even do it regardless of age, sex, race, etc. just because they have a name they don't like. Agnes Susan Smith may is not going to feel her name says youthful and vibrant, so she drops the Agnes and becomes Susan. (Apologies to all Agnes out there.)

Is it right that they feel compelled to do this? Not really. Is it reality, perhaps, the research says so, anyway. Names are very powerful. What we hang on our children can boost or scar them. They can be trendy for the time but become dated with the passage of time. My contempories, many of whom were hippies, named their children Bridge, River, Summer, Spring, Flower, Dweezil, MoonChild, Chastity, etc. I am surprised I have never met "Oh Wow Man". So you parents out there think about what you are going to do to that little child who will someday be an 80 year old with that moniker.

Back to the potential discriminatory decision made on the basis of someone's name. I would hope that recruiters would look beyond that. Perhaps we should have a universal process for just calling someone "Candidate #_____". ( I do seem to recall something like this in the past.) But let's face it, discrimination, though somewhat diminished from three decades ago, does still exist. (See my post on The Big ISM: Racism.) But not all recruiters are lillywhite males. Many are female, many are "of color." So my question to them is "How do you react when you get a resume with an obvious ethnic name?" "Do you screen for 'whiteness'?" The same holds true for managers. Not all are white. Not all are males. Will a black female manager with a name like Mary Wilson have a negative reaction to a black female candidate named Eboni?

I don't know the answer to this. I would like some guidance. Someone tell me that ethnicity is totally ignored in their organization and people are only hired on the basis of their qualification. Make us feel good that progress is being made.

NLRB Nominees: Loading the Dice in Favor of Labor Unions

How would you like to play a game where everytime you threw the dice you were unlikely to win because you had been given a pair of "loaded" dice? (click for the meaning of this idiom.) You probably would not want to play anymore. But what if you had no chance? What if it was the only game in town? And what if your previous wins with the non-loaded dice were going to be set aside because you were not playing under the new rules?

Well that is the scenario that is being set up with the new nominees for the National Labor Relations Board. The NLRB is made up of 5 members. Three of them generally are generally appointees of the party controlling the White House. So in this case that would be three Democratic nominees and two Republican nominees. Currently there are only two appointed members serving. One was a Bush nominee and one was a Clinton nominee. The Clinton nominee, Wilma Liebman was Obama's  for the position of Chair of the NLRB. The Bush appointee is Peter Schaumber. The remaining two Democrat nominees are Mark Pearce and Craig Becker. Craig Becker in particular has become a lighting rod for controversy. A Republican nominees has yet to be named.

To help understand why this controversy exists let us compare the backgrounds of the current members and nominees.

• Peter Schaumber: Prior to his appointment as a member of the Board, Mr. Schaumber practiced as a labor arbitrator serving on a number of industry panels and through national arbitration rosters. Mr. Schaumber began his legal career as an Assistant Corporation Counsel for the District of Columbia. Subsequently, he was appointed Assistant United States Attorney for the District of Columbia and served in that office's Criminal and Civil Divisions. Upon leaving the United States Attorney's Office, he became Senior Trial Attorney and Associate Director of a Law Department Division in the Office of the Comptroller of the Currency. Upon leaving government service, Mr. Schaumber entered private law practice in Washington, D.C. and was director of his firm's Litigation Department. His practice included a wide range of trial and appellate civil litigation
• Wilma Liebman: Prior to joining the NLRB, Ms. Liebman served for two years as Deputy Director of the Federal Mediation and Conciliation Service (FMCS). She acted as the chief operations officer of this federal agency, overseeing arbitration, alternative dispute resolution, international affairs and labor-management cooperation grants programs. In addition, Ms. Liebman advised the FMCS Director on issues involving major labor disputes and participated in significant negotiations as needed.
  From 1994-1996, Ms. Liebman served as Special Assistant to the Director of FMCS. In this role, she was a key member of the Mediator Task Force on the Future of FMCS, an 18-member employee group charged with articulating a vision and recommendations to lead the Agency into the 21st century. Prior to joining FMCS in January 1994, Ms. Liebman was Labor Counsel for the Bricklayers and Allied Craftsmen from 1990 through 1993. She served as Legal Counsel to the International Brotherhood of Teamsters for nine years and as staff attorney with the NLRB from 1974 to 1980.
  
