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!

How To Fire

I’m a stereotypical HR lady.  I have two cats, a couple Coach bags, and I like to fire people.  Now, nearly ALL the HR people I know don’t like to fire people, but based only on pop culture, we share the reputation that we like to fire people.  (I actually do, because by the time my client calls me to ask, firing the person is almost always the right decision.  But I digress…)

There comes a time in every HR and management person’s career where they have to fire someone.  There also comes a time when an employment attorney provides advice on how to actually fire someone.  This isn’t necessarily legal advice on whether the term will have legal consequences, but nevertheless, we need to teach people how to fire.   So, without further ado, follow these steps:

  1. Talk with the employee. I ask my clients whether the employee has any idea that they could be fired.  If they don’t, maybe we should step back and go back over performance expectations.  Or, if it is misconduct related, should we give the employee a second (or third) chance?  If the employee knows or the behavior is eggregious, move on to step two.
  2. Gather documents. Hopefully, a manager will have documented conversations with the employee or at least documented expectations the employee was supposed to meet.  If none, ask for some.  Documents can be an email describing conversations, actual write-ups, text messages, or other things that can be printed in some format.  Put all these documents in the employee’s file.
  3. Schedule the termination. No, you don’t have to put the meeting on the employee’s calendar (if they have one), but you need to make sure all the people who need to be there or have post-term action items know of the termination.  This includes the manager, HR, and likely IT. Wednesdays after lunch work best for terminations – the employee has a couple of days to check with an attorney if they believe the termination was unlawful, and more importantly, the team that has just suffered a loss gets two days to recover before the weekend.  If you terminate on a Friday, everyone sits with it all weekend, wondering to themselves what happened, stirring the pot, and potentially causing a bunch more drama.  It’s better to give everyone a couple of days to ask questions, figure out who will take on tasks, etc. before a weekend.  Then, once Monday comes round, the drama has largely dissipated.
  4. Prepare bullets. The manager should be the one actually doing the firing (this is why they make the big bucks), and they’ll need to prepare.  Their bullets will be the expectations the employee didn’t meet, what happened when they didn’t meet those expectations (e.g. impact on the org or team), and the reason for the termination.  HR prepares bullets for what happens after termination like the return of personal belongings, COBRA, what happens with accrued PTO (or vacation and sick time), and severance package information (if any).  Also, prepare for any questions the employee might have that you can anticipate.  Fair warning, people respond to a termination in a bunch of different ways.  You will not be able to anticipate all of them, but knowing the employee will help get you most of the way.
  5. Get together the stuff. Some of the stuff you’ll need to gather include: (1) termination letter; (2) severance agreement (if you want); (3) COBRA notices; (4) box for personal belongings if you want the employee to take their stuff immediately; and (5) information to gather passwords from the employee.  (Talk with IT on this last one.)
  6. Do it. In person.  In private.  If the employee works remotely, schedule a video conference.  No one should get fired over an email, post-it note, or letter alone.  Sometimes, it makes sense to terminate over the phone, but if at all possible, everyone should see the whites of each other’s eyes.
  7. Launch IT. Once you’ve done it, protecting the organization’s trade secrets, confidential information, and other assets (including co-workers) is the top priority.  Contact IT to close down accounts, access, remove access over personal cell phones, or put in motion plans to redirect email and telephone contact from customers, vendors, or other internal folk.  You may even need to talk with security to get keys and/or fobs.  If the organization leases space, tell the landlord who gets access to the building, namely not the fired worker.
  8. Gather their stuff. You can either have the employee pack up their stuff (if they have an office) or pack it up yourself.  If you’re the packer, take pictures of each drawer or shelf before you pack up in case the employee says you forgot something.  This way, you can present pictures to the employee and ask for more specificity as to what they’re looking for.
  9. Talk with the team. When someone gets fired, no matter how much it is needed, the manager and sometimes, HR, needs to meet with the team to go over what happens next.  The manager doesn’t need to share why the term happened in most cases, but easing the minds and anxieties of the team is crucial to getting through the loss.  Be ready with questions about tasks, desk location, and a whole multitude of concerns employees might have.  It’s okay not to know all the answers, but assuring employees you’ll get back to them is crucial.
  10. Regroup. Once the termination is over and maybe even a couple days later, meet with the manager again to go over what could have been done differently – not necessarily better, just differently.  Could have expectations been set better?  Could more discussions could have been had?  Should we shift how tasks are assigned?  This is a really important opportunity to learn something from what just happened.  Don’t skip this step!

No one thinks terminations are actually fun – they’re not.  That said, firing someone is a necessary part of effectively running a business.  Every business.  If you haven’t ever done it, then it’s likely that you should have.  Remember, it is SIGNIFICANTLY more expensive to keep someone around who isn’t meeting expectations or is toxic to your environment.

