Pens & Company Ink

Recently, I gave a presentation on sexual harassment to a group of compliance professionals from some of the largest organizations in the Midwest.  At one point, an audience member called me a Sexual McCarthyist because I said CEOs shouldn’t have relationships – even consensual ones – with anyone in the company.  Given the news out of Chicago on Sunday, let’s go over why.

When a CEO engages in sexual harassment, the organization is vicariously liable for the conduct  Citing U.S. Supreme Court case Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2284 (1998), here’s what the EEOC’s Guidance says:

An employer is liable for unlawful harassment whenever the harasser is of a sufficiently high rank to fall “within that class . . . who may be treated as the organization’s proxy.”

The Guidance goes further and lists individuals who could be considered an organization’s proxy, including president, owner, partner, and corporate officer – like a CEO.  Vicarious liability means the organization has no defense to a harassment claim and is automatically liable if the conduct was indeed harassment.

So, was the conduct harassment?  Well, let me take all of your hopeless romantic hearts and crush them.  Relationships fail at a remarkable rate.  Think of all the people you have to date before you find “the one” and then “the one” has a better-than-fair chance of ending in divorce.

Now, imagine you’re a CEO.  You have a significant amount of authority over everyone in your organization.  You start flirting with an employee.  The employee may feel that they don’t have the option to say no to a couple of dates.  Things start to heat up, but something is not right.  The employee feels they can’t break up for fear of losing their job or ending their career (like blacklisting, etc.).  So, even though they may have liked the attention at the start, they can’t stop when it turns ugly.  Now, the relationship is no longer consensual.  This is harassment.

Or, what if the break-up is consensual but now the CEO has to rate the employee’s performance?  The employee is afraid that the CEO will be vindictive or will treat them unfairly because of the break-up.  This could be retaliation.

The best thing an organization can do is prohibit CEOs (and other C-suite individuals) from having relationships at work.  Period.  Institute a policy.  Talk with the board and leadership.  Explain you will enforce this.  Then, if it happens, take action.  This was what happened at McDonald’s.  This is what happened at Intel.

As my grandfather said (to his 14-year-old granddaughter (see, I was made for this work)), “Don’t get your money where you get your honey,” and “Don’t dip your pen in the company ink.”  If you’re a CEO out there, take these idioms to heart.  Not following them could end your career.

 

 

Photo by Aaron Burden on Unsplash

The Law is the Basement

My house was built in the late 1890s.  It still has a dark closet that once functioned as a root cellar.  It’s now full of odd, rarely used cooking equipment, Christmas ornaments, and creepy cobwebs.  We now call it the punishment room as a threat designed to spur good behavior in my guys.  No one wants to be in there, but technically, it is a functional closet.

The law is often like that room.  It tells us the minimum of what is expected of us – what is the basement of how we can treat each other.  It’s functional but undesirable.  Just like my guys, no one wants to be in the basement.

But sometimes, the law isn’t even the basement.  It’s lower.  Much lower.  Never has that been clearer than today.  Today, the Supreme Court is hearing arguments in three cases involving whether “because of sex” protects individuals based on their LGBTQ status.  If the Court finds Title VII doesn’t protect the LGBTQ community, employers in 28 states will be able to fire someone because of who they are and who they love.  What’s really scary is that here is a real possibility the Supreme Court will find that the LGBTQ community is not protected.

What will this mean for employers?  I hope nothing.  I hope employers understand how stupid (yes, I wrote “stupid”) it is to discriminate on this basis.  Not only is it unlawful in many states – including Minnesota – it is bad for business.  At least one prominent study showed how LGBTQ-supportive policies were great for employees and business alike.  Being inclusive is the right thing to do.  Period.

The U.S. House of Representatives has passed the Equality Act that would protect the LGBTQ community regardless of how the Supreme Court finds.  But, Senate Majority Leader Mitch McConnell refuses to allow a vote on the bill.  It’s likely the bill would pass if it reached the Senate floor.  In the meantime, the message to employers is that Congress doesn’t care if you discriminate.

But you don’t have to.  Employers don’t have to do the minimum.  You can keep employees out of the basement.  We should treat each other fairly and kindly regardless of LGBTQ status.  Here’s hoping the Supreme Court does the right thing, and the Senate does too.