• Mark Pearce: Pearce has been a labor lawyer for his entire career. He is one of the founding partners of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux where he practices union side labor and employment law before state and federal courts and agencies including the N.Y.S. Public Employment Relations Board, Equal Employment Opportunity Commission, the U.S. Department of Labor, and the National Labor Relations Board. In 2008 was appointed by the NYS Governor to serve as a Board Member on the New York State Industrial Board of Appeals, an independent quasi-judicial agency responsible for review of certain rulings and compliance orders of the NYS Department of Labor in matters including wage and hour law.
  
• Craig Becker: Becker currently serves as Associate General Counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations. He has published numerous articles on labor and employment law in scholarly journals, including the Harvard Law Review and Chicago Law Review, and has argued labor and employment cases in virtually every federal court of appeals and before the United States Supreme Court.
  

The emphases in each bio are mine. The one current Republican nominee was an arbitrator. Arbitrators are known for carefully guarding their reputations for being unbiased so they can decide cases without bias. Pearce has practiced UNION side law his entire career. Liebman, did work for the Federal Mediation and Concilliation Service, which is a plus, but was an attorney for TWO different unions. And Becker is CURRENTLY on the payroll of arguably the most powerful union in the country, the SEIU, as well as acting as council for the AFL-CIO. Becker is well known for writing many papers indicating that UNION will always win if he has anything to do with it. (Follow these links to Shopfloor and the National Right To Work committee to see business' view of Becker.)
 
Republican Senators are adamently opposed to Becker's appointment, and Senator John McCain in particular has moved to oppose his appointment. Political wrangling may end up seeing Becker's nomination being used as a bargaining chip in the final determination of various labor friendly bills currently pending in Congress. The appointment of this board as it stands will potentially have as much an effect on the labor picture in the U.S. as the passage of any bill such as EFCA or RESPECT. The opportunity for this potential board to over turn 8 years of NLRB decisions will significantly alter the labor picture for companies of all shapes and sizes both union and non-union alike.
 
So stay tuned Bunky! The road may get rough.

What Companies Are Getting Sued Over!

Thanks to Jon Hyman over at the Ohio Employer's Law Blog who wrote the other day on Do you know? Employment Litigation Expected to increase in 2010. It was an eye opener. I clicked through from his blog to the Fulbright & Jaworski Fifth Annual Litigation Trends Survey and Highlights and read through the employment law section. Here is some of the information I gleaned from that report, but I would recommend you look at Hyman's analysis and also the actual report itself.

The report deals with multi-plantiff cases (aka class-action suits?) and here are some of the results (Note: I am only report results from the U.S., but there are results from the U.K. as well):

• In the U.S. largest increase in multi-plantiff cases where in FLSA wage & hour (19%), discrimination (14%), and Americans With Disabilities Act (10%).
• Increases in FLSA wage & hour cases were highest in California, the South and the Midwest.
• Education and retail had the highest increase in wage & hour cases.
• Discrimination increases where highest in education, financial services and retail.
• ERISA cases were highest in the Midwest and retail and engineering/construction sectors.
• Age discrimination cases rose the highest in education, financial services, retail, and technology/communication.
• Privacy cases were most common in California, but were generally a smaller percent of the overall cases.
• For small companies discrimination was the biggest issue followed by wage & hour. For big companies the reverse was true.

The costs associated with dealing with these cases, excluding settlements often exceed $50,000 per case and almost a quarter of the time exceed $100,000. For a small company that can be devestating. The areas that cost the most to deal with are race, sex and wage & hour cases.