 

Photo by Ricardo Gomez Angel on Unsplash

Pens & Company Ink

Recently, I gave a presentation on sexual harassment to a group of compliance professionals from some of the largest organizations in the Midwest.  At one point, an audience member called me a Sexual McCarthyist because I said CEOs shouldn’t have relationships – even consensual ones – with anyone in the company.  Given the news out of Chicago on Sunday, let’s go over why.

When a CEO engages in sexual harassment, the organization is vicariously liable for the conduct  Citing U.S. Supreme Court case Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2284 (1998), here’s what the EEOC’s Guidance says:

An employer is liable for unlawful harassment whenever the harasser is of a sufficiently high rank to fall “within that class . . . who may be treated as the organization’s proxy.”

The Guidance goes further and lists individuals who could be considered an organization’s proxy, including president, owner, partner, and corporate officer – like a CEO.  Vicarious liability means the organization has no defense to a harassment claim and is automatically liable if the conduct was indeed harassment.

So, was the conduct harassment?  Well, let me take all of your hopeless romantic hearts and crush them.  Relationships fail at a remarkable rate.  Think of all the people you have to date before you find “the one” and then “the one” has a better-than-fair chance of ending in divorce.

Now, imagine you’re a CEO.  You have a significant amount of authority over everyone in your organization.  You start flirting with an employee.  The employee may feel that they don’t have the option to say no to a couple of dates.  Things start to heat up, but something is not right.  The employee feels they can’t break up for fear of losing their job or ending their career (like blacklisting, etc.).  So, even though they may have liked the attention at the start, they can’t stop when it turns ugly.  Now, the relationship is no longer consensual.  This is harassment.

Or, what if the break-up is consensual but now the CEO has to rate the employee’s performance?  The employee is afraid that the CEO will be vindictive or will treat them unfairly because of the break-up.  This could be retaliation.

The best thing an organization can do is prohibit CEOs (and other C-suite individuals) from having relationships at work.  Period.  Institute a policy.  Talk with the board and leadership.  Explain you will enforce this.  Then, if it happens, take action.  This was what happened at McDonald’s.  This is what happened at Intel.

As my grandfather said (to his 14-year-old granddaughter (see, I was made for this work)), “Don’t get your money where you get your honey,” and “Don’t dip your pen in the company ink.”  If you’re a CEO out there, take these idioms to heart.  Not following them could end your career.

 

 

Photo by Aaron Burden on Unsplash

Why Talking Remedies Is A Bad Idea

I get to do a TON of respectful workplace trainings, otherwise known as harassment training.  It is one of my favorite things to do.  However, a new requirement for harassment training irks me to no end.

It’s the requirement under California, Illinois, New York, and potentially more state laws that requires that we talk about the remedies available to harassment victims.  I don’t hate the remedies – victims of harassment are entitled to all the remedies out there and then some.  I just don’t like talking about them in training.

Why you ask?  Victims of harassment are already plagued with a seemingly endless list of reasons NOT to report harassment, including retaliation, exposing an embarrassing incident(s), fear of being judged about the clothes they wear, fear of not being able to pay their mortgage, rent, car payment, student loan, child care bills, etc.  Telling them about the remedies available to them, all of which could bankrupt the very organization they’re working for, adds an additional burden to a victim.  Victims of harassment don’t always want to bring down their employer – they want to bring down the harasser or at the very least, make the conduct stop.  They don’t want their friends to lose their jobs too.  Victims went to work for their employer because they believed in the mission, need the work, and want to work there.  Talking about the hundreds of thousands of dollars at play in a harassment lawsuit doesn’t provide comfort, it adds to the load.

In training, I’m doing my darndest to encourage targets of harassment to tell HR or any manager about what is happening.  Trying to reduce the burdens of reporting, encouraging co-workers to help, promising retaliation will not happen, and that HR is a safe place for them to go.  Taking a hard left to “your report could cost this organization tons of money” is halting transition without out much benefit.

The required remedies discussion was probably designed to scare harassers.  It should!  But by and large, employers are on the hook for the money, not the individual harasser.  The harasser is rarely held to account.  They may lose their jobs, but they don’t owe restitution to the victim or even the employer.  It is the organization and its employees who suffer most through the time and resources taken up by a lawsuit.  Yes, in many cases, the organization needed to do better to protect employees, but spelling out its possible demise is not going to convince a victim to raise their voice.

Employers need to do better without a doubt.  And, a good training is a great step.  Scaring victims even more is not the answer.  Dear Legislators, please understand this and let me do my job.  I really like it, and I’m pretty good at it.

End rant.  Thank you.

 

Photo by Gaelle Marcel on Unsplash

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.

 

Photo by Tim Mossholder on Unsplash

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.

 

Photo by Sebastian Pichler on Unsplash