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!

The NLRB’s Bad Decision

About a third of the work I do is workplace investigations – everything from culture reviews and employee misconduct to harassment.  I love them!  Recently, the National Labor Relations Board issued a new decision that greatly affects employer policies around investigations.  Essentially, the Board overturned a decision that allowed employees to talk about an ongoing investigation.  Now, employers can prohibit employees from talking about an investigation.  In fact, employees can now get fired for talking about it.

I’m not going to lie.  I really don’t like this decision.  I know, I know.  My perspective is the polar opposite of nearly every other investigator out there.  But hear me out.  I’ve got two reasons why this decision is bad for employers and employees.

First, #metoo took off when women talked with each other about their experiences.  When Jodi Kantor, Megan Twohey, and Ronan Farrow started meeting with women in Harvey Weinstein’s sphere, the more women they spoke to, the more harassment they found.  Once one person came forward on the record, it was easier for others to come forward and share how much a monster Harvey really was.  Now, there are 90 women who have come forward.  The same thing happens in companies that don’t end up in headlines.  When one person comes forward, others follow suit.  (Pun not intended.)

Harassment targets fear speaking out alone, and intentionally, harassers isolate and separate their targets so they feel all alone and that no one will believe them.  When targets know someone else has had a similar experience and they’re willing to report it too, they may even come forward together.  So, knowing about others and talking with them gets targets to report.  Something employers want, right?

Second, during an investigation, it is incredibly common to have reluctant witnesses – those who give you one-word answers and are all jittery when they sit across from you.  You listen to them and know they’re not sharing everything.  No matter how much prodding you do, they clam up.  If the investigation lasts long enough, the witness may come back, ask to speak with you again, and this time, they share more.  They may even share everything, including their experience being a target of harassment or provide the evidence you’ve been looking for.  When you ask why the change of heart in coming forward, the answer is often that they spoke to someone else and they felt they needed to “do the right thing.”  It makes it more difficult to evaluate them as a witness, but if they didn’t speak with anyone, we’d never get their information.

Now, other investigators have argued that they don’t want employees to chat with each other because they could “sync” stories or lie and that would interfere with their investigations.  I get that, but I’d rather have employees come tell me everything knowing that they’re not the only ones sticking their necks out.  And, if employees sync their stories, the investigator will hear the phrases suggesting they’ve colluded and are not genuine.  We’re trained in this.  We have experience in this.  We see it a lot.  We should be able to handle this separate from a policy prohibiting employees talking that puts their jobs at risk.

In their new decision, the Board argues that we can’t offer employees confidentiality in what they tell us if the employer doesn’t prohibit employees from talking about the investigation.  But no investigator says, “Well, Suzy told me XYZ” – we don’t share what people tell us.  In most cases, I don’t even share names with decision-makers.  If I told decision-makers exactly who said what, retaliation would be a real possibility.  So, I tell folks I interview that I don’t share names, and this comforts them, freeing them to open up.  If they talk with coworkers, they’ve picked people they’re comfortable with.  I share the important facts with decision-makers that they need to make any decision they need to.  So, the Board’s argument is hooey.

The National Labor Relations Act protects employees from discipline (including termination) when they get together to talk about the terms and conditions of employment.  This was the basis of the decision the Board overturned.  In some ways, the Board’s new decision feels like a response to the #metoo movement and an attempt to keep employees from talking about their experiences by allowing employers to have strict policies against employee talking about an investigation.  And, this is a shame.  Employers, trust your investigators to handle the information you do not need to adopt a policy in accordance with the Board’s new decision.  I recommend against it.

 

Photo by Steve Halama on Unsplash

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

Saying Something Calculus

Full disclosure:  While visiting Consulate General Jerusalem in 2011, Vice President Biden heard it was my birthday and then kissed me on the cheek.  At the time, it was weird.  At times, it was a cool story to tell, but it remains weird. 

“Why didn’t she say something?”  “She should have said, ‘don’t touch me.’”  “We need to have a conversation.”  These are all common responses to women who have shared their uncomfortable interactions with a variety of powerful men – including Vice President Joe Biden.  Look closely at them.  Note how all of them place an obligation on the target of the questionable behavior and never on the person engaging in that behavior.

That is why these responses are flat-out wrong.

I get the argument for the responses.  How is someone supposed to know that their behavior is inappropriate if no one tells them?  Are we expecting everyone to be a walking encyclopedia (or Wikipedia for you youngsters) of cultural norms?  Most certainly not.  That said, you do need to use some emotional intelligence and plain-ole common sense and treat everyone with respect.