What are we to conclude from these facts and figures? Well the overall conclusion of the report is that companies are going to be spending more on litigation in 2010. Other conclusions that I reached are:

• Education is having some difficulty. That arena made it on just about every list. Anyone have a reason for this? Suggest some.
• Small businesses probably need to do alot more training and education to both supervisors and employees, with race and sex discrimination still being the big expensive issues.
• There is still alot of misunderstanding of the Fair Labor Standards Act, which has only been around since 1938. My experience has been that many companies unknowingly and knowingly violated the FLSA.
• The recession is probably driving alot of this litigation. As people are let go and then have difficulty finding work they start grasping at straws to provide income. One way to do that is to sue your former employer. All the TV ad lawyers will tell you that.

How can you avoid some of this litigation increase? Three things pop to my mind.

1. Understand the laws, train supervisors on the laws, train HR on the laws and abide by the laws. (I can hear all the bitching and moaning about compliance now.)
2. Document that training, document your decisions, especially your compensation decisions (Ledbetter requires it) and document your actions with employees.
3. Treat people with respect and dignity, even when you are firing them for gross misconduct. People are more likely to sue you when they feel like they have been mistreated.

So there you go. As Jon concluded in his blog post about this topic "What does all this data mean for your business? Your legal budgets will likely increase next year. The question you need to answer is whether you want those funds to pay to defend lawsuits, or to proactively audit your internal personnel and employment practices to limit your litigation costs?" I vote that you be proactive! And of course I know a good consultant that would be more than happy to help you. LOL. 

Getting the Most Value from a Conference: The Marketplace is Where It Is AT!

I have returned to the office from having attended the SHRM-Atlanta Fall Conference in Atlanta, Georgia. The conference was pretty well done. As in all conferences there were a number of topic tracks you could choose from. I spent the majority of my seesion times on compliance issues ( I know that is so out of character for me, LOL). I knew most of it, but it doesn't hurt to hear what might be new. So there was some value there.

But the real value for me was derived by the time I spent in the marketplace. The value is found in three places in the marketplace. First was reconnecting with people I had not seen in awhile, both attendees and vendors. As much as you would like to stay in touch with people it is hard to do so in the course of the day-to-day routine. So meeting an old friend or acquaintence wandering around or staffing a booth is always a pleasant event. In doing so I catch up on what they are doing and where they are in the world. If I happen to see two at one time I try to be a "connector" for them and introduce them to someone they have not yet met. This follows along with the keynote address on Netweaving, presented by Bob Littel.

The second value derived is connecting with someone I had not previously met. I made several new aquaintences at this conference, either through an introduction or by walking up to a vendor and sticking my hand out and introducing myself. You never know where that introduction may lead.

The third value is learning what vendors are offering these days. As a consultant I try to be a resource for my clients, and not in just things that I can offer. So hearing what is being offered, what is cutting edge, what is new and exciting is invaluable to me. If you aspire to be strategic in your organization you have to have some foresight. Foresight is gained by doing research and the best way to do that research in the most convienent way possible is to walk around a conference marketplace. Yes you may have to listen to a sales pitch, that is ok. Knowledge comes at a price. It will not kill you. Plus, you have an opportunity to get some great "swag". Pens, cups, and other gizmos that always make a conference fun.

So the next time you attend a conference make an effort to spend time in the marketplace. Make an effort to meet the vendors and learn more about what is going on and available outside of your office. If nothing else reward these vendors who pay big bucks to be there, it helps keep your cost of attendance down.

The Carnival of HR: Unbelievable Learning Opportunity

This months version of the Carnival of HR is hosted at Jon Ingham's Social Advantage in his post The HR in the Social Business Carnival. The learning opportunities are unprecedented. We are talking use of social media, strategic HR, recruitment, networking, bad HR, good HR, snooping on employees, answering job seeker questions, and an  the intrguing title of  What keeps American HR Managers awake at night: the thought of bare legs. (The picture is an attention-getter.)

So, make some time and plan on alot of click-throughs. You will feel like you just completed your Master's degree in HR when you get done.

