Tired of Bubbly

The feedback I get from people I meet is often “I love your energy, “you’re so bubbly,” and “why are you so happy?”  I am, by no means, a Debbie Downer.  That said, I don’t ever want people to think that HR has to be happy or has to be cheerful all the time. You get to be NOT bubbly.  It’s totally okay.

We deal with some dark stuff.  People come to us when their kids or parents are sick.  We organize FMLA for them in these cases.  When they get a horrible diagnosis for themselves, we figure out the reasonable accommodation to allow them to earn a paycheck while going through grueling procedures.  Some of my hardest days an HRO were trying to find ways to get people home to dying parents. Tears – including some of mine – were shed in my office.  A bubbly response would be insensitive and inappropriate.

We deal with hard problems.  When someone comes to us with an allegation of harassment, we investigate, sometimes hear about horrific behavior, and then try to navigate the difficult waters to rebuild in the aftermath to make things right.  We do pay audits that may uncover discrepancies, we have to beg and plead to find money to rectify the situation.  We advocate for a minority candidate when the hiring manager is concerned about “fit.”  (Ugh.)  We put our credibility on the line to solve these problems.

We do hard things.  It is not easy to do a layoff.  It is really not easy to discipline someone who we like personally.  It is not easy to walk a production floor when there’s a unionizing campaign in progress.  Nevertheless, we do these things, because we’re in HR and sometimes we have to.  We don’t get to hire and promote all the time.

It’s more important to be you. Being you means you have good days and bad days because you’re human. Some of the best HR people I have ever worked with are curmudgeonly – surly even – but they still showed people that they care about them, want what’s best for them, and will advocate for them. We can’t create connections with the people we work with if we’re putting on a forced smile or bubbliness.

My advice is this: work on you. Know you. Then, stay true to that. People will respond to that.


Photo by Alejandro Alvarez on Unsplash

Me & You Metrics

I wear an Apple Watch.  I have since they debuted in April 2015.  I love it even though I rarely use all of its functionality.  I track my calories burned, whether I work out, get all the notifications from Twitter to reminders to actually breathe.  (Little nugget – I have only missed my stand goal twice in nearly four years.)  I’ve metric-ed myself to death with Ive (my watch’s name).

Yet, I would never share all of this information with an employer.  You can tell where I’ve been, whether I went up a flight of stairs, or my heart rate at a particular time. You’d be able to figure out so much about me, my habits (good and bad), and could even use the information to determine if I’m a good employee.  (She sits too much when she should be chatting with customers or getting parts.)

My personal beliefs of biometrics are part of the reason I’m less-than-enthusiastic about recommending employers use them.  I love the idea of determining if there’s a better way to lay out a manufacturing floor, whether we could reduce real estate costs by encouraging hot-desking, and I’m even for handing out Apple Watches to employees for wellness purposes.  But I just can’t get endorse an employer gathering this data and then making employment decisions based on the data.

My biggest concerns surround privacy and the potential for misuse of personal health information.  Employers don’t get to know what I do off work provided it doesn’t affect the workplace.  If an employer knows, could I get terminated for spending too much time at a movie theater rather than reading business books?  What about not spending the night at my house but at a friend’s? Biometrics can allow data gatherers to be the Big Brother technology has often been portrayed as.

As for health information, biometrics are implicated by the Americans with Disabilities Act, Genetic Information Nondisclosure Act, and many state laws.  Imagine being an employee in a wheelchair where steps taken are not going to be tracked.  Does that mean that that employee is not going to be considered when the health data is aggregated into an analytic tool that determines who should be promoted?  Or imagine being an employee who struggles with his weight who has trouble meeting his step goals.  When his fitness goals are not met, does that mean he could be terminated, maybe even in an effort to reduce overall health costs. (This would likely be unlawful under ERISA, but that might not stop an overly cost-conscious employers.)

To this end, I recently went on XpertHR’s HR Podcast to discuss a new decision out of Illinois on biometric data collection and the possible impact on employers from coast-to-coast.  I encourage you to listen.  You can listen here.

Photo by Alvaro Reyes on Unsplash

Happy Birthday, tHRive!

Today is a big day!  Today, tHRive Law & Consulting turns one.  In just the past year:

Human resources and employment law are ever-changing and exciting.  Our work touches nearly everyone, making it incredibly meaningful and challenging.  This is why I love it.  I can’t think of another area of business or law I’d rather be in.

tHRive Law & Consulting made it through one of the most significant milestones of any start-up – the first year.  I could not have done it without the support of so many and the confidence of my HR tribe.  For that, I am eternally grateful.  Thank you!

Now, onto the challenges of year two!