Emotional intelligence is “the capacity to be aware of, control, and express one’s emotions, and to handle interpersonal relationships judiciously and empathetically.”  Being aware of other people would suggest that when you’re going in for the hug, you see the look of panic on the individual’s face.  Controlling your own emotions means you don’t kiss a colleague when you successfully complete a project because we don’t kiss in the workplace.  Handling interpersonal relationships judiciously is understanding that not everyone is a hugger.

Common sense – albeit rare contrary to the very term itself – is defined by being aware of social norms and how they change.  Yes, #metoo has changes our cultural norms.  But the movement hasn’t changed all social norms.  Some are still not understood by all.  The way to know what those social norms are is by being aware of what happens culturally.  Read or watch the news.  Read a book.  Watch the news.  Meet with friends and family.  This is how cultural norms are formed and learned.

The target of the inappropriate behavior is doing her or his own calculus.  If I say something here, how will the person respond?  Is it worth sticking my neck out to say “what you did made me feel uncomfortable”?  Doing this mental calculus quickly often results in saying nothing because of ease, expediency, and social respect.  Remember saying something always has a cost.  I knew that stopping the Vice President to tell him that he shouldn’t kiss people would be awkward and potentially off-putting for a visit already fraught with political tight-rope walking, so my calculus was to not say something.

Instead of putting the target in the crosshairs, we should focus on our own behavior.  For this, the most important thing is to lead with respect; respect of the personal autonomy and beliefs of the people you encounter.  In some cases, it would be inappropriate for a woman to touch a religious man, so when I reach out for a handshake, I might receive a polite bow in response.  I am certainly not offended by his decision to stay true to his faith.  And, because I am conforming to a social norm by reaching for a handshake, he is unlikely to be offended by my gesture as well.

One thing I’m leery of is prohibiting touching all together.  If we tell everyone to stop touching, aren’t we turning into robots?  I’ve got some do’s and don’ts on hugging and kissing:

  1. Do know the person you may want to touch before you do it. When you know someone – even if you’ve only interacted online – a hug may be a totally appropriate greeting.  But that’s only because you know them.  People give you clues on whether it is okay to touch.  A stranger?  No hug and definitely no kiss.  By the end of your meeting, it may be okay to hug goodbye.  The only time to kiss goodbye is at the end of a date (and maybe not on the first date).
  2. Do understand that people are all different and people may feel differently day-by-day. Some people will never hug.  Others may hug all the time.  Some will hug occasionally.  Just like we all process grief differently, we all process hugs in different ways on any given day.  A hugger might be having a bad day and the last thing he wants to do is hug.  Be open to this possibility and watch for the clues your emotional intelligence is picking up on.
  3. Don’t assume you can touch everyone because you’re powerful. It is simply not true that “when you’re a star, they let you do it.”  You may be more likely to get away with it because of the power dynamic at play, but no one forgets when someone famous inappropriately touches them.  In fact, if you are in a position of power, like a manager, leader, or “influencer,” it may be appropriate to dial down your normal behavior to hug knowing that others may be made even more uncomfortable because of your status.
  4. Don’t kiss at work.   Not even if your significant other comes to the office.  It’s weird.  (One exception, if you’re in a foreign country and it is socially acceptable to air kiss upon meeting.  Please note the air kiss – no lip contact required.  No lip contact.)

During a recent respectful workplace training, I was asked for the line.  “When does conduct cross the line?”  As I told the gentlemen, I wish I had the answer.  If there was a black/white line, it would be easier for all of us.  However, people have always made things gray and squishy.  It will take our smarts and our hearts to continue to learn about people and make appropriate decisions.

 

Photo by Tim Mossholder on Unsplash

Two-Percent, Schmoopercent

Almost two weeks ago, the Washington Post published an article detailing the efforts of the U.S. Equal Employment Opportunity Commission to resolve workplace disputes over harassment and discrimination.  For past two weeks, the article has been nagging me.  Like really, really nagging me.

Out of all the data the Post reviewed, only two percent of the sex, disability, or retaliation cases had a cause finding, meaning the EEOC found cause to believe discrimination or harassment occurred.  In race and age cases, the EEOC found cause to believe discrimination or harassment occurred in only one percent of cases.  Does this mean that between two and one percent of the people who filed charges of discrimination actually have a case?  No.  It can’t mean that.  What do these numbers mean then?

The idea that “nothing will happen if I complain” is bolstered by these numbers.  If any reasonable person who believed they might have a legitimate case of discrimination or harassment read this article, will they still file a charge?  Still go through the stress and anguish of telling their story and waiting months and months to find out that the federal agency they turned to has nothing to help them?  Probably not.