Good Advice: Dealing With H1N1 in the Workplace

The folks over at Benefit Buzz published some good advice and raised alot of questions on dealing with the Swine Flu in your employee population. So I direct you to Flu Prevention: Mostly Common Sense but do your benefit policies support it. Make sure you read the comments as well. Some very good information in there. I raised the issue that this will most likely be a FMLA event for many of you. Are you handling paperwork on a timely basis? Busy time.

Another issue may be your "continuity" plan. Who is in place to do the work? Are people crosstrained? If not how are you going to fill the gaps? All very good things to prepare for.

Stay healthy!

EEOC Is Making a List and Checking It Twice and It Isn't Even Christmas Time Yet

Here we are in the middle of October. The end of the year is rushing toward us, probably faster than we want it to. The Halloween decorations will be down in the retail stores and they will be putting the "ThanksChristmasGivingDay" decorations up and Santa will appear in the malls. The song that features the words "..he's making a list and checking it twice" will be blaring on the radio and over the store speakers. (Did that reminder of how close Christmas is make you wince?)

Well there is already one group that is making a list and checking it twice and it is NOT Santa. It is the EEOC. A One Minute Memo from the law firm SeyfarthShaw, LLP arrived in my email this morning entitled EEOC Takes Aim at Companies Policies Limiting The Duration of Medical Leaves. (click on the title to see the pdf) The opening line for this document is "Recent actions by the U.S. Equal Employment Opportunity Commission (EEOC) have signaled its intent take a more aggressive approach in enforcing the Americans with Disabilities Act (ADA). One employment practice that the EEOC is specifically targeting involves company medical leave of absence policies that place limits on the amount of medical leave."

When the ADAAA (The Americans with Disabilties Act Amendments Act of 2008) became effective on January 1, 2009 it was evident that, with the broadened definitions of disability and the requirement for an active accommodation discussion, more lawsuits would be filed against employers. And this is becoming true. The SeyfarthShaw memo goes on to say "Over the past two months, the EEOC has also filed a number of pattern and practice lawsuits on behalf of employees of large employers alleging that the employers violated the ADA by rejecting extensions of medical leave as a reasonable accommodation for employees with disabilities. The EEOC asserts that any employer that maintains an inflexible maximum leave policy, which it will not extend or otherwise modify in order to accommodate individuals with disabilities, is unlawful." And along with this statement a warning from the EEOC was issued "Acting Chairman of the EEOC, Stuart J. Ishimaru, highlighted the administration’s increased focus on ADA enforcement, noting that these cases 'should send a wake-up call to corporate America that violating the American with Disabilities Act will result in vigorous enforcement by the EEOC.' EEOC Regional Attorney John Hendrickson confirmed the EEOC’s position that policies that 'set arbitrary deadlines for returning to work after medical treatment unfairly keep disabled employees from working.'"

So what does this mean for HR? It means you need to review your policy and make sure it it up to date. You need to make sure that if someone asks for an accommodation you engage in a vigourous interactive process that is documented. And you need to realize that an extension of a medical leave will probably be seen as a reasonable accommodation.

The big question yet unanswered is: When will an extension be considered unreasonable? This will probably only be decided by a court case. Which one of you out there wants to be the test case?

ISM Number Seven: Ugly-ISM

Discrimination against the physcially unattractive has a long history. It has been written about for ages, as far back as Aristophanes’ play, The Assemblywoman, a Greek play about Athens being taken over by women and their attempts to even society out by making ugly people mate with beautiful people. The carnivals that roamed the country used to have sideshows that featured the bearded lady, or Siamese (conjoined) Twins, or some other "freak of nature" that was sure to facsinate and repulse people at the same time. The Elephant Man, Joseph Merrick, was one of the more famous ones, even having a movie of his life made starring John Hurt.

More recently we have had the popular movie Revenge of the Nerds and the series of knockoffs it spawned. And currently running on prime time TV we have Ugly Betty. All of these shows have as there theme the disadvantages of being physically unattractive. Real research has shown that less attractive people make less money and have fewer job opportunities than attractive people. The research was unsure if this was discrimination or if the fact that the more attractive people developed better social skills and more confidence that less attractive people. Body image, as mentioned in my FATISM post, plays a big role in how people feel about themselves.

