Beyond Legal Risk

Harassment is a costly business.  The actual cost of a harassment lawsuit could include wage loss, emotional distress, civil penalties, and attorneys’ fees.  The actual monetary hit a company can take is not small.  In theory, it could put a business under.  But there is a much, much larger risk that employers need to understand – the loss of reputation.  The loss of reputation falls into two distinct yet related categories:  loss of customers and loss of employees and candidates.

Loss of customers (or vendors, suppliers, etc.) is not insignificant. Signet Jewelers lost significant revenue when women turned away from its jewelry stores after harassment and discrimination issues came to light.    When Uber placed a surcharge on riders headed to airports to protest immigration issues and followed closely by Susan Fowler’s blog post outlining the rampant gender discrimination and harassment at the ride hailer, Uber suffered mightily.  It lost revenue, over a quarter of a million users, and become under close scrutiny around the world.

A loss of customers does not just affect large companies.  Small and medium-sized companies who are embroiled in scandal can get shuttered too.  For example, a Charlotte, North Carolina eye doctor surrendered his medical license and filed bankruptcy after sexual harassment allegations came to light.  A tech startup (in the HR-space no less) can’t raise funds or keep valuable customers after its CEO resigned in disgrace following harassment allegations.  This idea that harassment allegations can’t happen here is a myth unless you actively and obsessively build a respectful workplace.

Keeping and finding talent is also a challenge for a company with a reputation problem.  Uber employees were looking for the exits after Ms. Fowler’s blog post.   Employee turnover is high when a bully or harasser is able to stay with a company as inappropriate comments or conduct is a sign of a bad corporate culture.  Recruiters have to work harder, explain more, and actively try to “sell” your culture rather than let your culture speak for itself.

These days with review sites like Glassdoor and Indeed as well as social media, candidates can also get a good sense of a company culture well before an interview.  Take this Glassdoor review.  The review states that this employee is “sexually harassed on a daily basis.”  Or this review that states that the owner “encourages a hateful and discriminatory environment[.]”  Or even this review on Indeed that simply says, “Do NOT Apply if you are female.”  By a Glassdoor survey, 70% of candidates read reviews before interviewing with a company.  Will the reviews you get effect who wants to apply and/or interview with you?

Today, the Weinstein Company is likely to declare bankruptcy.  The Weinstein Company is not the first company to seek bankruptcy protection after an explosive sexual scandal.  American Apparel, Bikram yoga, Le Cirque, and neighborhood Mexican restaurants have all entered into bankruptcy following allegations of sexual harassment.  It can happen to any company who does not take the risks of sexual harassment seriously.  But these are just the financial risks.  The long-term effect of a bad reputation will linger on these companies and their products and services.  So, if you’re concerned about harassment in your workplace, do something about it now.  While not all small and medium-sized businesses will make the front page when harassment allegations surface, customers, suppliers, candidates, and employees will learn about it.  Don’t let it fester and get bigger and even more toxic and damaging.

 

Photo by Daniel von Appen on Unsplash

 

Employees & Their Pesky Social Media

In my experience, giving the finger to the President of the United States isn’t the worse thing an employee has done on social media.  (Heck, I’ve helped fire people after Charlottesville if you catch my meaning.)  But, the incident of Juli Briskman, her middle digit, and the President’s motorcade illustrates the employer conundrum of employee social media.  Whether you love social media (me) or hate it (lots of people), it is now a factor of every day human resources.  We must deal with it.

Before getting to the meat of employee posts and pics, let’s get three things out of the way. First, employees have no First Amendment right to freedom of speech when working for a private employer.  If Mike declared his love for canned cheese at a dairy facility, Mike’s termination would be lawful. It doesn’t matter where Mike made the declaration – the factory floor or on Twitter – a private employer may take action.  It doesn’t matter that it was Mike’s personal opinion, an employer can simply not like the comment and terminate Mike lawfully.

Second, social media is a 24/7/365 after-work happy hour.  Social media is at work.  It’s used to connect employees, improve relationships with co-workers, and find out more about new job opportunities.  When folks use social media to share their political opinions, complain about a neighbor, or simply rant about a particular product, co-workers learn about these things.  Because we are so connected through social media, those rants, diatribes, or laudatory praise are seen and heard by co-workers just as if they were said at work or happy hour.  This means the post can affect the workplace, it does affect morale, and it can hurt the organization.  There is no “her Facebook is private” or “it was during her off time” argument when employees (or customers or clients) are connected to each other.  Social media is definitely not Vegas.

