Getting Harassment Training Right

Over the last year, I’ve done hundreds of respectful workplace (a/k/a harassment) trainings.  I love this training.  It is my favorite.  This is training is so vital to every organization that I will move vacations to do it.  Seriously.

I speak publicly on harassment training.  Just this year, I’ve done a DisruptHR talk, the North Dakota’s Workforce Development Conference, Minnesota SHRM, and soon the Minnesota Association of Legal Administrators conference on this topic.

I’ve even written a lot on harassment training.  (See here and here for training specifically, and here and here for more general training references.)  The writing has helped me focus my own trainings, making them better for my clients.

After this year (and the years before that), I’ve come up with my own philosophy on harassment training – what makes it good, what can we do better, what should employers consider, etc.  Ultimate Software has been kind enough to include my diatribe on the subject in their collection of white papers.  You can find it here.   Please, if you’re considering putting harassment training on your list of to-dos for 2019, read it.

FMLA Screaming (Part II)

Have you pondered the question from yesterday’s post?  Agree with me that there are things you can do and things you should do?  That should do includes approaching FMLA with come compassion and not being super strict with FMLA’s limitations, right?

Yesterday’s post covered some of my tips for the start of FMLA.  Here are a few more for during leave.

Preparation for leave is essential.  Hopefully, the employee knew he needed to go on leave and was able to prepare by giving his manager his passwords, updating her on the status of projects, and plan to turn over work.  Sometimes, this isn’t the case.  An accident, premature delivery, or quick onset of a serious illness can take the employee out of the workplace leaving a manager without the benefit of the advanced notice.  What do you do in these emergency situations?  Leave the employee alone.  The employee is already ill or injured himself, worried about a family member, or facing the crushing reality of being a parent to a new baby.  The status of the sales agreement with customer XYZ is not top of mind.

Let technology help you with not knowing what’s going on.  Get access to email and other systems to help piece together the status of projects without bothering the employee.  Need a password?  Work with the software vendor or your own IT team to recover a password if necessary.  Change permissions so the manager or another team member can see things.  Again, don’t bother the employee.

If the leave is intermittent and the employee’s need for leave could come as a surprise on any given day, plan for what that looks like.  How will the employee handle the sudden need to be off?  Come to an agreement with the employee about his work when this happens.  Does this mean the employee spends the last 10 minutes of each day sending a quick email on the status of things?  Maybe.  (Would that be a nice thing to have anyway even if he didn’t need leave?  Yep!)  Setting expectations is a manager’s job.  If the manager laments every time Juan takes an intermittent day, well then it’s the manager’s problem for not preparing for this – not Juan’s.  (I know, I know, this isn’t a great one-liner to share with the manager, but you all are good coaches, you’ll soften the message.)

Don’t surveil the employee.  Seriously.  Don’t send someone out to watch the employee’s house to see if he is cleaning his gutters or fixing a deck.  Don’t monitor his social media accounts for signs of a vacation.  Assume the employee needed the leave and is using the leave within his or his family member’s health care provider’s instructions.  If something fishy starts happening, you’ll learn about it.  Don’t waste your time and resources beforehand.

When the employee is ready to come back to work, don’t forget the ADA.  Yes, the ADA can be an even bigger headache for employers.  Yes, the Seventh Circuit recently held employers might not have to give more leave than the FMLA requires.  However, the ADA places a reasonableness standard on employers.  Employers are required to consider reasonable accommodations, including leave, for each requesting employee on a case-by-case basis.  Don’t get consumed with “well if we give it to Larry, we’ll have to give it to everyone else.”  Remember, the ADA requires case-by-case analysis.  For more return-to-work tips, check here.

Lastly, remember that communication is really important at the end of leave.  You may want to know if any restrictions are necessary.  You may want more confirmation as to what day.  For requests like these, remember K8’s rule of three.  Ask at least three times in writing before you assume the employee is abandoning his job.