The movies and TV shows people overcoming these difficulties. But I am not sure to what extent that actually happens. If you start off in life with less opportunity due to your physical appearance do you ever really have a chance to overcome that disadvantage? We would like to think so.

From an HR standpoint there is no law that forbids discrimination based upon ugly. At least none of which I am aware. There may at sometime be such an attempt, but Kurt Vonnegut's Harrison Bergeron, first published in 1961 showed the darkside of trying to be too politically correct. As the plot summary states "In the story, social equality has been achieved by handicapping the more intelligent, athletic or beautiful members of society. For example, strength is handicapped by the requirement to carry weight, beauty by the requirement to wear a mask, etc. This is due to the 211th, 212th, and 213th amendments to the United States Constitution. This process is central to the society, designed so that no one will feel inferior to anyone else. Handicapping is overseen by the United States Handicapper General, Diana Moon Glampers."

The best HR solution is to have a culture of civility and to focus on job performance. Forget about artficially trying to make things "equal".

Should Recruiting Get the Boot?

There is alot of discussion about how to change HR ranging from "trash it completely" to "I am ok with the way it is." I am in the middle. I am not ready to dismantle the HR department. I don't think you can. But it can and should change in a number of arenas. HR people need more cross training in business and in their company's business in particular. For that matter business people, the other managers, need more cross training in HR. It would be an eye opener.

Thinking along those lines I thought a good place to start would be in recruiting. Alot of people complain about HR and the recruiting function. Contingency and contract recruiters always avoid HR and try to get to the functional manager. The functional managers are always complaining about slow the in-house recruiters are in finding people. And in-house recruiters actually see themselves as the "non-HR" side of HR, more the sales and marketing wing of HR.

So lets give recruiting the boot from HR. Make recruiting the responsibility of the functional departments. HR can train them on interviewing, the laws they have to abide by (as if they would) and give them the proper format for an offer letter. Make each department have a recruiting specialist reporting to the functional manager. Eveyone will be happy then. The outside recruiters will have someone to deal with that "actually knows the job." Managers will have control on the speed of the search and the cost of the search.

HR can then do that administrative and compliance stuff, because after all that is what we are supposed to do best. We will sign up those new employees and then hand them back to the hiring department. Everyone is happy. (Edited comment... I was being very sarcastic here.)

BTW, those functional departments will also be responsible for handling the EEOC suits and contractual violation lawsuits that are filed. After all HR had nothing to do with it, so don't come crying to us.

What do you think? Do I have a winner here?

ISM Number Six: GayISM

According to a group of historians, who filed an amici curiae brief in a Texas lawsuit, discrimination against the Lesbian Gay Bisexual & Transgender (LGBT in Wikipedia) community is a 20th century phenomenon, particualary of the 1930 to 1960 era. During that time workplace discrimination, and discrimination in general, was widespread. In the Eisenhower administration companies with contracts with the federal government were encouraged to ferret out and fire all their gay employees. Starting in the 1960s as civil rights became a bigger issue attitudes about LGB orientation started to free up.

In 1998, President Bill Clinton signed Executive Order 13087 prohibiting discrimination based on sexual orientation in the U.S. government, excluding the military (Don't Ask Don't Tell), but including all businesses that have contracts with the federal government. Attitudes however, have not been changed as much as some people would hope. A study conducted by the Williams Institute of the University of California in 2007 showed that gays and lesbians still report a high percentage of discrimination in the workplace. Gay men make 10% to 32% less in salary. Transgender individuals are dealt a bigger blow with high rates of unemployment. (For further information see the study.)

For private sector employers there is no current federal law prohibiting discrimination on the basis of sexual orientation. However, there are 17 states, the District of Columbia, and 180 municipalities that have legislated protection against sexual orientation discrimination. There is proposed legislation in the U.S. Congress called the Employment Non-discrimination Act (ENDA) which would make discrimination based on sexual orientation AND gender identity part of Title VII protection. Proponents feel they have the votes to pass the bill and there may be action on this bill later in 2009. If  you wish to follow the debate there is a blog called Transgender Workplace Diversity that is following ENDA. Right now Healthcare may be  the bigger issue.

