What voters in Alabama should know about negligent hiring

December 8, 2017

One of the most pervasive practices among employers is to complete background checks before extending offers of employment.  They do so to ensure that they do not engage in a “negligent hiring” practice.  Essentially, that doctrine holds that should employers fail to do criminal background checks, contact references or obtain credit score reports, they could be held liable should the new hire bring another employee or customer harm.

Next Tuesday, the voters of Alabama will decide who will be their next junior United States Senator, replacing Jeff Sessions, the current Attorney General.  I am wondering how they would feel if their employers were to knowingly hire a sex offender.  My experience in HR includes hiring some people with minor criminal offenses, usually white collar in nature.  Those hires always caused a little anxiety in the employee ranks.  While the citizens of Alabama and their U. S. Senator do not have an employment relationship, here’s hoping that they will see the analogy I am attempting to draw with this post.

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Let’s get Sexual Harassment out of HR!

December 6, 2017

The recent tsunami of high profile, celebrity allegations of sexual harassment should prompt Human Resources Departments to revisit their role with regard to the investigation and disposition of substantive complaints.  The contrasting examples of Fox News and Fidelity Investments clearly illustrate the point.  Fox settled and paid hush money to victims.  Fidelity fired a rock star portfolio manager and Abby Johnson moved her office to the 11th floor where PMs work.  Lessons learned: paying victims for their silence as they exit is wrong on many levels and does nothing to curb unwanted behavior in the workplace.  Direct senior management involvement does.

To place things in context, most experienced HR practitioners realize that many harassment complaints are easily remedied.  “Bill told an off color joke in a meeting.”  Great.  Tell Bill to stop telling jokes that offend others. But what of the more serious claims of quid pro quo and hostile environment sexual harassment?  And what about the retaliation that often follows the refusal of unwanted behaviors?  Is HR viewed as the right party to handle these?  In our view; no.  Here are a few reasons why. 

·         Placing responsibility to investigate harassment allegations puts HR managers in an untenable position.  One of HR’s role is to advocate for all employees.  That includes both the accused and the accuser.  Asking HR to also protect the employer’s interests as detective, prosecutor and judge severely compromises the principle of procedural justice. 

·         Employee perception is that HR is simply not helpful.  In her article that elaborates on the perception, Tovia Smith of NPR recounts the case of a young woman who questioned whether HR “considered her to be more of a threat to the company than her harasser to be a threat to her.” 

·         HR practitioners are poorly trained to investigate complaints of sexual harassment.  SHRM’s own Body of Knowledge, the defining set of competencies for the profession, does not include skills related to conducting investigations.  Functional Area #14 states that HR professionals should know U.S. Employment Law and Regulations.  And while SHRM  publishes some tools for conducting investigations, it also warns that: “Conducting workplace investigations is one of the most challenging duties that HR professionals must take on.”

·         The power structure within the organization, which includes HR, is not a level playing field.  The HR function typically reports into other functions such as Administration, Finance or Operations.  Some HR departments report directly to the CEO.  But even in that case, there is a disequilibrium.  Take the 2006 case at Caritas Christi when Helen Drinan, SVP of HR had to investigate allegations of sexual harassment involving her CEO, Dr. Robert Haddad.  In essence, she was investigating her own boss.  Only when an external investigation was completed was Drinan’s recommendation to terminate Haddad validated.

These factors, among others, also contribute to HR’s poor brand with outside observers.  HR is “as bad as FEMA after Katrina,” says Dr. Gary Namie, a social psychologist and director of the Workplace Bullying Institute.  He goes on to explain that HR is largely a support function whose primary duty is to mitigate risks for the organization.  If this perception is pervasively held both internal and external to the organization, what chance does HR have in putting people first?

So what is the call to action?  The Caritas Christie example offered above supports the idea of outsourcing all investigations of sexual harassment.  This practice, though expensive, is becoming more common.  Outsourcing investigations has been effectively used in other HR areas such as Workman’s Compensation fraud.  Colleges and universities are also turning to outside professionals when Title IX issues arise.

There are other ways to address the current situation should outsourcing not be viable.  One practical approach when keeping things internal is to place the responsibility for investigating with the Chief Ethics/Compliance Officer. Financial institutions and investment firms deploy large staffs to ensure that SEC regulations are followed.  The compliance officer typically reports directly to a committee of the board to ensure that even the senior most parties are not above compliance.  Replicating this model when violations of the sexual harassment policies arise makes a lot of sense. 

Alternatively, a hybrid approach would be to provide an objective external resource to coach those stepping forward with complaints.  Companies like Bravely are becoming increasingly popular because in the words of CEO Toby Hervey; “We offer an alternative starting point that’s totally confidential, and totally safe, because it all lives outside the walls of the company.”

