Relationships Fail

I’ve been a bit of a Donna Downer over the past two weeks.  With 15 harassment/respectful workplace training sessions, I have repeatedly explained the following:

Relationships fail at an alarming rate.  Think of all the relationships you suffer through before you get married.  Could be a lot, right?  Then, only 50 percent of marriages last.  So if you start a relationship at work, it might not last.  Are you ready for that?

Fifteen percent of relationships start at work.  This means that employers – and probably more than a few HR folk – wring their hands over what could happen with a relationship at work.  They may be worried about harassment, favoritism, and the distraction.  But they are also worried about the break-up.  Will the couple be professional?  Will they be petty?  Will their harassment and retaliation policies be invoked?  There are all sorts of worry.  Here’s what I’d like us to worry about.

Professionalism.  When we’re dating someone, we’re not professional.  We don’t keep physical contact to handshakes.  We may (overly) use emojis in emails and messages.  We share secrets, gossip, and vent about work stuff with our significant others.  These are all examples of behavior that is rarely “professional.”

Confidentiality.  Being in a relationship at work may mean we’re sharing sensitive and confidential information with someone who should not have the information.  If one of the couple is in payroll, processing bonus checks before bonuses are announced and shares what his partner is going to get before the announcement, this is a problem.  When we’re in the relationship, we believe we could trust our partner, yet people make mistakes.  Information goes farther than it should.  People find out about decisions before we’re ready to share them and

Harassment.  When couples get too touchy-feely in the workplace, others are uncomfortable.  As Black Widow once told Captain America, “Public displays of affection make people uncomfortable.”  When others are uncomfortable, harassment policies come into play.  It is not unusual to see another employee complain of harassment, especially when they believe (rightly or not) that favoritism is rearing its ugly head.

Chain of command.  When a relationship involves a manager and one of her employees, everything gets more complicated.  There will be allegations of favoritism.  If (when) the couple is in conflict with each other, it may (will) affect their working relationship.  Some of my clients prohibit these kinds of relationships, and I don’t blame them.  We may change the reporting structure, transfer one to a different shift or department.  The risks here given the imbalance of power are significant.

With those concerns, some employers resort to love contracts.  Please don’t.  Love contracts give the appearance that the employer is dictating the terms and conditions of the romance.  And, with the piece of paper, we look even more like we’re heavily monitoring the relationship.  Not a good look.  That said, HR and a manager can certainly have a conversation with the couple about their responsibilities to be professional and avoid the appearance of conflicts of interests.  This conversation should happen.  It even should be documented by HR, but please don’t have a love contract signed by the couple.  We want to be human at work, not overlords.

Despite some of the content of this post, I’m a huge fan of love.  We go into love with big eyes, big hearts, and bushy tails – as it should be.  When that love happens at work, there’s a new level of complexity where we have to be careful.  Call your friendly neighborhood employment attorney.

 

Photo by Kseniya Petukhova on Unsplash

Man-Bashing Training

Question:  Do we vilify men in harassment training?   

Think about that for a moment.  Do we use more man-on-woman examples?  (Probably.)  Do we need to change this?  Yes.  Harassment training is for everybody because everybody could harass.  According to a recent poll, one in seven men has experienced harassment at work. So, we can’t ignore men and their experiences just because so many women have similar experiences.

It is possible (and maybe even likely) that we’ve created an environment surrounding harassment training that we’ve alienated men or have come across as attacking them.  If this is the case, we should be criticized.  And, we should do better.  Here’s how I think we can do this:

Know our audience.  Every training should be customized to the workplace.  If the scenarios don’t feel real, the training won’t have an impact.  Because we have men in our workplaces, we can’t exclude their experience (and fear) from our training.  We should address it, and give a workable framework on what we expect from them.

Start with respect.  Often in trainings, I hear the statement, “I can’t even compliment a woman anymore.”  This comment comes from a man, usually over 40, who is sitting with his arms crossed, angry that he even needs to be in the room.  I turn to him and say, “There’s a difference between ‘That dress is very nice on you’ and ‘That dress hugs you in all the right ways.’”  He nods, and if I’m lucky, he chuckles a bit.  I then say, “We’re here to talk about that difference.”  That difference is respect.

For all of you labor lawyers cringing at this, listen up!  We live in a society where respect is under a near constant barrage.  We can’t operate in workplaces where respect and integrity aren’t at the core of what we are.  Without respect, we don’t get innovation.  So, we should make respect the cornerstone of our training. Our employees want respect.  They expect and deserve respect.  Starting our training talking about respect is what we must do.  If every conversation was respectful, we wouldn’t have harassment.

Have diverse examples.  Women-on-women harassment happens.  Men-on-men harassment happens.  So, we should have diverse examples.  Some of my best examples – examples that result in the most discussion – are man-on-man and woman-on-man.  We want to have a discussion and a bit of uncomfortableness.  Because we learn when we experience and are at least a bit uncomfortable, the discussion has any chance to really make a difference.