Many companies all ready include sexual orientation protection in their company discrimination policy. I have never worked for a company that openly discriminated against gay and lesbian applicants and employees. But I am fully aware that many companies may have those issues. But without personal experience I would like to bow to those that have and solicit some advice.

Given that ENDA has a decent chance of passing within the next two years how should companies prepare? If a company does not have a policy in place what would your recommend? And a BIGGER issue to ask about is how do you deal with a transgender employee? I know restrooms are always an issue for employees that may be in transition. Anyone have advice to others?

(Picture of the promotional poster of the move Brokeback Mountain borrowed from Wikipedia.)

HR is Dead: Some Mourn, Some Celebrate and Others Say "WHAT??"

There has been a very lively discussion about the death of HR being argued on several blogs, most notably at Laurie Ruettiman's Punk Rock HR where she posted HR is Dying: Yes or No? and at Mike VanDervort's the Human Race Horse where he posted HR-Not Dead Yet. These two posts brought a lot of reaction that was wide and varied. Some celebrated that HR was dying. Some said a vehement NO. Many said the field needs to be revamped. Many identified what is wrong with HR and others offered some solutions.

These two posts are very thought provoking and MUST be read by anyone in HR. Read the comments and add your own. But most importantly learn from these posts. Reflect on your situation. If you are in the "dying" camp what do you suggest will take HR's place?

If you are in the "needs improvement" category how would you restructure things to get the improvement?

If you are in the "HR is just fine" category, well I suggest you reread these two posts and the long comment strings.

I personally don't think HR is dead or dying. I do think it needs to morph, just not quite sure how, but I am working on a plan.

ISM Number Five: ShortISM Nobody Likes to Be Looked Down on

Short people got no reason

Short people got no
Short people got no reason
To live

They got little hands
Little eyes
They walk around
Tellin' great big lies
They got little noses
And tiny little teeth
They wear platform shoes
On their nasty little feet

In 1977 song writer Randy Newman penned and recorded "Short People". It was a song about prejudice. It was a hit that caused alot of controversy. Some people found it funny, some found it offensive. People today still are arguing over it. (See the comments below the lyrics printed here.) It was supposed to be a statement about prejudice in general but the fact that height was selected telling.
 
In the U.S. we do "worship" height, up to a certain height anyway. Studies have shown that taller people, particularly men, generally earn more and are more successful than shorter people. A study in the Journal of Applied Psychology found that "...someone who is 6 feet tall earns, on average, nearly $166,000 more during a 30-year career than someone who is 5 feet 5 inches--even when controlling for gender, age and weight." There were a number of possible reasons for this, including,

• More confidence on the part of the individual
• Higher (pun not intended, but accepted) levels of self-esteem
• Perceptions that taller people are more leader-like
• Perceptions that taller people are more authoritative

The differences seemed to be greater in jobs that required social interaction, such as management, sales, and service positions.

An additional finding was that shorter men were the objects of bias more often than shorter women. However, in my observations there are obvious careers that are closed to shorter women. You will find no runway models that are 5'2", regardless of their beauty.

There are certainly no laws that prohibit discrimination on the basis of height, unless of course selecting on the bases of height without a bona fide occupational need leads to adverse impact on a protected class. Requiring someone to be 6' tall just for the heck of it will screen women and hispanic and asian candidates out. So it is always best to understand job requirements.

I personally always wanted to be 6 feet tall. I thought I was 5'11" until one day my doctor measured me at 6 feet. I did not question the accuracy of the measuring tool, I just adopted the measurement. LOL I married a woman who is 5'2 3/4". She is careful to put in the 3/4". She too wanted to be taller. That desire for both of us to be taller must have its roots in how society reacts to short.

So what about it all you "shorties"? Have you felt the bias? Has it had any effect on your career? Have you found it harder to reach the rungs of the ladder?

Next ISM up will be GayISM followed by UglyISM. Any others you want to suggest I explore?