Begging for Leadership

Story time! When I walked into U.S. Embassy Lusaka, Zambia, I walked into an employee benefit nightmare.  Our locally engage staff (nearly all Zambians) were told one thing about their retirement benefits, but then received something much different and much lower.  While my manager had been working on this for a bit, it was squarely my problem to deal with and I was immediately taken as the enemy by much of the staff.  I had to manage up with all my might and advocate for employees while I could not tell them how hard I was trying.  I towed the company line of “this is what the benefit is until we can get it changed.”  Once it got changed and benefits massively increased, management got the glory.

This is what HR does or at least should do every day.  We work hard on behalf of employees while sharing management’s words.  It’s a thankless job often with zero glory, but when employees reap the benefit of our hard work, a swelling sense of pride comes over us.  When it doesn’t, everyone suffers.

For me, this is why it is critical to have an industry association that gets how tough it is for us and is willing to take on the burden rather than following business organizations like sheeple. An association that both represents us to the world, but also advocates to help us make life a little easier for the employees we serve. Sometimes taking hard positions even if it could cost our employers more money or take away some of the shortcuts we’ve been used to for so long.

For the past three years, I’ve watched the Society for Human Resources Management fail HR, saddling up to an Administration desperate to take rights away from our LGBTQ community, strip our workers of their ability to work, and ignore or “all lives matter” our Black and Brown colleagues. I’ve voiced my concerns to SHRM directly at Special Expertise Day before SHRM National 2019, I’ve spoken with representatives, I’ve asked folks to contact their representatives, I’ve tweeting my concerns repeatedly, I’ve spoken to Board Members. I believe I’ve done everything in my power to make change inside the organization. So, it’s time to go outside of it.

I prepared a Change.org petition asking for the bare minimum from SHRM:

  1. SHRM says “Black Lives Matter.”  SHRM can hold all the diversity summits, symposiums, webinars it likes, but until it recognizes that Black lives actually matter, all of that work means little. 
  2. SHRM advocates for the LGBTQ community.  SHRM did not file an amicus brief asking the U.S. Supreme Court to find that sexual orientation and gender identity are protected classes under Title VII.  SHRM has not expressed even a whiff of concern as this Administration as advocated that business should be fire or not serve our LGBTQ friends and colleagues.  SHRM said nothing as the Administration issued a final rule stripping our friends and colleagues of health benefits.  Instead, SHRM’s president enjoyed watching the State of the Union with Congressman Mark Walker of North Carolina – a man adamantly opposed to same-sex marriage.

This petition does not ask for an ouster in leadership, it simply asks for some leadership. For our Black, Brown, Indigenous, immigrant, LGBTQ friends and colleagues, silence is violence. We should not be silent anymore. After all, as a very good friend once said, “You shouldn’t be in Human Resources if you don’t believe in human rights.”

If you would like to join the hundreds of folks who already have, please click here.  Thank you.

HR’s Response to Racism In Viral Form

Social media is one helluva thing.  It can rapidly spread information (both fact and lie), keep us connected to friends and family around the world, and put a glaring spotlight on our abhorrent behavior.  Like Amy Cooper’s.

If you missed Monday evening’s social media, Christian Cooper, a black man, was out watching birds in New York’s Central Park when he saw Amy Cooper, a white woman, out with her unleashed, rescued Cocker Spaniel.  Christian (because there are too many Coopers in this story to keep everyone straight) asked Amy to leash her dog per the Park’s rules and the many signs posted near the area.  What happened next is subject to this video and represents a potentially lethal cocktail of lies, threats, racism, white privilege, and police involvement.

Within just a few hours, Amy was identified as a Vice President for Franklin Templeton, an investment firm, and placed on administrative leave.  She turned her dog over to the rescue shelter where she got him.  Not surprisingly, the video went viral while #AmyCooper and #FireHer trended in tandem.  And, perhaps surprisingly, Franklin Templeton’s website appeared to crash.

Imagine for a minute that you’re in HR for the organization Amy works for.  What do you recommend? 

Put her on administrative leave? Absolutely, leave is exactly the right thing to do immediately, especially on a holiday.  Leave buys everyone some time to cautiously go through what happened and prepare next steps.