Third, when a post has to do with the employer itself, taking action gets tricky.  The National Labor Relations Act allows employees to discuss, complain, or rant about working conditions with each other.  They can do this on social media without fear of retaliation.  The rest of this post will deal with employee posts and pictures that have nothing to do with the employer.  If a post has to do with the employer, find your friendly neighborhood employment attorney.  Fast.

If employers can take action when an employee posts something they don’t like, the question then becomes should they.  Some – like the Charlottesville posts – are easy calls.  If someone posts something racist or sexist, the employee has got to go.  I often use the example of Justine Sacco.  Her tweet rightly got her fired, and nearly all of the HR pros, students, and business leaders I speak with agree.

Justine Sacco

However, when an employee posts something, many of the same HR pros, students, and business leaders get nervous.  I use the following hypothetical:

Mike has been a Manager for 11 years.  His work is well respected & his contributions to the company are immeasurable.  Erin is a new Assistant.  She got the job, because her friend, Joe, referred her.  Joe is connected on Facebook with Mike & Erin.

Erin shared a post from her friend criticizing the Women’s March, stating women & “the gays” already have equal rights.  Joe comments on the post that Erin is wrong.  Because Joe commented, Mike sees the post.  Mike is really, really upset.  Mike tells his manager about the post.

When I ask, “What would you do?,” the responses vary from “well, I guess I’d have to fire Erin” to “Couldn’t we just discipline her?”  Sometimes, the response is “Do nothing, an employee gets to be who she is outside of work.”  While this is admirable, it might not always be the best answer.  What if Mike threatens to leave the organization because of the post?  What if Erin rose through the ranks and started making hiring and firing decisions?  Couldn’t her post have an impact on hiring candidates from the LGBTQ community or her involvement in your diversity program?  This is where things get dicey, and employers have to think long and hard about what they are going to do with the Erins of the world.  The right answer will depend on the employer’s culture and tolerance of risk – both legal and reputational.

Here are some questions to ponder:

  • What has or will the effect on the workplace be? How much of disruption will this be?  How much will morale be affected?
  • If a manager made the post, what will the effect be on their employees? Will the post influence or have the appearance of influence over their ability to hire, manage, discipline, and fire employees?
  • Does the post conflict (directly or indirectly) with your mission, vision, or reputation?
  • Does the post violate a policy? For example, confidentiality or harassment policies could be implicated.
  • How many people outside the organization can see it? Will customers or clients see it?
  • If this was posted by a different employee, would we treat this differently?  Why?

These questions, along with all the other questions employers normally go through before disciplining or firing someone, are necessary.  Employers need to see the entire picture.

The next important consideration is consistency.  In the POTUS-middle-finger incident, Ms. Briskman’s employer claimed that her picture of her extending her digit towards the President was lewd and obscene.  Hence, her termination.  However, Ms. Briskman pointed to a “director’s” posting where he called an individual a “forking Libtard ascot” (Shout out to The Good Place.)  Arguably, this post is equally (if not more) obscene and lewd as Ms. Briskman’s finger, but the director was able to keep his job after removing the post.  And, arguably, if the only difference is that Ms. Briskman is a woman and the director is a white male, when then, Ms. Briskman could have a gender discrimination case.  This is exactly why consistency is key.  If you’re going to fire Ms. Briskman, you have to fire the director too.

My friend, Heather Bussing, jokes that you find out about employee bad behavior on social media just as fast as employees run to the cafeteria for free pizza.  It’s true.  When Janine does something controversial on social media, you find out about it quickly.  You may have to deal with it just as quickly.

Photo by Annie Spratt 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

 

 

Gratitude & Trust

I’m going to go out on a limb and make a proclamation:  Gratitude breeds trust!  (We’ll see if I survive this post.)

Gratitude encompasses two things – recognition and genuine thanks.  Lots of really good blogs out there talk about practicing gratitude for who you are, what you’ve become, and where you are in life no matter how many lemons life gave you.  This is recognition of you.  I’m talking about the kind of gratitude where you see and appreciate others.

Managers struggle with recognition beyond formalized awards and performance pay structures.  We get that Jamal’s contribution to the team justifies a bigger bonus than Jimmy’s failure to meet basic goals.  These are easy.  The recognition most managers can get better at is seeing every employee for the contribution they bring to the organization outside the confines of the job description.  Yes, we need employees to do their job, but we also need employees to be seen and appreciated so they can raise their voices without fear of being shot down or retaliated against.  We need employees to tell us about problems, possible solutions, where we could do better, and where we should be going.  Compliance has a lot to do with this.