In the meantime, no one can define your worth.  You’re all worthy.  Sending love and hope to everyone today.

 

Photo by isaac jarnagin on Unsplash

Why Talking Remedies Is A Bad Idea

I get to do a TON of respectful workplace trainings, otherwise known as harassment training.  It is one of my favorite things to do.  However, a new requirement for harassment training irks me to no end.

It’s the requirement under California, Illinois, New York, and potentially more state laws that requires that we talk about the remedies available to harassment victims.  I don’t hate the remedies – victims of harassment are entitled to all the remedies out there and then some.  I just don’t like talking about them in training.

Why you ask?  Victims of harassment are already plagued with a seemingly endless list of reasons NOT to report harassment, including retaliation, exposing an embarrassing incident(s), fear of being judged about the clothes they wear, fear of not being able to pay their mortgage, rent, car payment, student loan, child care bills, etc.  Telling them about the remedies available to them, all of which could bankrupt the very organization they’re working for, adds an additional burden to a victim.  Victims of harassment don’t always want to bring down their employer – they want to bring down the harasser or at the very least, make the conduct stop.  They don’t want their friends to lose their jobs too.  Victims went to work for their employer because they believed in the mission, need the work, and want to work there.  Talking about the hundreds of thousands of dollars at play in a harassment lawsuit doesn’t provide comfort, it adds to the load.

In training, I’m doing my darndest to encourage targets of harassment to tell HR or any manager about what is happening.  Trying to reduce the burdens of reporting, encouraging co-workers to help, promising retaliation will not happen, and that HR is a safe place for them to go.  Taking a hard left to “your report could cost this organization tons of money” is halting transition without out much benefit.

The required remedies discussion was probably designed to scare harassers.  It should!  But by and large, employers are on the hook for the money, not the individual harasser.  The harasser is rarely held to account.  They may lose their jobs, but they don’t owe restitution to the victim or even the employer.  It is the organization and its employees who suffer most through the time and resources taken up by a lawsuit.  Yes, in many cases, the organization needed to do better to protect employees, but spelling out its possible demise is not going to convince a victim to raise their voice.

Employers need to do better without a doubt.  And, a good training is a great step.  Scaring victims even more is not the answer.  Dear Legislators, please understand this and let me do my job.  I really like it, and I’m pretty good at it.

End rant.  Thank you.

 

Photo by Gaelle Marcel on Unsplash

The Billy Graham Rule Discriminates

Last week, a Mississippi gubernatorial candidate refused to allow a female journalist to follow him on his campaign because he follows the Billy Graham rule.  The rule is that married men should not ever be alone with a woman to “avoid any situation that may evoke suspicion or compromise of [a] marriage.”

As a divorcee, I agree that trust is key to marriage.  However, if the trust between a man and a woman is so weak that he cannot be alone with a woman, then that isn’t really trust.  That’s fear.  As Jeremy White tweeted, the rule “presumes either: A) you can’t be trusted or B) women can’t be trusted.”

The Billy Graham rule discriminates against women.  Full-stop.  If a man cannot be alone with a woman, he cannot mentor her through a tough situation.  He cannot take her with on a business trip to a client site.  He cannot meet with her to give her a performance review.  As a result, the woman will miss out on significant business opportunities.  She’ll miss out on activities that are critical for her success and advancement.  She’ll be held back.  This is discrimination plain and simple.

As my friend, Suzanne Lucas advises, we should “flip it to test it.”  Instead of a woman, let’s say a man cannot be alone with a black man for fear that man will claim racism. No business trips, mentoring sessions, or performance reviews for the black man.  Or a Native American.  Or an Asian American.  Or a Latino.  Or a Jew.  Or a Muslim.  Or an older man.  We’d all agree that this would be discrimination on the basis of race, national origin, religion, and age, right?  (Readers – this is where you nod.)  The Billy Graham rule perpetuates the idea that men are only safe when they are with men like them.

Instead, we need to treat each other like humans.  We see women and everyone else as humans, colleagues, partners, and equals.  We don’t withhold support, advice, and opportunities for fear of a complaint; we treat everyone with respect.  Period.