Investigate?  Investigate this particular incident?  No. The video is pretty clear, and she’s admitted her conduct.  A decision can be made right now.  However, should you investigate whether Amy’s behavior has impacted employees in the organization.  No doubt about it.  You have to.  Because Amy appears to have supervisory authority, her attitudes towards race may have impacted decisions she has made involving performance reviews, hiring, firing, training, etc.  Going through those decisions is going to be a must.  Not only will the video be Exhibit A in any discrimination case brought against Franklin Templeton that involves Amy, it will also impact the employees she supervises and works with.  Some may believe that the racism she displayed in the video affected her decisions and will want to know from you that you’re taking it seriously while determining if it actually has.

Talk with employees?  Absolutely.  This incident is going to affect your workplace.  Black and brown employees are going to be particularly affected and will be paying close attention to how the organization responds.  Let’s assume the organization wants to be antiracist.  A message from the CEO must happen and happen quickly.  Open forums (even over video) should take place so you can hear from employees, and employees should be encouraged to bring up concerns in any format they choose.  Amy’s managers (and potentially every manager) should hold meetings with staff talking about the organization’s commitment to being antiracist.  You can casually check-in with other staff too, touching base with them. Check-in especially with staff who you believe would participate in a forum if it was held in-person but who don’t appear at the virtual forum.

Remind employees about your policies?  You betcha!  You’re going to remind employees about your harassment and discrimination policies (which no doubt would cover the kind of conduct in the video).  You’re also going to remind employees about your policy about talking to the media, namely that they are not authorized to speak for your org unless specifically told they may.  If you don’t have this policy, that’s okay, but make sure you tell employees they cannot speak for the org.

Fire her?  You have no other option.  Leave was the right decision Monday evening, but you have to recommend her term today.  Is this a trial by media?  Of course.  Did she admit the conduct?  Yes.  Is it affecting your workplace?  Your servers crashed, your organization is in every major newspaper around the globe.  Employees are outraged.  Customers are likely outraged.  You have no other viable option.  Sensitivity training isn’t going to cut it. Keeping Amy will forever bind her acts of racism to your employer brand.

Now, imagine you’re in HR for the organization Christian works for.  What do you recommend?

Administrative leave?  No.

Investigate?  No.

Talk with employees?  Absolutely.  Talk with Christian.  See how he’s doing.  If he’s okay, tell him you’re happy he is.  The media spotlight is going to be glaring at him for a bit, so ask him what you can do to help minimize any negative impact.  Does he want to you to share with the media that he is your employee and that he’s great or not-so-great?  Does he want you to remain mum?  Ask him.  Your support is important.  You should also hold other meetings with employees, like open forums to talk about the incident and how it might affect them.  Managers should be equipped with talking points about how the organization is going to respond.

Remind employees about your policies?  Yep!  Same reminders as above.

Fire him?  Nope.  Christian did nothing wrong.

Remember, Justine Sacco?  The lady who tweeted a racist sentiment before getting on flight to Johannesburg?  She was fired mid-flight.  Amy is going to get fired here too.  And, that’s the right decision.  What’s more important though is how you in HR respond to Amy’s conduct.  How you address employees.  How you give them the opportunity to share their feelings and ideas on how to be better.  Not giving employees the opportunity to share, not addressing the situation will make everything worse, for a long, long time. 

Photo by camilo jimenez on Unsplash

Return to Work SAFELY Recording

Hello all!

Marc and I shared a bunch of information on returning to work in today’s webinar, including whether temperature checks and welcome back potlucks are good ideas, how cubicles can be spaced, and much, much more.

If you’re in the market to “open” back up and bring people back to the office, take a watch:

 

If you’d like to hear more of our banter, take a listen to the Hostile Work Environment Podcast wherever you get your podcasts.  AND, contact us if you have questions!

COVID-19 April 10 Webinar

Happy as it can be Friday!  Below, please find the recording of today’s webinar.  This webinar is different in that it goes through common scenarios for paid sick leave and expanded FMLA under the Families First Coronavirus Response Act with tips on how to document and track the leaves.  It also contains checklists to use for documentation purposes. If you’d like the slides, please email me directly at kbischoff@thrivelawconsulting.com.

Also, here is the info sheet for employers:  PSL eFMLA One Pager  Feel free to add your own contact information to it to use with your employees.

Now, for the love of all things holy (regardless of denomination or not), go wash your hands and stay safe out there!

