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.

 

Photo by Brooke Lark on Unsplash

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!)

FMLA Screaming (Part I)

The Family and Medical Leave Act.  A great idea that causes many HR pros to scream, pull out their hair, and/or outsource their frustration.  So much so, there’s even a blog dedicated to it.  (Read it, Jeff is both funny and smart.)  Even though can be incredibly frustrating, it’s a fact of life that can be made easier by approaching it with a sense of calm and a smidge of empathy. This post includes some basic advice when dealing with FMLA issues.

First off, by in large, employees are not out to “game the system.”  Yes, we’ve all heard of FMLA/ADA/Work Comp fraud.  It is a thing.  However, most employees do not ask for leave to pull one over on their employer.  With that, let’s assume an employee who requests FMLA actually needs leave for herself or her family.  The need for leave is already distressing to the employee.  She is likely worried about her job, and she is also worried about herself or her family.  Focusing only on the impact to the employer will not support her needs in this time of emotional chaos.  Be supportive.

The employee may not know exactly what to do when she needs a leave.  So, she’s going to look at your handbook to find some information.  She will likely do this before she talks with HR.  Make sure your handbook is up-to-date, complete, and explains who to talk to about leave.  If she does not look at your handbook, she is probably going to talk to a trusted co-worker.  Hopefully, this co-worker will know just enough to tell her to talk to her manager.

Next, she will probably say something to her manager.  She might not say “leave.”  She might say “time off” or other words that indicate that she may need a leave.  This requires managers to understand the signals of a leave request, and this requires manager training.  Managers – especially new managers – need to know enough to understand what these signals are and what to do when they see, hear, or otherwise get an inkling that leave is an issue.  If they do, they will send the employee to HR.

Now that she’s made the request, HR needs to use the Department of Labor forms.  I joke when I’m speaking on FMLA topics that HR pros are not graphic designers.  Department of Labor makes the best forms for FMLA.  Nobody creates better forms.  More than 10 of my clients have made the mistake of using a vendor’s forms and not the DOL’s only to come to learn that the vendor didn’t have a very important question on its form that resulted in a loss of sleep, thousands in more settlement dollars, or confusion on the part of the employer and the employee.  Here’s the link to the forms.  Bookmark it.  One more tip:  Always go back to this page.  The forms get updated from time-to-time so the most up-to-date forms will be at this link.  Please do not print off 10-100 copies and stick them in a file cabinet.  Print a new set every time an employee requests leave.

Remember the cadence of the forms.  FMLA regulations set out when forms must be doled out and returned.  Understand these timelines and make sure you – the employer – follows them closely.  The DOL’s FMLA Employer Guide does a great job outlining these.  Bookmark it as well.

If an employee doesn’t turn in the forms on time, use K8’s rule of three (trademark pending) – request the employee return the forms three different times and document each of those attempts over a period of several days.  Send an email to her personal email.  Send a letter.  Send a text message (and screenshot the text).  If she still does not respond and is capable of responding (isn’t in a coma or otherwise hospitalized), then talk to your friendly neighborhood employment attorney.

Next, calm the manager by being proactive.  Managers can freak out about losing an employee to a leave.  They get nervous about how work is going to get done.  They worry about how and if other employees will be able to pick up the slack.  Go to managers with a plan.  Ask if they will need temporary help, an employee from another team who could step in on a temporary basis, or if another hire will be needed since the team was already overworked.  Approaching a manager with some options will help calm some likely frazzled nerves.

Tomorrow’s post will have some more tips on the FMLA, including what to do during the leave and preparing for a return to work.  In the meantime, consider this:  There is a difference between strict FMLA compliance that follows the letter of the law and being a bit more flexible with employees.  Relying on the strict letter may not seem fair to the employee.

Photo by Gem & Lauris RK on Unsplash

HR Tech’s Adverse Problem

While I totally loitered at the Society for Industrial and Organizational Psychology Conference (I was a presenter, just failed to register – oops), I’d thought a post on what we talked about yesterday and a bit about what’s happening at the University of Minnesota’s HR Tomorrow Conference today: adverse impact, why it’s important, and why you should care.