 

Photo by Joshua Ness on Unsplash

Helicopters, Soldiers & USERRA

Yesterday, I had the super-cool pleasure of joining the South Central Minnesota SHRM chapter on a Bosslift as a part of Operation Employment.  What does that mean you might ask?  It means I got to ride in a Chinook to Camp Ripley to learn about how employers can better support our National Guard and Reserve troops.  As you can tell, I really liked the Chinook ride.

I also liked hearing from Lieutenant Colonel Rankin of the Second Battalion 135th Infantry Regiment, the Red Bulls, as he expressed his gratitude for what employers do to support his soldiers.  He explained his role in making sure soldiers know when they are likely to be deployed, when training will occur, just how many great skills his soldiers possess, and what employers can expect – all fascinating information coming from a man with a day job as a school superintendent.

Soldier sitting on lift gate

Employers have obligations to not discriminate against National Guard and Reserve troops under the Uniformed Services Employment and Reemployment Rights Act (USERRA).  It is unlawful to discriminate (i.e. not hire or fire) based upon an employee’s qualified service and retaliate when they need to take time off for their service.  Instead, employers are obligated to support leave and return employees to equivalent positions when they return from training and/or active duty.

Being activated is an incredibly stressful for soldiers and their families.  They may be away from their loved ones for weeks or months, causing disruption in child care, finances, general family life as soldiers may miss birthdays, holidays, and being there for the day-to-day celebrations and hardships of life.  Worrying about whether they will still have a job adds to what already might feel like crippling worry.  This is where we as HR professionals can help ease worry by explaining what we’ll do while they are deployed and what they can expect when they return.

A resource we can turn to is the ESGR.  As a part of the Department of Defense, ESGR’s mission is to support both employees and employers through deployments and re-entry into the civilian workforce.  ESGR has a resource guide for employers that can be helpful as employers consider a guard member or a reservist for a position or already employ one who is getting ready to deploy.  I highly recommend HR pros bookmark it.

Our armed forced protect our freedom.  Part of our duty is to make as easy as possible to be an employee and a soldier by supporting their service and their families.

Special thank you to Cassie Kohn, Laura Brady, and South Central Minnesota SHRM for putting this together.  I had a BLAST!

Images by me and Victoria McQuire (who really captured my essence disembarking off a Chinook.)

Deep Breaths about Wage Theft

As of July 1, 2019, Minnesota’s new Wage Theft Law will go into effect.  If you read anything about this new law, it is easy to assume it places many, many new obligations on employers.  But, like many things, take a deep breath.  The new law isn’t nearly as onerous as you might think.

First, the new law requires employers to follow old laws.  Employers have to pay employees.  Employers have to pay at least minimum wages.  Employers have to pay overtime.   Employers have to have paystubs with a bunch of information on it that specific how the employee earned pay (pay period dates, what is regular pay, what is overtime, what deductions are for, employer name, address, and telephone number, etc.).  None of this is new.  What is new is the amount of penalties that accompany failure to follow these laws.  Those have increased and failure to follow the law could include very real criminal penalties.

Second, if you have offer letters, much of the new “notice” requirements are already in your offer letters.  Start date, how much the employee earns, basis of pay (salary or hourly), when employees will get paid (weekly, biweekly, twice monthly, etc.), exempt vs. nonexempt status, any commission structure (if applicable), what shift the employee is assigned (if applicable), PTO or vacation and sick time accrual, deductions to pay, employer address, and telephone number – these should already be in your offer letter.  The only “new” pieces are when the first payday will be, any allowances (like meals and lodging), and an offer to put the offer letter in a different language if needed.

Third, when employers roll out new policies, you need employees to acknowledge them.  Prior to the new law, employers could roll out new policies without employee acknowledgements.  Now you need them.  To avoid piecemeal acknowledgements, it may be best to review your handbook annually and when updates are necessary, require employees to acknowledge the changes all at the same time once per year.  More frequent changes are going to require more frequent acknowledgements.  This could be a bit of a pain to both do and track.

Fourth, when you change wages, employees need to acknowledge those changes too.  For example, if Jimmy is going to get a raise, you give him a writing (email, letter, performance review) that his wages are increasing and have him acknowledge the increase.  Again, most employers already do this, but now it is mandated by law.

That’s it!  The Wage Theft Law looks like it could be hard to comply with.  But, in reality, it is not as big of a deal as it has been made out to be.  Take a deep breath, you got this.

 

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