The argument of “Discrimination has been solved and we don’t have to do anything about it anymore” is also bolstered by these numbers.  Yet, most of us know that discrimination and harassment are not solved.  Society still has problems with bias and microaggressions that seriously affect our ability to be a just and civil society and definitely, negatively impact our workplaces.  Yet, some jackass (yes, I meant to swear) is going to point at these numbers and say, “see, there’s nothing here.”

To give the EEOC some credit, they are heavily overworked, underpaid, and under significant pressure to turn cases over as fast as they can.  This means that the easiest thing to do is to try to get some kind of result (note the percentages in the teens for some sort of recovery) and then issue a no cause determination.  But the budgetary and staffing woes of EEOC are not the only reasons for these dismally low numbers.

Another reason for these dismally small numbers is the law.  The law has set an incredibly high standard for what actually is harassment and discrimination.  Employment lawyers joke that that every employer gets one boob grab or one n-word before the conduct is severe and pervasive enough to create real liability.  The joke is kinda-sorta funny because it’s kinda-sorta true.  An employer is not likely to be liable for discrimination, the microaggressions, the different treatment until it is really bad.

We have two choices.  One, we can change the law.  Some states are considering lowering the standard, so employees don’t have to meet such high bar to show discrimination or harassment.  (California passed this law, and Minnesota is considering it.)  By removing the analysis of severe and pervasive, employees may have an easier time proving discrimination or harassment pushing employers to take action sooner when confronted with inappropriate behavior.

Two, we can lower the bar ourselves.  We, as employers and HR pros, can set the bar at the level of behavior we are going to tolerate, meaning we can choose not to tolerate microaggressions.  We can choose not to tolerate a single boob grab or n-word.  We can choose not to tolerate the behavior that so many already believe is intolerable.  We don’t have to rush to terminate when communication problems are the culprit, but we can take action more often to make our folks comfortable to be themselves in our workplaces.

This is the thing about the law.  It is most often the floor.  We can do more.  We can say two-percent, shmoopercent.  We will look at every situation, every individual, and say, “You will be respected” and actually mean it by our policies, our trainings, and our actions.

 

Photo by Sebastian Pichler on Unsplash

Me & You Metrics

I wear an Apple Watch.  I have since they debuted in April 2015.  I love it even though I rarely use all of its functionality.  I track my calories burned, whether I work out, get all the notifications from Twitter to reminders to actually breathe.  (Little nugget – I have only missed my stand goal twice in nearly four years.)  I’ve metric-ed myself to death with Ive (my watch’s name).

Yet, I would never share all of this information with an employer.  You can tell where I’ve been, whether I went up a flight of stairs, or my heart rate at a particular time. You’d be able to figure out so much about me, my habits (good and bad), and could even use the information to determine if I’m a good employee.  (She sits too much when she should be chatting with customers or getting parts.)

My personal beliefs of biometrics are part of the reason I’m less-than-enthusiastic about recommending employers use them.  I love the idea of determining if there’s a better way to lay out a manufacturing floor, whether we could reduce real estate costs by encouraging hot-desking, and I’m even for handing out Apple Watches to employees for wellness purposes.  But I just can’t get endorse an employer gathering this data and then making employment decisions based on the data.

My biggest concerns surround privacy and the potential for misuse of personal health information.  Employers don’t get to know what I do off work provided it doesn’t affect the workplace.  If an employer knows, could I get terminated for spending too much time at a movie theater rather than reading business books?  What about not spending the night at my house but at a friend’s? Biometrics can allow data gatherers to be the Big Brother technology has often been portrayed as.

As for health information, biometrics are implicated by the Americans with Disabilities Act, Genetic Information Nondisclosure Act, and many state laws.  Imagine being an employee in a wheelchair where steps taken are not going to be tracked.  Does that mean that that employee is not going to be considered when the health data is aggregated into an analytic tool that determines who should be promoted?  Or imagine being an employee who struggles with his weight who has trouble meeting his step goals.  When his fitness goals are not met, does that mean he could be terminated, maybe even in an effort to reduce overall health costs. (This would likely be unlawful under ERISA, but that might not stop an overly cost-conscious employers.)

To this end, I recently went on XpertHR’s HR Podcast to discuss a new decision out of Illinois on biometric data collection and the possible impact on employers from coast-to-coast.  I encourage you to listen.  You can listen here.

Photo by Alvaro Reyes on Unsplash