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!

Checklists, Not Forms

You’ve met her.  Her name is Darlene.  She’s in HR.  She’s a stickler for rules.  She’s definitely not the party-planner HR-type.  Darlene denies requests that do not come on forms completed perfectly.  (She actually gets quite huffy about it.)  In fact, lawyers have taught Darlene that her way is the best way.  In the time of COVID-19, Darlene is about to experience an awakening.  She’s not gonna like it.

Under the Families First Coronavirus Response Act (FFCRA), employees can request paid sick leave and/or expanded FMLA in any way they can.  In its regulations, the Department of Labor has explicitly said that an employee can request leave orally.  Employees do not need to ask for a leave in writing.  (The IRS has some things to say about this, but…)

So, do you need a form?  No.  Should you have a form?  Not if you’ve got a Darlene working for you because she’s going to deny the leave if she doesn’t get the form filled out just the way she wants it.  Here are the reasons to say no to forms:

  • Not all employees have printers at home
  • Not all employees have computers at home to complete forms
  • Completing a form might be difficult for some employees
  • Requiring a form creates a hoop that an employee has to jump through to get the leave and therefore could be considered interference with the leave
  • If DOL says an oral request is sufficient, then you can’t require a form (worth repeating)

I know what you’re thinking, “But Kate, how am I going to have evidence if they ever sue me?”  Don’t worry.  I didn’t say you weren’t going to have evidence.  I said you shouldn’t have a form.  Instead, let’s have a checklist that HR or whoever is responsible for HR stuff to go through to make sure they have everything they need, like healthcare provider names, kids’ names and ages, and dates.  Having a conversation back and forth with an employee to get this information – whether it is over email or text message – is going to get you all the documentation you need.  You can even use your old faithful friend, Microsoft Excel, to track the information and document where the information is.  Really.  An email string or a text chain is going to be enough.

Tomorrow, April 10 at 10 AM CDT, I’m going to go through a bunch of scenarios where employees need leave.  I’ll walk you through my checklists, how to document the leave for IRS purposes, and even give you the tracking spreadsheet.  No registration necessary.  Just log in here: Kate’s COVID Webinar.  The password is 813056.

Until tomorrow, don’t be like Darlene.

Photo by Glenn Carstens-Peters on Unsplash

Preventing Panic

Knowing that anxiety is high among HR professionals and business owners, Heather Kinzie and I held a coronavirus/COVID-19 conversation about the following questions:

  • What should the employer communicate to its workforce?
  • What health information does the employer have the right to know regarding this issue?
  • What is the employer obligated to pay for?

The recording of a portion of the recording is below.

We’ll hold another one next week at 12 pm CDT/9 am AK.  Just click here at that time.

 

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!