I get that the FMLA is tough.  I get that it can be frustrating for HR and managers.  However, it can be a godsend for employees.  It’s supposed to give them peace of mind that their job will wait for them if they need to be out for a bit.  Use this fact as a part of your compassion and empathy game. The employee will thank you for it.

 

 

Photo by frank mckenna on Unsplash (Great, happy picture, right?  Perfect for a Friday!)

HR Tech’s Adverse Problem

While I totally loitered at the Society for Industrial and Organizational Psychology Conference (I was a presenter, just failed to register – oops), I’d thought a post on what we talked about yesterday and a bit about what’s happening at the University of Minnesota’s HR Tomorrow Conference today: adverse impact, why it’s important, and why you should care.

Adverse impact (known as “disparate impact” by the lawyers) is when groups of individuals described by a particular characteristic is negatively affected by an employer’s decision, selection tool, or policy when that decision, tool, or policy is neutral on its face or does not intend to actually have a negative impact.  For example, if an employer uses a psychological test that filters out African Americans, the test would have an adverse/disparate impact on African Americans.

The concept of disparate impact has been around for a long time.  The United States Supreme Court in Griggs v. Duke Power formally recognized the claim.  Since that time, the law has been debating many aspects of the claim, including what statistical models to use, does the doctrine apply if the rule intends to discriminate, how does impact different from treatment, and will the doctrine apply to all the HR technology out there.  While this post could go on-and-on about all of these questions, this last piece is really important for HR tech buyers, and the answer is probably.

We already know that lots of HR technology vendors, including the fancy-dancy stuff like artificial intelligence, machine learning, algorithms, etc., market their products as the only way to find the best candidates, identify problem employees, and make all your dreams come true.  When these technologies are used, their use could create a disparate impact.  How do we know?  Because we’ve already seen how these technologies discriminate outside the world of HR – see photo ID that classifies African Americans as gorillas, recidivism tools that increase prison terms for African Americans, etc., so it is highly likely that they could operate the same way when it comes to HR tech.  Arguably, HR tech has the potential to greatly impact because the decisions HR makes affect individual’s livelihood.

So what should we do about diverse impact?  While there are many, many things we need to do to limit the potential that the HR tech we use doesn’t discriminate, we should start with two things.  First, we have to know how the technology works and the data it uses to make recommendations.  This requires vendors to be open and honest with us, lose the marketing gloss, and really explain their products. Can they explain how the tech works?  Can they explain how the tech works on our organization’s data?  Could the data have bias baked in?  (The answer to this last one is probably yes, especially if we’re looking at hiring or performance data.  There’s just no escaping it.)  When vendors are transparent and honest about these issues, we can take more steps to mitigate any disparate impact the tech might have.

Second, we need to test and test and test to see if the tech creates the disparate impact.  Lawyers and data scientists talk about validation as the test.  For lawyers, validation means under the Uniform Guidelines for Employee Selection Procedures.  For data scientists, validation means how strong the correlations are statistically.  This definitional problem causes more debate and potential confusion.  So, we need to find vendors who understand, appreciate, and can articulate validation under both tests.  Because the HR tech world is a bit like the wild, wild west, it’s hard to find them. (Trust me, they’re out there.  I’ve probably met them or at least brow-beat them from a distance on this very issue.)

All that said, I want HR to understand and appreciate that these issues could exist and start playing an active part in fixing these issues.  While I’d love for everyone to trust each other, placing blind faith in a vendor is not in our organizations’ best interest.  Holding people accountable is one of the strengths in HR.  We should use it here too.

One final note, I love this stuff.  This tech is going to revolutionize how we do business.  I just want to do it in such a way that doesn’t create that much risk for our businesses.  Remember my pledge?

 

Photo by Patrick Lindenberg on Unsplash

Overreacting

James Damore is suing Google, alleging the tech giant “systematically discriminates” against conservative white men.  While being both conservative (i.e. political affiliation) and male are protected class statuses in California, it’s not clear to me that Mr. Damore’s case has much merit.  (For Pete’s sake, he claimed women are not biologically capable of being good software engineers.)  Yet, it is a great example of an overreaction and an attempt to halt diversity initiatives nationwide.

