Happy Birthday, tHRive!

Today is a big day!  Today, tHRive Law & Consulting turns one.  In just the past year:

Human resources and employment law are ever-changing and exciting.  Our work touches nearly everyone, making it incredibly meaningful and challenging.  This is why I love it.  I can’t think of another area of business or law I’d rather be in.

tHRive Law & Consulting made it through one of the most significant milestones of any start-up – the first year.  I could not have done it without the support of so many and the confidence of my HR tribe.  For that, I am eternally grateful.  Thank you!

Now, onto the challenges of year two!

Photo by Markus Spiske on Unsplash

Free Speech & What You Can Learn

Question:  You’re a recruiter.  You have a promising candidate who has successfully been through a couple of interviews.  You sit down and google his name.  The results show a picture of a white supremacist rally with his face in the crowd.  What do you do?

Much has been said over the past ten days about free speech in the workplace.  While there have been many reminders that free speech doesn’t really extend to the private workplace, an undercurrent is stirring.  The complaint has been that people should be able to say whatever they want without any consequences to their way of life.  If it is unfair for someone to get fired after supporting a white supremacist rally, frankly, my dear, I don’t give a damn.

Today, we are blessed and cursed that the world has become more transparent.  This is all thanks to social media and a 24/7 news cycle.  Depending on the privacy settings, we can see what people were up to ten years ago.  We can look at their Twitter page to see their “off the cuff” statements about the world, their coffee selections, and frustrations with a particular airline.  All of this is good information for employers.  Imagine these typical concerns when hiring that can be answered by media:

  • How will this candidate respond to stress? A rant 18 months ago about a delayed flight that when on for six tweets each with escalating hatred could be a good indicator.
  • Will this candidate be a good representative of our company? An Instagram post of her doing a keg stand in a company t-shirt could be okay for a beer distributor, not so great for a Mothers Against Drunk Driving chapter.
  • Will this candidate be a positive influence? Chronically negative Facebook posts complaining about everything from her car, her roommate, her dog, her etc. could all indicate a Negative Nelly who could become a toxic employee.
  • Is this candidate passionate about the job? Tweets sharing articles about her job and what that job will look like in the future are excellent indicators of passion.

All of this gives employers a more complete picture of a candidate.  Social media and news websites can share a great deal of information that can reduce an employer’s risk too.  Googling a candidate can show you postings of violence or discriminatory comments that every employer wants to avoid.  It can show intolerance that when brought into the workplace can create liability under discrimination statutes or other liability like negligent hiring.

Here’s what I recommend all employers do – google candidates.  Look at what you can.  (Don’t breach any privacy settings though.)  When you do it, follow these steps:

  1. Decide what will disqualify a candidate well in advance. At the initial intake interview, ask the hiring manager what on social media or in the news would disqualify the candidate.  You can have standard disqualifiers, like violence, bad grammar, bigotry, etc., but there may be a few disqualifiers for a specific job.
  2. Make HR do it. HR is particularly aware of unconscious bias and may not be a decision-maker.  For these reasons, HR can compare the disqualifier list to what they find in a google search in as neutral way as possible.
  3. Wait as late in the process as you can. Googling all 600 candidates for a particular position is a waste of time.  Google when you’re down to your last few candidates.
  4. Ask the candidate. I know this may be shocking to some, but you should ask a candidate about what you find.  You could have the wrong person.  The candidate might have a good explanation.  Even if it is something for which no reasonable excuse exists (e.g. bigotry), by asking you get the much needed feedback to the candidate.  This does not have to be confrontational.  Just ask for their side of the story. On occasion, giving someone a second chance may be appropriate, but you’ll never know unless you ask.

If the “fictional” recruiter above discovered a picture of a candidate wielding a tiki torch at a white supremacist rally, the recruiter should feel comfortable moving on to another candidate.  Employment at-will has given employers’ the ability to move on.  They should use it.

I will fight for anyone’s right to free speech. Discourse is important to our way of life. That said, I will also fight for a company’s right to have consequences for that speech.  Employment and labor law have defined the limits of free speech in the workplace (talking about working conditions, wages, etc.).  While it is important to have all kinds of viewpoints in the workplace, no workplace should have to tolerate hatred, bigotry, or other sentiments that one gender or race is superior.  Period.


h/t to Ali McGinty for her review, smarts & co-teaching!
Photo by Vinicius Amano on Unsplash



Time to Put Away the Blankets


Spring has most definitely sprung.  It’s almost summer!  We don’t need extra blankets on our beds anymore!  While blankets keep us warm and make us feel safe in a cold world, blanket policies are dangerous and in at least three occasions, they’re downright unlawful.  So while we’re packing up the extra down comforter, let’s look at packing up these three blanket policies too.

