Deep Breaths about Wage Theft

As of July 1, 2019, Minnesota’s new Wage Theft Law will go into effect.  If you read anything about this new law, it is easy to assume it places many, many new obligations on employers.  But, like many things, take a deep breath.  The new law isn’t nearly as onerous as you might think.

First, the new law requires employers to follow old laws.  Employers have to pay employees.  Employers have to pay at least minimum wages.  Employers have to pay overtime.   Employers have to have paystubs with a bunch of information on it that specific how the employee earned pay (pay period dates, what is regular pay, what is overtime, what deductions are for, employer name, address, and telephone number, etc.).  None of this is new.  What is new is the amount of penalties that accompany failure to follow these laws.  Those have increased and failure to follow the law could include very real criminal penalties.

Second, if you have offer letters, much of the new “notice” requirements are already in your offer letters.  Start date, how much the employee earns, basis of pay (salary or hourly), when employees will get paid (weekly, biweekly, twice monthly, etc.), exempt vs. nonexempt status, any commission structure (if applicable), what shift the employee is assigned (if applicable), PTO or vacation and sick time accrual, deductions to pay, employer address, and telephone number – these should already be in your offer letter.  The only “new” pieces are when the first payday will be, any allowances (like meals and lodging), and an offer to put the offer letter in a different language if needed.

Third, when employers roll out new policies, you need employees to acknowledge them.  Prior to the new law, employers could roll out new policies without employee acknowledgements.  Now you need them.  To avoid piecemeal acknowledgements, it may be best to review your handbook annually and when updates are necessary, require employees to acknowledge the changes all at the same time once per year.  More frequent changes are going to require more frequent acknowledgements.  This could be a bit of a pain to both do and track.

Fourth, when you change wages, employees need to acknowledge those changes too.  For example, if Jimmy is going to get a raise, you give him a writing (email, letter, performance review) that his wages are increasing and have him acknowledge the increase.  Again, most employers already do this, but now it is mandated by law.

That’s it!  The Wage Theft Law looks like it could be hard to comply with.  But, in reality, it is not as big of a deal as it has been made out to be.  Take a deep breath, you got this.

 

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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.

 

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Being Human

This week, I had the enormous privilege of attending #workhuman.  If you’ve never heard of Workhuman, where have you been?  Remove yourself from under that comfy rock, and let me share all my learnin’, y’all.  (Workhuman was in Nashville this year, and now, my drawl game is strong.)

Workhuman, formerly Globoforce, is a social recognition and continuous performance management platform that can integrate with lots of different HCMs to improve how your people see and interact with each other.   Workhuman does a ton of research on the impact of social recognition on inclusion, gender, race, wellness, and performance issues that will make your jaw drop.  They’ve come up with ways to inform, but not criticize, how we use language from a gendered and racial perspective when giving recognition or feedback based on the data they have collected from millions of interactions.  It is this research informs how they do business.  They’ve learned that being human makes workplaces better.

#workhuman is their signature conference, bringing together thousands of concerned humans for the sole purpose of trying to figure out how to make the workplace more human.  The conference is all about how do we see, treat, encourage, develop, recognize, thank, and love – yes, I said love, but not in the romantic sense – the people we work with so we can all do better.  This is more than just an HR conference, it is a business conference.

Here are a few of my takeaways:

We have to revel in being uncomfortable.  Whether it was Brene Brown, Kat Cole, Candi Castleberry Singleton, David Lapin, or any of the other speakers, this was a powerful take away.  As a society, we are at a tipping point.  Our workplaces are also at this tipping point.  We can’t simply put our heads down, our safety googles on, and focus on productivity goals if we’re going to be successful.  If we’re going to have people in our workplaces, we need to accept and welcome them as they are.  We’re going to have to talk to them about the heavy society concerns from gun safety, policy brutality, offensive tweets, gender and racial inequality, and the fear that prevents us from being our whole selves.  Allianz does this, Kat Cole does this, we should all do this.

Recognition makes a difference.  Data is the best.  Data that shows we can make a dent in the problems that plague our workplaces is even better.  The data Workhuman shared on how recognition can improve our connections at work, our engagement at work, and help plug the holes in our leaky buckets is so impressive.  I want to know more.  Luckily, there’s a resource page devoted to this!

Pobody’s nerfect, but we can all be resilient.  If we’re going to have difficult, uncomfortable conversations at work, we’re going to make mistakes.  We’re going to hear antiquated language that is now offensive.  We will have to tackle our fear with a battering ram.  We’re going to have to be brave and vulnerable.  We’re going to have to rely on our integrity, strength, and humanity to deal with the mistakes, use them as teachable moments, and move on.  I’m not saying that every mistake is just a mistake – some mistakes warrant termination – but as we encourage these conversations, forgiveness and resilience will be powerful to keep us moving forward.

Being human is hard.  As a crier, I was moved to tears a couple of times – not gonna lie.  It is hard to be vulnerable, willing to fail, learning from our mistakes, and sharing our failures so others can learn from them too.  No one promised this life, in general or in business, was going to be easy.  So, grab your friends, family, co-workers, and meet these obstacles head on.