Mr. Damore’s lawsuit was predictable.  He told us he was going to bring one.  It is also typical.  Affirmative action programs at colleges were attacked when white applicants were not getting in at the same rate as before.  A Christian sued Ford and its affiliates when the car manufacturer came out in support of gay marriage.  These kinds of lawsuits attempt to scare organizations into worrying that their diversity initiatives may swing too far, launching them head-first into litigation.  They may be effective on occasion, but as a scare tactic, it may be just as effective.

What should HR do? We should follow some of the same advice we’ve been bandying about for decades:

  • Dip into all sorts of candidate pools
  • Seek out affinity groups at colleges and universities
  • Think of churches/temples/mosques as places of worship and potential sources of candidates
  • Post job announcements EVERYWHERE
  • Offer training (maybe even English) to high-potential employees
  • Treat your employees with care
  • Draft policies with care to not affect a particular group
  • Validate selection programs for disparate impact
  • Seek out the opinions of employees of all shapes and sizes, genders, races, religions
  • Accommodate employees without putting up theoretical barriers
  • Acknowledge differences in the workplace and celebrate them
  • Listen

(Please note, this is not an exhaustive list.)  None of these tactics or strategies are discriminatory.  Only hiring women can be.  Setting specific quotas can be.  Only offering benefits for referring minorities or women can be.  We have to be careful and mindful that whenever we use a protected class status as a basis for hiring, we get closer to violating the law even when our intentions are good, moral, and just.

In response to the sexual harassment revelations, the Time’s Up Now group, 50/50 by 2020, pledges to get to 50 percent representation of women in Hollywood by 2020.  There’s a James Damore in Hollywood too.  While I don’t doubt that plenty of women are qualified or over-qualified for positions in Hollywood, the Hollywood version of James Damore is planning his attack.

Photo by Scott Webb on Unsplash

All Over The Place

In the past few weeks, I’ve been all over the place talking compliance, sexual harassment, technology, holiday parties, and what’s coming for 2018.  Here are a few:

  • The New York Times. The New York Times.  A week or so ago, Noam Scheiber of The New York Times reached out to ask about the role of HR in sexual harassment reports.  The premise of the article is that HR can be ineffectual.  That’s a fair critique given the current climate, but there are some reasons for that.  Please read the whole thing.  Then, let’s brainstorm on how we can change this situation.
  • I talk about holiday parties and greetings with Marc Alifanz and Dennis Westlind on their podcast, Hostile Work Environment. This is a thoughtful and hilarious podcast for any HR practitioner and/or employment attorney.  Marc and Dennis hash out some fascinating cases and noodle through some tricky legal analysis.  The podcast is available on iTunes and wherever you non-Apple cult members can find podcasts. Subscribe.  You won’t be disappointed.
  • Social media has a role to play in harassment claims, and with #MeToo, it can be an avenue to report it whether employers like it or not. Here’s an SHRM article making this point and stressing how employers should be aware and ready to deal with social media reports.
  • In addition to the holidays, we’re well into the “what’s coming for 2018” season. Ultimate Software included me in their webcast on Employment Law 2018:  What You Need to Know Now.  We covered everything from salary history questions, overtime, minimum wages, diversity, social media, and more.  It’s only an hour, and feel free to disagree with my not-so-scientific predictions for the coming year.  Over 1800 people signed up for the podcast, so don’t be left out!
  • One of my favorite HR blogs is HRBartender. Sharlyn Lauby provides great hands-on advice on a full range of HR topics.  Sharlyn kindly included me on a reader question about bullying and the concern about what happens when this issue gets to HR.  Take a look and let me know if what I wrote is how you would handle the situation.

It is really quite an honor to be included in these publications, the podcast, and with these organizations.  Thank you to them and their readers, viewers, and listeners!  I’m one heckuva lucky lady.

Please do not hesitate to reach out if you have any comments, questions, or want to chat further.