Photo by Markus Spiske on Unsplash

Twin Cities Sick & Safe Time

For those of us HR and employment law nerds, the goings-on about paid sick leave in Minnesota has been fascinating and at times, nail-biting.  Minneapolis reached its ordinance first, St. Paul quickly followed suit, the Republican-controlled Legislature got really, really upset, and then Governor Dayton squashed the Legislature’s hopes.  Ah, the drama!  Now, that the legislative kerfuffle is over, it’s time to focus.  If you do business in the Twin Cities or you have employees who spend more than 80 hours a year working here, these ordinances require your attention.

What the Ordinances Do

The ordinances are called “Sick and Safe Time” ordinances, designed to give employees time off for illness (their own and their immediate family members), time off when an employee (or family member) has been the victim of domestic abuse or stalking, certain public health emergencies, inclement weather, and other closures due to loss of power or HVAC operations.  Minneapolis and Saint Paul want to employers to provide this time to promote employee well-being and improve the overall health of each city.

The similarities between the ordinances are many, but both have their own quirks.  Here is a breakdown of each ordinance:


Saint Paul

Employers with 5 or fewer employees need only provide time off, the time does not need to be paid Employers of all sizes must provide paid time off.  However, for employers with 23 or fewer employees, the ordinance does not go into effect until January 1, 2018
Employees accrue 1 hour of time off for every 30 hours worked Employees accrue 1 hour of time off for every 30 hours worked
Employers may impose a cap of 48 hours Employers may impose a cap of 48 hours
Employees can carry over time, but an employer can cap the amount of available time to 80 hours Employees can carry over time, but an employer can cap the amount of available time to 80 hours
Employers may grant the leave in advance (i.e. employers can front-load the time) Employer may grant the leave in advance (i.e. employers can front-load the time)
Employers can prohibit employees from using the time in the first 90 days of employment Employers can prohibit employees from using the time in the first 90 days of employment
Employees may use the time in a manner consistent with business/payroll practices, provided the time is no more than 4 hours at a time Employees may use the time in a manner consistent with business/payroll practices, provided the time is no more than 4 hours at a time
Startups (under a year old) can provide unpaid time in their first year (until July 1, 2022) Startups (within six months of hiring employee number 1) can provide unpaid time.  After six months, the employer must provide paid time off.
Minneapolis has a notice provision and a poster Saint Paul has a notice provision and a poster
Employees can lodge complaints of violations with the City of Minneapolis Department of Civil Rights Employees may lodge complaints with the City of St. Paul or may bring a private action (litigation) in court

The Saint Paul ordinance’s private right of action provision is controversial and a big deal.  If the employee is successful in bringing a claim, the employee may also get attorneys’ fees and costs.  (Spoiler alert:  Attorneys are not cheap.)   Minneapolis’ ordinance does not provide for such a right and instead, employees can only lodge a complaint with the Minneapolis Department of Civil Rights, which can determine how to handle the complaint.  While the availability of a private lawsuit shouldn’t sway an employer to implement policies consistent with the ordinance, it should give an employer pause.

Some Challenges

The ordinances are a bit of a challenge to implement.  Many (if not most) employers grant time off based upon years of service, not on hours worked.  This presents the challenge of counting the hours, making sure the way the employer grants time is equal to or greater than the ordinance allotment.  Another challenge may require employers to revise or rewrite their policies.  Depending on the employer, this may involve drafting a detailed list of how an employee may use the time to be consistent with the ordinances.  A policy doesn’t have to list all the ways, leaving room for some flexibility, but that said, some employers may want to be more explicit to make compliance clear on the surface of the policy.

Here are a few scenarios that you may be facing:

  • If you offer paid time off (PTO) and your PTO policy allows employees to take time off for the same reasons the ordinances allow employees to take time off and in equal amounts or greater amounts than what the ordinances require, you don’t need to take any action. Your PTO policy is probably already compliant.
  • If you offer sick time separate from vacation, you will need to review your sick time to make sure you grant the same amount (or more) than the ordinances and you permit employees to use the time for the same reasons the ordinances allow employees to use the time.
  • If you offer unlimited time off, your program is probably in compliance provided you are providing payment for the time off and encourage employees to take the time.
  • If you don’t offer any sick time (or PTO), the ordinances provide a framework to offer time.

For more information, take a look at the resources available for employers from both Minneapolis and Saint Paul.

The Injunction

Both ordinances attempt to extend beyond their own borders by covering any employee who works more than 80 hours a year within the respective city.  For example, if an employer was headquartered in a suburb, but employees regularly work in the big city, the employer would have to provide paid leave to those employees too.  Businesses were really upset by this and the Minnesota Chamber of Commerce challenged the Minneapolis ordinance in court.  The Chamber was partially successful and obtained an injunction on this issue, which it is up on appeal.  The hearing on the injunction is scheduled for July 11, 2017 – ten days after the ordinance goes into effect.  While we probably will not get a decision until September or later, risk-adverse employers whose employees only occasionally work in the Twin Cities may want to still implement sick leave while the appeal is pending.