Adverse impact (known as “disparate impact” by the lawyers) is when groups of individuals described by a particular characteristic is negatively affected by an employer’s decision, selection tool, or policy when that decision, tool, or policy is neutral on its face or does not intend to actually have a negative impact.  For example, if an employer uses a psychological test that filters out African Americans, the test would have an adverse/disparate impact on African Americans.

The concept of disparate impact has been around for a long time.  The United States Supreme Court in Griggs v. Duke Power formally recognized the claim.  Since that time, the law has been debating many aspects of the claim, including what statistical models to use, does the doctrine apply if the rule intends to discriminate, how does impact different from treatment, and will the doctrine apply to all the HR technology out there.  While this post could go on-and-on about all of these questions, this last piece is really important for HR tech buyers, and the answer is probably.

We already know that lots of HR technology vendors, including the fancy-dancy stuff like artificial intelligence, machine learning, algorithms, etc., market their products as the only way to find the best candidates, identify problem employees, and make all your dreams come true.  When these technologies are used, their use could create a disparate impact.  How do we know?  Because we’ve already seen how these technologies discriminate outside the world of HR – see photo ID that classifies African Americans as gorillas, recidivism tools that increase prison terms for African Americans, etc., so it is highly likely that they could operate the same way when it comes to HR tech.  Arguably, HR tech has the potential to greatly impact because the decisions HR makes affect individual’s livelihood.

So what should we do about diverse impact?  While there are many, many things we need to do to limit the potential that the HR tech we use doesn’t discriminate, we should start with two things.  First, we have to know how the technology works and the data it uses to make recommendations.  This requires vendors to be open and honest with us, lose the marketing gloss, and really explain their products. Can they explain how the tech works?  Can they explain how the tech works on our organization’s data?  Could the data have bias baked in?  (The answer to this last one is probably yes, especially if we’re looking at hiring or performance data.  There’s just no escaping it.)  When vendors are transparent and honest about these issues, we can take more steps to mitigate any disparate impact the tech might have.

Second, we need to test and test and test to see if the tech creates the disparate impact.  Lawyers and data scientists talk about validation as the test.  For lawyers, validation means under the Uniform Guidelines for Employee Selection Procedures.  For data scientists, validation means how strong the correlations are statistically.  This definitional problem causes more debate and potential confusion.  So, we need to find vendors who understand, appreciate, and can articulate validation under both tests.  Because the HR tech world is a bit like the wild, wild west, it’s hard to find them. (Trust me, they’re out there.  I’ve probably met them or at least brow-beat them from a distance on this very issue.)

All that said, I want HR to understand and appreciate that these issues could exist and start playing an active part in fixing these issues.  While I’d love for everyone to trust each other, placing blind faith in a vendor is not in our organizations’ best interest.  Holding people accountable is one of the strengths in HR.  We should use it here too.

One final note, I love this stuff.  This tech is going to revolutionize how we do business.  I just want to do it in such a way that doesn’t create that much risk for our businesses.  Remember my pledge?

 

Photo by Patrick Lindenberg on Unsplash

Happy Equal Pay Day?

Today is Equal Pay Day.  According to Institute for Women’s Policy Research, white women make only 80.5 cents for every dollar men make.  The wages are even lower for Black and Hispanic women.  (Hispanic women will have to work an additional 232 years for pay parity!)  We all know that something has to be done about it.  So how is the wage gap going to change?

Salary History Bans.  According to HRDive, seven states and six localities have prohibited employers from asking candidates about their current or previous salary histories.  The theory supporting the bans is that if an employer sets an employee’s wage based upon what she previously made, the new employer may be perpetuating the wage gap.  If an employer can’t ask the previous salary history, then the employer will be setting the wage on either the market rate for the position or based upon what the employee desires – a question that is not prohibited.

