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!

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

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