Use the whole scale of harassment.  Include examples of calling someone “sweetheart” or “man candy.”  Talk about staring, dirty jokes, and racial epithets.  You can talk about kissing, hugging, and even assault too, but ignoring the subtle stuff ignores where most harassment starts.  We don’t want this.

Ask, “what would you do?”  We should put our employees in the uncomfortable position of asking them what they would do.  You may be surprised by the responses.  Then, we should explain what we want them to do.  We don’t have to change their personalities to get between a harasser and his/her victim, but we should at least explain who we want them to tell.

Harassment training should mirror the tone of our workplaces.  It should set expectations and be meaningful for employees and managers.  It should make our employees contemplate their conduct without making them feel bad.

One more point:  Ladies, we don’t get to objectify men at work.  I’ve heard the argument that men have objectified women for a long time, so women should get to objectify men as a matter of fairness or even that they like it (uff da).  But like India has to grow green while we polluted for decades, we have to do the right thing.  We can’t objectify them either.  Enjoy a Magic Mike movie, but you can’t bring the poster into the office.  Ok?

This evening, I get to talk about trends in harassment training.  I’ve very excited (and a more than a bit nervous) about this.  Eliminating man-bashing will be one of the trends along with bystander and civility components, manager focus, and welcomeness elimination.  Any others you think I should talk about?

Photo by Nicholas Green on Unsplash

Die Annual Performance Review Die

Client calls.  Asks if they can fire Jerry for performance reasons.  The first (seriously, the very first) question I ask is, “what do Jerry’s performance reviews say?”  Experience has taught me that performance-related terminations usually have a homegrown enemy – the employee’s previous annual performance reviews.  What if we could eliminate the enemy by doing it better?

No one likes performance reviews.  Employees lose sleep the night before a review meeting.  Managers hate completing all the forms and fear having uncomfortable conversations.  HR turns into nagging mother-in-law types trying to track down managers to get all the forms turned in so that performance increases can be made.  No one likes this.

Performance reviews are rarely done well.  Most typically, the reviews are so vague they are meaningless.  They focus only on recent events and not performance over the entire year.  They are chockfull of bias.  Sometimes, a manager pretends he lives in Lake Wobegon where all the employees are above average.  Because we in HR are focused on handling the next fire, we don’t have time to push back on managers who do not do performance management well.  So, a poorly completed review gets stuck in a personnel file until I ask about it when the client wants to terminate.

Even when the termination is completely warranted and lawful, it’s the performance review that hurts.  The termination is going to have to get explained.  I’m confident that I am not the only employment attorney stuck explaining why an employee was terminated for bad performance just weeks after a positive review.  (We attorneys should form a secret society complete with a secret handshake.)  Our explanation is often couched in terms of a rapid performance decline as explained by a manager who “wanted to be nice” in the review but had observed poor performance that resulted in a lost customer, order, and so on.  The explanation by both the attorney and the manager is expensive for the company.

These are just a few of the reasons I want the annual performance review to die.  I’m not advocating for the end of performance management – quite to opposite.  I want more frequent, meaningful reviews for everyone.  Here’s my wishlist:

  • Conversation coaching.  Managers need to have difficult conversations with employees about performance.  Most managers, and particularly new managers, have not learned how to have these difficult conversations.  HR pros are conversation coaches, so we need to coach our managers on how to have these conversations.  Or, we need to get our managers the training and skills necessary.
  • Frequent discussions.  I love one-on-ones when they’re done right.  Brief meetings that discuss how projects are progressing that also discuss how the employee is doing are vital to successful businesses.  With this, managers get a sense of what roadblocks they can remove, and employees get critical feedback on how to do better.
  • Transparency.  People need to know how they’re doing.  Managers need to tell them.  Use examples.  Explain how things can improve.  Show.  If employees know where they stand, they may be able to understand why you’re firing them and not believe it is for some unlawful reason.
  • Recognize.  It isn’t just poor performance that needs to see the light of day.  Good performance does too.  Managers need to know how to champion those performers with potential as well as coaching those who just haven’t meet expectation quite yet.
  • Documents.  (Insert collective reader sigh here.)  Yes, feedback discussions should be documented.  I don’t care you document provided you document and I can get it later when we need it.  You can use the functionality of your HCM or you can have managers email themselves brief synopsis of each conversation.  With the conversation coaching, coach managers how to document as well, including how to remove references to protected class status, leave use, or other items that could get an organization in trouble.

Employees deserve to know how they are doing.  More importantly, they want to know how they are doing.  That’s what a great performance management process can do – get employees what information they need to do their jobs well so we can do our business well.