For reasons that remain a mystery, some are vehemently opposed to salary history bans.  Michigan passed a law prohibiting any localities from enacting salary history bans while others have initiated a lawsuit to prohibit the law from going into effect.  Their arguments for asking the question and as such against the bans are stopping title inflation, salary histories actual verify previous performance, or we already have laws that prohibit wage disparity.  However, we still have significant wage disparity.  So if we can’t ask one question, will our entire recruiting process fall?  (Spoiler:  No.)

Yes, there are detractors to salary history bans.  They argue that salary history bans will hurt women in the long-run given our poor salary negotiation skills.  However, if we set salaries based on the market and our own payroll, then the job pays what it pays.  No negotiation necessary.  Try the Ellen Pao method.

Reinterpret Existing Law.  Yesterday – one day before Equal Pay Day – the Ninth Circuit Court of Appeals held that a candidate’s previous salary cannot be a defense to an Equal Pay Act claim.  Specifically, Judge Stephen Reinhardt (in what may be his last opinion) wrote, “To hold otherwise—to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum—would be contrary to the text and history of the Equal Pay Act.”  This decision is a big deal for a couple of reasons:  (1) an employee’s previous salary could have been used as a defense to a wage gap previously – this decision stops that, (2) the decision bolsters salary history bans, and (3) the decision limits employer discretion in determining pay to only job-related criteria for determining pay.  This alters the law in a way that may reduce the wage gap.

Market Rule.  I, like many others, encourage employers to use market rates.  This means that employers have to invest and participate in salary surveys.  That said, the benefit of paying the market rate without regard to what a candidate used to make levels the playing field for employers and candidates.  Employers can feel confident that they are going to find candidates and differentiate themselves from their competition based on workplace culture.  Candidates can differentiate between employers without regard to pay.  They can find the workplace that fits them best.

When it comes to the wage gap and Equal Pay Day is that we have to do better.  Use market rates, don’t ask salary history questions (on applications or in interviews), review your payroll to determine if gaps exist, and work with your friendly neighborhood employment attorney to help do the right thing.

If you’d like more information or to read some opinion on Equal Pay Day, check out Lilly Ledbetter’s take.

Photo by Sharon McCutcheon on Unsplash

More Ways Not To Fire

Last May, I offered my tips on terminations, including not firing via cable news ticker.  Apparently, my tips went unheeded by some prominent terminators.  So, in an update to that post, I offer some more tips.  (Warning:  This post comes laced with sarcasm.)

Don’t fire someone when they have a stomach bug.  When someone is vomiting or plagued with diarrhea, it’s considered bad manners to terminate them when they are on the toilet. Wait until you can see their face without invading a bathroom.  Heck, what you’re about to tell them might make them sick all over again.  Let them get past the first round of sickness.

Don’t fire someone within hours of his pension vesting.  The Employee Retirement Income Security Act is a real thing.  ERISA Section 510 retaliation claims are a real thing.  Section 510 states that it is unlawful to discharge for the purpose of interfering with the attainment of a right (i.e. pension).  If you terminate someone to avoid pension liability, it’s likely that a Section 510 claim is in your future.  This is on top of any claims the individual may have if he is in the public sector.

Don’t be mean.  The very act of terminating someone is already seen as mean.  Not many people want to work for a mean employer.  Mean employers have trouble finding people to fill roles.  Mean employers get nasty Glassdoor and Indeed reviews.  You do not want to be that employer.  Try to give the individual you are terminating as much dignity as possible.  Don’t let them find out via press release.  Be brave and do it face-to-face.  Anything else is seen as cowardice.  Post-it notes, emails, texts, cable news ticker, tweets, Slack message, etc. are all cowardly ways to terminate.

I don’t mind firing people.  By the time my clients call me, they have toiled with the decision to terminate, they’ve lost sleep over it, and have thought of all the other possible alternatives. So, I’m reaffirming their gut instinct and offering my theoretical airbags and seatbelts to the term.  I’m also advising them on how not to fire badly.  Please read all of my tips on how to fire and then heed them.

 

Photo by Jamie Street on Unsplash