Recognizing an employee means seeing them for who they are, what they contribute to the organization, and genuinely listening to them, good and bad.  It is hard to give constructive feedback when you’re a manager.  It’s even harder when you’re an employee fearful that if you speak up, you could get unwanted attention or worse, lose your job.  But when we recognize employees as their whole selves and not use cogs in an industrial wheel, they are empowered to talk to us.  This kind of recognition doesn’t mean we can’t hold employees to tough standards – we can and in many cases, should – but when we recognize the whole person, that person is more likely to trust us.

Gratitude also involves thanks.  Genuine thanks for the individual’s contribution to a situation or a task.  There are lots of blogs out there that go over what is genuine and what really is a contribution, so I don’t need to delve headlong into that discussion.  What I will say is that genuine thanks is more than a paycheck.  Employees get paid for their work, and their contributions can be recognized, and they feel comfortable in being themselves at work. Authentic expression of thanks will get employers more than a set of employees.  Employers will get dedicated, hardworking partners in the organization’s success (for the most part).

I’m currently working on a couple of different projects that all come down to this principle of recognition and gratitude.  What these employers are doing is building communication practices that draw upon these ideas to make a better workplace for everyone.  (Before you ask, yes, these are employment law related (diversity+inclusion and manager trainings) and not just the “soft” stuff of HR.)  It’s inspiring to see employers trying their darndest to do the right thing and build an employee community based on recognition, genuine thanks, and therefore, trust.

 

Image by Mathieu Barrette available at unsplash.com

DC Lessons For Every Organization

I use examples and metaphors a lot when conducting a training or explaining complex matters.  They’re helpful illustrations of what to do or not do in any given situation. In the last ten days, my cupeth runneth over with examples of what not to do.  These examples highlight poor business and human resources decisions that can take an organization to the brink.  Below are just a few.

(Disclaimer:  This post is about the goings-on in Washington and is more than a bit critical. But, please don’t confuse these lessons for political lessons.  They are organizational lessons that every employer should learn, know, and practice.)

Inconsistent messaging creates distrust. When managers say the sky is blue and the CEO says the sky is orange, employees are confused, skeptical, and grow increasingly concerned about who is telling the truth.  This is especially the case when the CEO repeats the statement or repeatedly contradicts managers.  Distrust is a bedrock of low employee engagement and low productivity.

Documenting important conversations creates credibility. He said-he said (or the more common he said-she said) is frustrating to anyone conducting an investigation.  We don’t know really know who is telling the truth.  But, when notes of conversations exist whether in memo, email, or journal form, those notes create credibility.  The mere writing down or typing out what was said close in time to the conversation means the notes show what really happened. Employment attorneys love contemporaneous notes because juries believe notes over manager testimony.  They’re like silver bullets in litigation.

Poorly handled terminations can haunt you. Using CNN to terminate is a mistake, and last week, I outlined some alternative methods.  The news this week illustrates exactly how a bad termination can follow an organization for a good long while, even when the organization doesn’t want it to.  An executive may want to change the narrative off of a termination but those affected may still want to know more.

Competitors shouldn’t see or hear an organization’s trade secrets. If the CEO of Coca-Cola shared the secret recipe for Diet Coke with the Chief Marketing Officer of PepsiCo, at least one termination would happen even if the CEO had the “right” to do so.  Trade secrets are secrets for a reason, they are the lifeblood of an organization and protect the organization and the individuals in it.  When shared intentionally, inadvertently, to curry favor, or to coordinate efforts, the organization suffers.

Boards of directors need courage to get rid of executives. It is hard to cut ties with an executive.  It takes courage to work against constituencies that may include the very people who put the executive in the position and/or take action when the bottom line will be affected.  Nevertheless, in cases where an organization’s goals cannot be met because of the distraction the executive causes or the nefariousness (i.e. alleged criminal conduct) of the executive, directors must find the courage to do what’s best or feel the wrath of shareholders.

Organizations, employees, customers, and shareholders deserve leadership that values transparency (when appropriate), understands the organization’s goals and focuses on them, and treats employees with dignity.  Simply put, individuals in and around an organization deserve better.

h/t to Jim Hankins.  Jim is a great corporate and HR Compliance Consultant in Colorado.  Check him out!
Photo by Anthony Walasik available at unsplash.com