  1. All employees with XYZ medical conditions can’t do XYZ job. A heart attack is a big deal, but not all heart attacks are the same.  Some mean stents that do not stop driving while others require open heart surgery that lay the victim up for months.  Having a blanket policy that prohibits all heart attack victims from doing a certain job denies employees the opportunity to explain their own condition and engage in the interactive process the ADA demands.  While it’s true that some conditions will disqualify employees every time, do the individualized process for each employee who presents with the condition.
  1. We don’t employ felons. Employers conduct criminal background checks for all sorts of reasons – reducing workplace violence, reducing the risk of negligent hiring, etc.  The temptation exists to not hire anyone with a felony.  However, the EEOC takes issue with this given the number of incarcerated minorities.  Just like the medical conditions, the EEOC requires employers to do an individualized assessment of whether an individual with a felony conviction should be hired.  This analysis involves the Green factors: 1) the nature of the job, 2) the nature of the conviction, and 3) the time between the crime (or end of incarceration) and application.  While it may be true that you’re never going to hire an accountant with an embezzlement conviction, deal with this on a case-by-case basis.
  1. We can never accommodate a level beyond the FMLA-mandated 12 weeks. The EEOC has litigated this issue several times.  With the ValleyLife case and guidance issued last May, the EEOC has tried to make the point that employers must engage in the interactive process after FMLA to determine if the employee needs even more leave.  Employees have to show a need for the leave, but a hardline cutoff will get an employer in trouble.

The EEOC wants employers to treat employees and applicants like the individuals they are, talking with them about their individual circumstances and needs before dismissing those circumstances and needs summarily.  Dealing directly with these is sometimes hard, it may mean an employer takes a chance on someone in close cases, and it means we leave the comfort of that blanket policy.  But, it’s spring now.  We don’t need the blanket.

Image by Kelly Sikkema from unsplash.com

Latest From RecruitingDaily

This week, I’m out at the American Bar Association Section on Labor & Employment Law’s National Symposium on Technology in Labor & Employment Law.  (I’m not kidding, that’s the name.)  I’ll be chatting with both the Equal Employment Opportunity Commission and the Federal Trade Commission on people analytic issues.  Look for more on this conference next week.

While I’m away being an employment law nerd, please take a look at the latest from RecruitingDaily – Batteries Not Included:  5 Employment Law Lessons from Tesla’s Electric Slide.  The author’s okay.

Post-Election Knowledge & Action

So it’s over.  While employment lawyers are spit-balling what President-Elect Trump will do, here’s what I know:

  • As a candidate, his tweets would render him ineligible for employment according to recruiters.

Regardless of how you voted, this matters. Discrimination and harassment are against the law even if the makeup of the EEOC changes.  (If Commissioner Lipnic is appointed Labor Secretary, President-Elect Trump will be able to fill three vacancies in the next two years).  Employers must combat discrimination or face costly investigations, litigation, and the PR nightmares that accompany them.

During the election, employers struggled with how to handle political conversations in the workplace given the negative rhetoric.  After the election, the struggle continues.  Respect, tolerance, and the work should and will continue to be the focus.

This focus is important, but finding the right messaging is hard.  Tim Cook’s letter to Apple employees following the election embraced all of the tech giant’s employees and encouraged unity.  Grubhub’s CEO asked employees who believed in the discriminatory rhetoric of Trump’s campaign to resign after first being criticized for what appeared to be a request that all Trump voters resign.   Each employer must find, and then strike, the right tone for its own culture.

I’ve spent the last three days struggling to understand why the friends and family I love and admire could look past the racism, sexism, bigotry, and cruelty to vote for Donald Trump.  Their votes struck a deep and sincere fear in so many, including me.  I have found solace in two things: (1) my little men know how to treat everyone with respect and embrace our differences, and (2) many employers know to do the same things.

Now, all of us, including those voters who looked past the nastiness even though it doesn’t fit their own beliefs, need speak out against the racism, the sexism, and the bigotry to have a constructive, empathetic conversation about what this election means for our workplaces and our country.