New laws are always a challenge for employers.  These ordinances are no different.  While Minneapolis promises not to “enforce” the ordinance for the first year, employers should be looking at their policies, updating where necessary, and identifying where we could offer more benefits where compliance would require it.  Your friendly neighborhood employment attorney is here to help.  Use us.

Do You Want Employee DNA?

Our DNA is what makes each of us unique.  It also holds secrets.  It can tell us where may suffer from breast or colon cancer, where our ancestors are from, and what eye color our kids could have.  All of this is very, very cool.  But do we need to know our employee’s DNA?

Congress took action in 2008 to prevent DNA and family medical from getting into the hands of employers.  When the Genetic Information Nondiscrimination Act (GINA) passed in 2008, well over 90% of the House and Senate voted in favor.  GINA prevents employers from obtaining and using this information to make employment decisions.  The EEOC enforces GINA, working to prevent harassment, discrimination, and even retaliation.  With a bill currently before Congress, some of this could change.

As Jon Hyman recently explained, Congress is considering a bill that will allow employers to ask for personal and family medical histories, including DNA, provided the employee gives the information voluntarily.  If the employee refuses, he could not receive the 30% premium reduction incentive.

Imagine what a devil-on-a-shoulder of an employer could say if it had employee DNA and family medical histories.  “Don’t promote (or recognize) her, she’s got BRCA1, and her mom died of cancer.  She’s too expensive.” Or when a shoulder devil learns about an employee with a special needs child who has had several heart surgeries.  “Uff. That family’s health care costs are too high.  He’ll probably need so much time off and cost us a lot.”  While I’d like to believe this wouldn’t happen, it is exactly what plaintiff attorneys suspect will happen.

There already are services that can help reduce health care costs using employee DNA.  Take Newtopia.  Newtopia matches employee DNA, a fitness tracker, dietary log, supplements, and personalized coaching to reduce employer health care costs.  According to Newtopia, it really works.  For one employer, Newtopia’s program saved an employer over $1,400 per employee per year.  That’s a lot.  Something some employers can’t ignore when health care costs are skyrocketing.

Yet, we don’t want our employer to have our DNA.  I recently used Newtopia’s marketing video in a presentation to 30 HR executives.  When I looked at their reactions, several had their mouths agape.  I get the same reaction when I share this information with employment attorneys.  They know that employee DNA is sensitive and could create problems.  One, that many of them don’t want.

Empathy & What To Do About It

The last few weeks, I’ve spent a large chunk of my time talking with HR teams about politics.  It is hard not to talk about politics these days.  Politics can (and have been) all consuming lately.  Research has shown that companies that take a political stance benefit while others feel they need to be silent.  We’re seeing the politics of the pocketbook for certain brands for some consumers.  Regardless of your organization’s stance, there is one thing that HR pros and their organization need to do.  Show empathy.

There are two main reasons empathy is key.  One is that it is good for business.  Recent research has shown that when managers show empathy, employees are more engaged and business improves.  Listening to employees, understanding their needs, and responding to those needs create employee loyalty and strong employer brands.  Not showing empathy could spell disaster.

The second reason is that we all need a little empathy right now.  For many, these are scary times.  It is important that we see each other, hear each other’s concerns, and while we may not always agree, we still have to acknowledge the feelings of others.  And, the feelings are strong and deeply, personally felt on both ends.  The polarization of the world affects the workplace.

A good example is the Ninth Circuit Court of Appeals’ decision last night on the immigration Executive Order.  Some employees may have done a little dance while others may have feared a terrorist attack is now imminent.  But both sides need to work together.  In situations like this, employers should:

  • Allow the event to happen. Don’t block outside internet sites, turn off the news in the cafeteria, or strictly enforce bans on personal smartphone use.  Allowing employees to know what is going on will help later in this process.
  • See all your employees. If you have some HB1 holders, they are likely fearful.  Other employees may be championing the new administration.  You can’t listen to employees if you don’t know who they are.
  • Hear your employees. Talk with your HB1 holders and express your commitment to them.  Minority employees may be more cautious in the workplace.  Ask for their input, their voice is important to your success.  Understand that both sides exist in your workplace, hear them out because if you don’t, the slow, unacknowledged simmer will eventually boil over.
  • Allow employees to express themselves. But their expression doesn’t mean they get to cause disruption or otherwise hurt the company.  Don’t terminate employees for participating in protests provided they don’t do so while representing the organization.  Employees can feel strongly and march against XYZ, just maybe not in a company t-shirt.  Posting signs that could enflame feelings can be taken down.  Respect should rule the day in the workplace.
  • Everybody works together. A DJT voter works with a Hillary voter.  Your company’s mission – whether it is crafting the best wingnut to saving the whales – wins out every time.  If employees can’t work together or refuse to do so, they are not helping the company do what you do.  If reminding employees about this doesn’t work, then it may be time they move on.

Empathy is a secret sauce in an organization, because it is hard.  But it is worth it.  Listening to employees prevents resentment that can turn into litigation.

Image courtesy of vecteezy.com