I cannot oversell #workhuman.  Every attendee self-reflects, does some mental gymnastics, and learned from this conference.  Next year, Workhuman is in Denver.  I hope to be there.  I hope you all are too.

 

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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.

 

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What Are You Going to Do?

If you walked past a fight on the street, what would you do?  Call the police?  Try to break it up?  Walk away?  Watch?   Not many people would do something if they inadvertently stumbled across a fight.  Would they intervene if something happened in the workplace?  Would you?

We live and work in a fascinating time.  We’re being forced (some are being dragged kicking and screaming) to look at our workplaces, see the inequities, evaluate the poor management, and do better.  This is hard.  Like really, really hard.  Citigroup recently published its finding that on the aggregate, it pays women nearly a third less than men.  When the numbers were adjusted to reflect pay at comparable positions, the difference was significantly less, placing the organization in a defensible position.  Yet, the aggregate numbers are a wake-up call.  Citigroup vowed to change, adding more women in high level positions across the globe, and I applaud both their transparency and their efforts to improve.

What Citigroup did was look and do something.  While Citigroup was pushed to look by a new UK law and an activist shareholder, the looking was an important step.  Because once we look, we can’t simply walk away.

In the past two years, we’ve been forced to look at harassment.  #MeToo has riveted our world. The headlines have opened our eyes to what has been happening in plain sight for decades.  We’ve found that it is the rare occurrence of harassment that no one in the company knows about.  Someone overheard a conversation, witnessed an odd touch, or saw an inappropriate text message.  Yet, we have looked away, justified our willful ignorance as “it’s 20XX, that can’t possibly be happening now.”  It’s this shrugging of our shoulders that has allowed harassment continue and worsen.

The same is true for other forms of harassment and discrimination.  Racial and religious epithets and symbols, putting the only black sales executive in a closet, offensive costumes that have a direct impact on students are all news items from the past eight weeks.  In the last eight weeks!  We see so much more now with more and more avenues for targets of discrimination and harassment to share their stories.  It is as if we are walking past this fight and are being asked “what would you do?”

For me, staying silent is not an option.  I avoid conflict as much as the next Midwesterner, yet, we are at a time – just like so many other times in our history – where staying silent makes the situation worse.  Today, we stop and think about the legacy of Martin Luther King, Jr.  “History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people.”  Elie Wiesel once said, “We must take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.”  Looking at what’s happening in our workplaces and work, these two leaders ask us, what are you going to do?

I encourage you to look.  You can start by following #BlackBlogsMatter.  This group of amazing individuals have put together a movement designed to raise their voice, speak their truth, and teach us all how we can be better allies and simply do better.

 

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CEOs & Boards Need Training Too

“Do CEOs get trained on harassment?”  That was the question from a lovely individual who recently went through the wringer of having to let a C-suite-level leader go in her organization.  My answer was “they should.”

Based on media reports over the past year, it doesn’t appear that CEOs, anyone in the C-suite actually get harassment training.  They may pay for training for their own staff and even for managers, but requiring the attendance of CEOs and even boards of directors appears to be few and far between.  In just the past year, CEOs at the following companies have either stepped down in the midst of scandal or were fired:

These are prominent companies.  Companies with significant public profiles.  Leaders who should have known better.  Leaders who did not receive training, who did receive training and didn’t comprehend the consequences, or who simply didn’t care.  It’s quite possible that’s where we are – some leaders may believe the rules do not apply to them.

The law has a different view.  The law says that CEOs ARE your organization.  When they engage in harassment, the organization is automatically liable.  (Yes, you read that correctly.  Automatically.  Look at Section VI in the link.)  Because CEOs – no matter the size of your organization – are your public face, they are the “alter ego” of the organization.  What they do binds the organization in business and in harassment.  For this reason, CEOs need to understand the gravity that comes with their bad decisions and actions.  They must understand that sending an inappropriate text, making a sexual request, or touching an employee improperly has significant consequences.  That it can even force the closure or bankruptcy of the organization.  It could be the end of the road.

So, I’m issuing you a challenge HR friends.  As you get ready for 2019 and you organize your training schedule for the year, include your leaders in harassment training.  Involve your board of directors.  Make sure that they attend.  Go over what happens if they engage in harassment.  Explain the investigative process –their technology will be reviewed, including texts and emails.  If you do this, you’ll help protect your organization and hopefully prevent harassment.

Quick story – I once did two trainings for a company.  On the first day, I trained all the managers and leadership, including the CEO.  The second day, I trained employees.  To show how important the training was to the company, the CEO introduced me.  He started with the expected “we take this very seriously” and then said, “I think you’ll like Kate, she’s loose.”  Now, he meant that I was not a stuffy attorney, but nevertheless, that was lesson number one of the training.  He turned all sorts of red, apologized immediately, and we all had a laugh.  I promise you, no one in that organization who was there will forget that and everyone learned something.

If you need help planning your training, take a look here.

 

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