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.

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

 

 

Dear Email, a Love Letter

Dear Email,

You have gotten a bad rap. You get destroyed and end a political career.  You get tweeted in an effort to be transparent but instead potentially put a “there” in a “there’s no there, there” narrative.  You can drown some in notifications or serve as a diary for others.  While many hope your death is imminent, I remain devoted.  How do I love thee?  Let me count the ways.

  1. You always know when.  You have a handy-dandy date and time stamp that helps shed light on what the drafter was thinking at that precise moment in time.  This stamp is used to create the all-important timeline of events.
  2. You’re easy. With just a few clicks and pounds of my keyboard, you are put in a file that I can search and retrieve later when I need you again.
  3. You’re findable. Even when you are used to document something – as sent only to the drafter – you appear in both an inbox and a sent file folder.  This means you exist at least twice.  When an email is sent or forwarded to numerous people, you exist in even more file folders.  Even when you’re deleted, you go to a deleted file where someone has to take yet another step to truly delete you.  This means it is really hard to completely lose you and completely destroy you.  If I can figure out who got you, I can most likely find you using fancy forensics.
  4. You’re nearly everywhere. Fifty-four percent of the world has at least one email account. (I have three.)  Think about that.  Half of the planet has email.  This means that most understand and use email regularly.  We email our accountants, doctors, lawyers, and friends seeking advice and support.
  5. You’re important. Sometimes, you’re are silly.  Sometimes, you’re dumb.  A lot of the time, you’re amazing evidence.  Just like the stuff people say, the stuff that makes it into email is stunning.  This includes that time that someone quoted Sir Mix-A-Lot in an email to a co-worker, remarking that his “Anaconda don’t want none…”  Uff da, indeed.  (Note, great song, poor context.)
  6. You’re the best. When done right – without opinion or superfluous adjectives – you can save a case.  People believe you, and sometimes, they believe you more than they believe live testimony.

For all of these reasons, I just can’t quit you, email.  You remain one of my top recommendations for documenting performance, discipline, outlandish behavior, awkward conversations, and whatever else befalls HR departments.  I just hope you are done right and don’t need a lot of explaining.

Love, Kate

Featured image available at vecteezy.com

Email Dance

SHRM National First-Timer

This year, I was given a great opportunity – attend my first SHRM national conference in New Orleans.  I got to spend three days with 17,000 of my HR friends, meet the people I have been following and listening to, and learn from some smart speakers and attendees.  It was amazing and downright exhausting.

Here are some of the things I took from the conference:

The worst loss to deal with is the loss of life and love, followed closely with trust. Kat Cole got everyone craving Cinnabon and thinking about how we build trust with the right doses of humility, curiosity, courage, and confidence.  We fail when we’re too far away from the front lines of our business, are unwilling to do the right thing, and don’t change policies to keep up with the organization’s needs.  We need to consider whether individuals can trust us, how we rebuild trust when we do something to harm it, and put integrity at the center of our organization.

Some healthy skepticism is important. Much of Laszlo Bock’s keynote was super – give your work meaning, trust your people, hire people better than you, etc.  But when he discussed paying people “unfairly,” there was a healthy dose of skepticism from the audience and twitterers.  Mr. Bock believes that you should pay people based on how well they perform and how much they are “all in.”  These disparities can be up to double the amount you may pay someone else in the same role in Mr. Bock’s opinion.   This is really something given Mr. Bock recently left Google where his pay practices are now subject to a significant lawsuit that The Guardian headlined as “extreme” gender discrimination.  While I agree that paying people based on their performance is good in theory, when the discrepancies appear to include a dose of discrimination, we have a problem.

Be disruptive.  Jennifer McClure‘s presentation about DisruptHR included some nuggets from these events, including my personal favorite, “Respect the data, but make human decisions.”  Jennifer encouraged her audience to be disruptive, but that doesn’t mean that they need to revolutionize.  Small changes can be disruptive too.

If you have a brain, you’re biased. Yes, I knew this before, but David Rock’s discussion on the neuroscience behind unconscious bias was great.  Mr. Rock started out talking about how to sell diversity initiatives – it’s not just about improving the bottom line, it’s also about making better decisions.  He spoke about how it is very difficult to work against individual biases, so work on the bias at work as a team.  I was both fascinated and challenged by his presentation.

My favorite HR tweeple are super. I love Twitter.  I’ve met some great people online, who I had not met in real life who I could call up to ask questions or ask for a smidge of reassurance.  I got to meet these people IRL at SHRM, and they are just as cool, friendly, and smart in person.  It was so great!  John Friend is right, “SHRM is HR Christmas.”

I can’t wait to go again next year!