 

Photo by Tim Gouw on Unsplash

 

 

Sexism is Unlawful Too

Did you know that sexism is against the law all by itself?  Individuals can be sexist without sexually harassing someone?  Much of the #MeToo has focused on the ravages of sexual harassment  #TimesUp has focused a bit differently, focusing on the lack of advancement of women and wage gap issues.  This distinction is important.  While conduct that could constitute sexual harassment is often included in a sex discrimination cases, sexism by itself is also against the law.

Title VII’s prohibition on discrimination “based upon sex” includes many things (and arguably more things).  This “because of sex” provision in the law makes both sexism and sexual harassment unlawful.  It is just as unlawful to engage in sexist behavior as it is to sexually harass someone.  Both are demeaning, discriminatory, and dastardly.

Let’s start with sexual harassment.  Under the law, sexual harassment can be:  (1) quid pro quo which conditions employment (or advancement) on sexual favors or enduring sexual conduct; or (2) unwelcome conduct or comments that create a work environment that is intimidating, hostile, or offensive.  (We’ve dealt with welcomeness in another post.)  Often, sexual harassment cases include sexual touching, like sexual assault, but they don’t need to.  Frequent comments about someone’s sex life or sexual organs (including breasts) can create a hostile work environment.  Moreover, sexual harassment can be unlawful even if it has nothing to do with sexual desire.  It only has to do with sex and/or sexual stereotypes.

Plain, old-fashioned sexism can also cause a hostile work environment that is unlawful under Title VII.  Sexism is unlawful when enduring the offensive conduct or comments is a condition of employment or the conduct or comments are severe or pervasive enough to create a work environment is intimidating, hostile, or offensive.  Sounds familiar, right?  It should.  Yet, sexism doesn’t need to have anything to do with the act of sex – just a person’s sex.

Take for example demeaning comments like “A woman’s place is in the kitchen,” “Women should always be barefoot and pregnant,” “Grow a pair” or (my favorite excuse for derogatory behavior) “Boys will be boys.”  These comments are designed to demean women.  Period.  When these comments are pervasive (a/k/a happen a lot), they create a work environment that is hostile to women and unlawful.  When the comments are paired with conduct, such as only assigning men to do lifting tasks or segregating the sexes to handle particular work, the employer can (and should) be on the hook for discrimination.

These derogatory comments are often coupled with other signs of sexism.  This includes disparities in pay, lack of advancement, and even underrepresentation of women throughout an organization.  All of these need to be tackled even though they’re hard.  And, all need to be tackled even if no allegations of sexual harassment exist.

When an HR pro gets a report of sexism, she should treat it just as she would a report of racism.  Could the comments be demeaning to women?   Could the comments be offensive?  Could the conduct be an attempt to separate employees by gender?  Are other issues – like pay and representation – affected by sexism?  The question of whether any sexual activity – comments or conduct – occurred does not need to enter into the analysis unless it was reported too.  Just because sexual behavior is not included doesn’t mean the employer gets off scot-free.  Sexism is just as unlawful all by its lonesome.

 

Photo by Giacomo Ferroni on Unsplash

 

 

Harassment & Being the Boss

In response to the #MeToo and #TimesUp movements, state legislatures and localities are taking action, including requiring sexual harassment training and policies that explain where employees can turn if they don’t believe their employer has handled the situation appropriately.  New York’s new law requires that policies explain that employees will be disciplined for engaging in harassment and – perhaps most importantly – managers will be disciplined when they allow harassment to happen.

Did you read that?  Managers will be disciplined for letting harassment continue. This is where NBC, CBS, and nearly every employer who makes the news has allegedly failed – a manager knew about the behavior and didn’t make it stop.  This, ladies and gentlemen, is why manager training is critical to the end of harassment.

The law focuses on managers because managers are the employer.  They make crucial decisions, like hiring and firing.  They sign contracts.  Often, the buck stops with them even if they are in the dreaded middle management.  This means managers are responsible to take action when they get wind of harassment, but often, managers don’t understand the crucial role they play in preventing and stopping harassment.  As legislative bodies take more and more action, here are some of the lessons you can incorporate into your training now:

Managers must know the work environment they create and manage.  For a manager, the word “manage” is in her title.  So, she must actually manage.  Merriam-Webster defines the verb “manage” as “to direct or carry on business or affairs.”  No one can effectively do this if she doesn’t know what is going on or doesn’t understand how her people interact.  So, dear manager, know your people.  Also, set a tone of respect with your people.  Be the example.  (You can have bad days – pobody’s nerfect – but when you make a mistake, acknowledge it and move forward.)  While the “doing” might be more fun, the “managing” is your job.  When you know the work environment, you can take steps to prevent harassment.