Coronavirus Confidential

Yesterday, Charlie in Accounting had the sniffles.  He hasn’t come into work today.  Tomorrow, he calls you in HR and tells you that he tested positive for coronavirus.  Does this bit of information change what you’ve been doing?  I posted a poll on Twitter yesterday, and here’s the result:

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Over the past couple of weeks, we’ve learned a lot more about the coronavirus and how to prepare for a possible pandemic.  We know we should be washing our hands, not touching our faces, preparing for folks to work from home when they can, researching business interruption insurance to see if it will cover payroll if coronavirus requires us to shutdown, reevaluating if we can afford giving pay increases in light of financial outlooks, and communicating to employees how to prepare.  All of these are important steps to take.

It’s awesome to be prepared.  It is also important to look at our obligations as an employer.  As a worry-wart employment lawyer, one obligation leaps out when we start talking about coronavirus – the obligation to keep medical information confidential.  In a normal, non-pandemic situation, we would not be able to share that Charlie has cancer, arthritis, or any other medical condition.  A pandemic doesn’t change this.  If Charlie tests positive, we can’t share that with employees.  The fact that we know shouldn’t change what we’re doing.  Prepare as though it will hit your neighborhood so that when it does, you don’t violate the ADA.

Now, you might be thinking about moral obligations.  Shouldn’t we be able to tell Suzy because her elderly mother lives with her or Jamal because his kid gets sick a lot?  The answer is still no.  We should tell employees now that when coronavirus gets to our area, they will need to make decisions, like working from home or taking increased PTO, as they are necessary and that we’ll be doing everything we can to keep our workplace safe and healthy, like telling people not to come to work when they’re sick.  Yes, this is hard.

Review the EEOC’s pandemic guidance.  It’s from 2009 but recently re-upped given coronavirus.  Here are some key takeaways for you:

  • You can and SHOULD increase infection-control practices like handwashing and increased cleanings of offices and surfaces
  • You can’t take every employee’s temperature as they enter your offices unless the CDC tells you to
  • You can’t ask employees if they have a disease that makes them more susceptible to the virus
  • You can’t require employees to get a vaccine as religion and disability may prevent it for some employees
  • You can tell employees not to come to work when they’re sick and you can send them home

Instead of waiting for Charlie to get tested, let’s get prepared.  Here are some great resources that may be helpful for you:

  • Check out the University of Minnesota’s CIDRAP center for all the news and maps that you might need
  • Check out Dan Schwartz’s blog for updates on how to prepare
  • Joey Price has a webinar on Tuesday (3/10) for HR on how to prepare
  • HR Bartender posted some tips
  • Listen to Heather Kinzie and I talk about practical tips on how to handle coronavirus on Thursday (3/12) at 4 pm CDT/1 pm AK – no registration necessary!
  • Jeff Nowak has a webinar on Thursday (3/12) on preparedness, the ADA, and FMLA

Now, go get some more soap!

Sometimes, the Law Sucks

This evening, three individuals lost their jobs – through reassignment or termination – because they truthfully testified under oath in a congressional hearing regarding their knowledge of unlawful behavior.  While the law recognizes that termination because of testimony about illegal activity is unlawful, sometimes, the law doesn’t have a good remedy.

For example, a woman is sexually assaulted at work.  She reports the assault, and the bad actor is arrested and terminated.  If the bad actor was a co-worker with no supervisory responsibilities or prior history of assault, the woman doesn’t have a claim against the employer regardless of how egregious the assault was.  She could possibly have a workers’ compensation claim, but no claim for harassment due to the affirmative defense the employer would likely use to its advantage.

Another, a black man is forced to resign after his employer did nothing to stop near-constant harassing conduct.  He finds a better paying job right away, so he has no wage loss damages whatsoever.  He may have some emotional distress damages, but he never saw a therapist, has no medical records establishing severe emotional distress, and is sleeping well now.  When plaintiff lawyers meet with him and evaluate whether to take his case, they decide his damages are not sufficient to cover their costs given it’s highly unlikely that they will get through trial.  So, for business reason, they don’t take his case as many others like them.

Yet, one more.  Ninety women have come forward to tell their stories of Harvey Weinstein.  Yet, only a few have claims within the statute of limitations and have convinced prosecutors to try him for his sexual misconduct.  Others did not bring claims within the statute of limitations of the few civil claims they may claim.  For most women, there is no recourse.

So, yes.  Sometimes, the law doesn’t have an appropriate remedy.  Sometimes, it just plain sucks.  If you’d like it not to suck, vote, talk with your legislators, and remember to vote.

 

Photo by Element5 Digital on Unsplash