This does not mean to say that HR should have no role when it comes to sexual harassment prevention.  Designing and implementing sexual harassment training for managers and employees remains a legitimate role and one in which HR is competent.  Additionally, HR can and should “call out” behaviors that approach the standard of hostile environment harassment; those that are offensive, unwanted, severe and pervasive in nature. 

At the end of the day, the manner in which allegations of sexual harassment are handled by HR is not working.  The EEOC reports that complaints regarding sexual harassment have remained constant at about 12,000 per year for several years.  In other words, employees are seeking outside help.  Other survey data show that more than 50% of women report having been harassed at some point in their working careers.  Additional data show that most leave the organization rather than bringing forth allegations, a practice that is seen as career limiting.  Ignoring the data does damage to organizations and their employer brand.  Web pages such as Glass Door and the more conventional social media platforms facilitate the growth of a #metoo like phenomenon.

Most conversations I have overheard regarding the recent proliferation of allegations include remarks like; “It’s been going on forever” and  “Nothing is going to change.”  We cannot morally, ethically, or practically be willing to accept the status quo.  We are doing damage to the talent we say we covet.  Now is the time to take action to protect that human capital.

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Abercrombie decision in on target

June 8, 2015

I don’t often find myself in agreement with Justice Scalia, but in the EEOC v Abercrombie and Fitch, he got it right.  In his decision, the Justice writes; ““The rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,”

One thing we must wonder about as HR practitioners is the degree to which hiring managers are aware of the law on disparate treatment.  Most of the time discrimination cases are about adverse impact and those are much more nuanced.

So, maybe its time to consider some additional training as the workforce becomes more global and diverse.

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Marriage Equality & Workplace Discrimination

October 31, 2014
Employees in five states exist in an environment of contradiction.  Indiana, Oklahoma, Pennsylvania, Utah, and Virginia are among the 11 states where marriage equality became reality with the Supreme Court’s refusal to hear appeals related to state bans on same sex marriage.  They are also five states where there are no protections for gays and lesbians in the workplace.  Said differently, being fired for being openly gay is legal in these states.  So, an employee can marry their same sex partner, celebrate, share the joy with co-workers and be out of job the next day.

This, of course, is not an ideal state of affairs.  ENDA, the Employment non-Discrimination Act has languished in Congress with no apparent hope of passing as long as the Republican Party controls the House of Representatives.  Only a decision from the Fifth Circuit Court of Appeals upholding a ban will force the Supreme Court to rule.  Some experts say that is not likely to happen.

So, what can be done in the short term to reconcile the status-quo?  As with many issues in the past, the corporate sector needs to take the lead in formulating and promulgating policy that ends discrimination on the basis of sexual orientation.  This was the case with the granting of personal leaves of absence long before the FMLA came into effect.  In other words, government followed corporate practice in enacting the FMLA.  My sense is that the same can happen now with ENDA.  If big employers take the lead, others will follow as the competition for talent intensifies with the improving economy.

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Do this! Now do that!

May 15, 2014

Do this! Now do that!

In my coaching practice I sometimes catch myself giving seemingly contradictory advice.  “You will need to be more patient.”   And, “You will need to focus on driving for results.  Or, “You will need to teach others how to do this so as to free yourself up a little.” And, “You have to get this done with some sense of urgency.”

I am sure I am confusing some of my clients.  But, I am also hoping to make them aware of some the paradoxes inherent to leadership during times of change.  Being a change leader is hardly a science.  Rather it takes what Ronald Heifetz calls “getting on the balcony” to see patterns and trends needed to guide the organization toward desired states.  Once leaders “get on the balcony” they can better envision what is needed at any given time.  Here is what effective leaders of change seem do know how to balance.

  • The need for patience and impatience – that is, helping others gain a focus while recognizing that tension can and should be reduced over time. People are resilient but cannot maintain a sprinter’s pace for long.
  • The need for action and flexibility – that is, maintaining an overall line of sight in terms of direction while working toward short term objectives that may change. Smart leaders chunk change efforts into stages and place mileposts at intervals so people can see their progress.
  • The need for results and attention to process – that is, the benefits of slowing down a little in order to accelerate later; to make mistakes early while also trying to get early wins.  The better change leaders know the difference between setbacks and adversity.  They also know that learning from both is a critical component of change management.
  • The need to recognize resistance as opportunity – that is, to overcome the natural inclination to knock down barriers vs. using the reactions to inform new tactics and strategies.  Surfacing resistances is much better than trying to deal with covert concerns and activity.
  • The need to drive and enable the change – that is, to take responsibility for “doing” the change while “teaching” others to manage changes themselves going forward.   Smart change leaders are constantly increasing their bandwidth by delegating tasks to others as development opportunities and stretch assignments.

What paradoxes do you see as required in your role as change leader?