Managers have the power to do something.  A manager can’t throw her hands up when she learns about possible harassment.  Harassment requires her to dig in, tackle the problem, and sometimes, make some really difficult decisions.  Organizations may differ on what exactly they want the manager to do – report to HR, step in and separate the people, suspend the alleged harasser, discipline, etc. – so train the manager on what to do and who to talk to when she needs help.  (Remember, managers need to know enough.)  In manager training, go through scenarios, talk through what the organization would want the managers to do.  This will invite participation, just the kind of interactive dialogue the EEOC and state agencies want in harassment training.

There is no such thing as an official complaint.  A whiff, a rumor, seeing someone uncomfortable or crying, a conversation between a manager and an employee that’s “just between us” all trigger action by an employer.  In order to have a defense to harassment claim, an employer must take “timely and appropriate action” when it learns of harassment, so if a manager learns of harassment, she puts the employer on the hook to take action.  Waiting for an “official” complaint is not only poor management, it creates liability for an employer.  No manager wants to do that.

You will get in trouble for harassing too.  Because the law treats managers as the employer, when a manager engages in harassment, the employer can automatically be liable for the harassment.  Managers have to understand this.

Harassment hasn’t always been clear, and the courts haven’t helped much.  That said, we have an ethical obligation to help employees and managers understand it and how we define respect in our workplaces.  The difference between “You look nice today” and “That dress hugs you in all the right ways” is respect.  One statement is a respectful compliment.  The other can be characterized as harassment.  Will your managers step in when they hear the dress one?  Will they know what to do?  Your managers absolutely need to know what to do at the moment the statement is made or when an employee tells what happened.  So, train them.  Please.

 

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FMLA Screaming (Part II)

Have you pondered the question from yesterday’s post?  Agree with me that there are things you can do and things you should do?  That should do includes approaching FMLA with come compassion and not being super strict with FMLA’s limitations, right?

Yesterday’s post covered some of my tips for the start of FMLA.  Here are a few more for during leave.

Preparation for leave is essential.  Hopefully, the employee knew he needed to go on leave and was able to prepare by giving his manager his passwords, updating her on the status of projects, and plan to turn over work.  Sometimes, this isn’t the case.  An accident, premature delivery, or quick onset of a serious illness can take the employee out of the workplace leaving a manager without the benefit of the advanced notice.  What do you do in these emergency situations?  Leave the employee alone.  The employee is already ill or injured himself, worried about a family member, or facing the crushing reality of being a parent to a new baby.  The status of the sales agreement with customer XYZ is not top of mind.

Let technology help you with not knowing what’s going on.  Get access to email and other systems to help piece together the status of projects without bothering the employee.  Need a password?  Work with the software vendor or your own IT team to recover a password if necessary.  Change permissions so the manager or another team member can see things.  Again, don’t bother the employee.

If the leave is intermittent and the employee’s need for leave could come as a surprise on any given day, plan for what that looks like.  How will the employee handle the sudden need to be off?  Come to an agreement with the employee about his work when this happens.  Does this mean the employee spends the last 10 minutes of each day sending a quick email on the status of things?  Maybe.  (Would that be a nice thing to have anyway even if he didn’t need leave?  Yep!)  Setting expectations is a manager’s job.  If the manager laments every time Juan takes an intermittent day, well then it’s the manager’s problem for not preparing for this – not Juan’s.  (I know, I know, this isn’t a great one-liner to share with the manager, but you all are good coaches, you’ll soften the message.)

Don’t surveil the employee.  Seriously.  Don’t send someone out to watch the employee’s house to see if he is cleaning his gutters or fixing a deck.  Don’t monitor his social media accounts for signs of a vacation.  Assume the employee needed the leave and is using the leave within his or his family member’s health care provider’s instructions.  If something fishy starts happening, you’ll learn about it.  Don’t waste your time and resources beforehand.

When the employee is ready to come back to work, don’t forget the ADA.  Yes, the ADA can be an even bigger headache for employers.  Yes, the Seventh Circuit recently held employers might not have to give more leave than the FMLA requires.  However, the ADA places a reasonableness standard on employers.  Employers are required to consider reasonable accommodations, including leave, for each requesting employee on a case-by-case basis.  Don’t get consumed with “well if we give it to Larry, we’ll have to give it to everyone else.”  Remember, the ADA requires case-by-case analysis.  For more return-to-work tips, check here.

Lastly, remember that communication is really important at the end of leave.  You may want to know if any restrictions are necessary.  You may want more confirmation as to what day.  For requests like these, remember K8’s rule of three.  Ask at least three times in writing before you assume the employee is abandoning his job.

I get that the FMLA is tough.  I get that it can be frustrating for HR and managers.  However, it can be a godsend for employees.  It’s supposed to give them peace of mind that their job will wait for them if they need to be out for a bit.  Use this fact as a part of your compassion and empathy game. The employee will thank you for it.

 

 

Photo by frank mckenna on Unsplash (Great, happy picture, right?  Perfect for a Friday!)