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The Overlooked Implications of the Michigan Affirmative Action Decision

April 24, 2014

On April 22, 2014 the Supreme Court handed down a 6-2 decision (Justice Kagan recused) upholding Michigan’s amendment to the state constitution known as Section 26.    Voters approved Section 26 in 2006 prohibiting state entities from granting race-based preferences in the operation of state universities or public employment.  The decision is widely viewed as a setback to supporters of Affirmative Action.  Currently, there are 10 states that have measures in force similar to Michigan’s Section 26. The case is officially labelled Schuette v. Coalition to Defend Affirmative Action.

Writing for the majority of the Court, Justice Kennedy said, “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.”  In other words, let the voting public decide whether or not race based preferences should be prohibited or not.

Justice Sotomayor in dissent, however, points to the impact of this “hands off” approach by the Court.  She points out that since 2006 when Section 26 went into effect, minority enrollment at Michigan’s public colleges and universities has declined roughly 25%, from 12.15% in 2005 to 9.54% in 2012.”

The decision’s primary focus is on the University of Michigan’s admissions process and consequently most of the reaction has been in the higher education domain.  But what seems largely forgotten, however, is that the ban extends to public employment as well.  And as Human Resources practitioners, we have cause for concern as well.

What if more states adopt provisions similar to Section 26?  That would mean that more and more state and municipal agencies would not be allowed to consider race in their employment practices.  Extending the hypothetical would most certainly result in a perpetuation of underrepresentation of minorities in the workplace as well as disproportionately high unemployment as compared to whites.  Said differently, the impact that Justice Sotomayor points out at Michigan would be replicated in the workplace.

The history of discrimination and preferences in employment is pretty clear.   Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, national origin, gender, and religion.  Subsequent legislation extended protections on the basis of age and disability.  Affirmative action has its roots in Executive Order 11246 signed into law by President Johnson in 1965.  Executive Orders generally apply to federal contractors.  President Obama recently signed an Executive Order directing federal contractors to pay a $10.10 minimum wage.

Equal Opportunity (prohibiting discrimination) and Affirmative Action (preferences based on race or other protected status) are not the same thing.  The Court’s decision in Schuette v. Coalition to Defend Affirmative Action seems to validate the distinction.  But, the decision notwithstanding, we must as HR practitioners continue to advocate for employees, present and future, not only to ensure that we have the right talent but to ensure that our organization is doing the right thing.

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Leadership tenets

April 3, 2014

As many of you know, I have been a facilitator for NASA’s Mid-Level Leader Program (MLLP) for the last three years.  On April 2, the fourth cohort graduated from the program.  David Radzanowski, Chief of Staff at NASA gave the Graduation Address to the graduating class.  I asked Dave if I could share the “leadership tenets” he offered in his speech.  Here they are.  I find them to be incredibly profound and practical.

  1.  Always assume positive intent – most people are trying to do what they think is right.  While we may not always agree on methods or outcomes, most people are trying to add value.
  2. Always strive to be uncomfortable – to grow, you need to challenge yourself.  Find the stretch assignment and volunteer for it.
  3. Delegate to the point of negligence – you need to work your way out of your job.  So, trust your team and challenge them whenever possible.
  4. Failure is an option – be innovative and intuitive.  When mistakes happen, learn from them.
  5. Take care of your team – give them the credit for successes and take the blame for mistakes.  Walk around and talk with them on their turf.  Your office is boring.
  6. Take care of yourself – schedule time for yourself and don’t let work interfere.  Time with your family and friends is as important if not more than your career.  No one wishes on their death bed that they had  attended that meeting they missed.

 Sincere thanks to Mr. Radzanowski for allowing me to use his tenets.  I hope you find them as helpful as I do.  Dave concluded with a quote from President John Quincy Adams.

 “If your actions inspire others to dream more, learn more, do more and become more – you are a leader.”

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The debate over the federal minimum wage

February 25, 2014

The Minimum Wage Debate

There has been a lot of talk lately about raising the minimum wage at the federal level.  President Obama’s recent Executive Order raising the minimum wage for those employed with federal contractors to $10.00 is a symbolic move that affects about 400,000 workers.  History tells us that Executive Orders can have impact over time as did Executive Order 11246, signed by President Lyndon Johnson on September 24, 1965, requiring federal contractors to have Affirmative Action programs in place.

At the same time, the data regarding the financial impact of raising the minimum wage to $10.00 per hour appears mixed.  The Office of Management and Budget projects that about 900,000 wage earners would be elevated from below the poverty level with such an increase.  But, they also project job losses of about 400,000 as employers hesitate to add new staff or reduce the number of employees already in place.

The human side of the story is the more compelling one, however.  It is a disincentive to work a 40 hour week and still live below the poverty line.  From a human dignity point of view, it just does not make sense.  The combination of an increase of the minimum wage along with some modifications to the earned income tax credit would help wage earners teetering on the poverty line to participate more fully in the economy, both as contributors to it and beneficiaries of it.

My sense is that there is more momentum for increases of the minimum wage at the state level.  California is leading the charge.  But without some additional help at the federal level, the plight of the currently marginalized minimum wage worker is still very much in jeopardy.

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