How Would We (I) Function in This Employment World
Posted
10:04 AM
by Michael Fox
A guest blog post on CNBC by Julie Clow, author of The Work Revolution: Freedom and Excellence for All, caught my eye this morning.
Since I write about the world of work, any article that starts this way would do so:
Maybe we have it exactly wrong.
Maybe we should all be wildly different from each other in every way, down to the way in which we get our work done.She envisions a much more decentralized world of employment, explained (briefly in the article) around these four principles:
- It’s about individual strengths, not job slots.
- The more diverse we are, the better the wisdom of the crowds.
- If we accept our diversity as a given, then schedules are anathema to progress.
- It’s about impact, not activities.
But maybe the only way to really take on the future is to blow up the way things have always been done, and of necessity that includes the HR function as well. It may actually be happening more than is readily apparent.
Anything that makes it more difficult for HR probably means more business for my types.Which, with all due consideration to my partners, is not really a good thing.
Labels: HR general
Body Mass Index As a Hiring Criteria
Labels: discrimination, HR general
A Timely Follow Up -- The Importance of Action Not Words
Labels: bullying, HR general
Workplace Violence Gains Formal OSHA Investigation Procedures
Labels: HR general, safety
Federal/State Cooperation on Independent Contractor Issue
Labels: HR general
Putting Me and Other Employer's Lawyers Out of Work
Labels: HR general
Compliance Plans -- Showing How You Are Not Breaking the Law
Labels: HR general
Social Media and Hiring -- Interesting Data, But So What?
Labels: HR general, social media
Performance Appraisals: Out Damn Spot!
Labels: HR general
8 Days of Christmas? No, 8 Parts of Executive Employment Agreement
Check the article for the details. Labels: HR general
More Gray Hair in the Cockpit - Commercial Pilots Can Now Fly to 65
Labels: HR general
One of the Better Headlines: Shirking Working: The War on Hooky
Congrats to Business Week for their story and what struck me as one of the more clever headlines in awhile, Shirking Working: The War on Hooky. Among other things the article points out how businesses are going to software analysis to determine when and more importantly why, people aren't showing up for work when they are supposed to. And as anyone but certain bosses might think, the problem doesn't always lie with the employees. For example: At one manufacturing company, a group of employees loathed their manager's style. The sentiment went unnoticed by the C-suite until a software program created by Convergys started scouring the department's data and found it had a high absence rate compared with other units. At that point, Convergys performed an "intervention" with the manager's employees: confidential focus groups where the workers could vent. Once the company attended to the problems, attendance rose. Labels: HR general
Employment and Labor Law Blogs - An Expanding Field
When I finally get around to updating my blog format and have a better blogroll, I can include all these and the many others that are now getting closer to being old timers as well, that have joined the fun. Labels: HR general
A "Sick" Business Model
And I thought the worse thing an employer had to worry about was a doctor being overly generous to their patient in passing out no work slips. Labels: HR general
Lookism - An Amusing (?) Survey
For ginger hair, baldness and large ears, plus a dozen or so more characteristics and some actual comments read the article itself. Labels: HR general
Advisor or advocate. Which hat am I wearing?
Labels: HR general
Academic Proof for What You Already Knew
Everybody brings their emotions to work. You bring your brain to work. You bring your emotions to work. Feelings drive performance. They drive behavior and other feelings. Think of people as emotion conductors. Labels: HR general
I'm Not Sure Why It's News — But "Fear of Firing" Lays Out Some of the Concerns
Labels: HR general
Guns vs. Business on the NYT Editorial Page — and the Texas Version
There is no debate that doing so [allowing guns at the workplace] endangers workers. Workplaces that tolerate guns are five to seven times more likely to suffer homicides than job sites that ban firearms, according to a 2005 study in The American Journal of Public Health. The notion that self-defense mandates keeping guns in office drawers or out in parking-lot glove compartments is a dangerous fantasy. Even worse, SB 534 has already passed the Senate, and like its counterpart HB 992 (also passed out of committee), provides a cause of action for anyone discharged for having a gun on an employer's parking lot that has complied with a convoluted scheme involving the employee providing his supervisor a written statement that he has a gun, along with copies of the gun license and allowing the employer to provide an alternative place for storage. I can just see it now, instead of a hat check closet, employer's will now have a gun check closet. I am not terribly optimistic that these bills won't make it through the legislature. If you are concerned, you better speak up soon. Labels: HR general, political
Why Talk to the Fisherman When You Can Hear From the Fish?
I have always thought that rather than listen to what a defense lawyer thinks are the reasons employees bring lawsuits against their former employers, you would be much better off hearing it from plaintiff's lawyers. Sort of a take off on the old saw, why would you listen to a fisherman about catching fish if you could hear the fish. In any event Walter Crowson, a defense lawyer, gone, at least partially over to the dark side has these insights about why fired employees made their way to his office. The article was originally printed in the Texas Lawyer, Confessions of a Part-Time Plaintiffs Employment Lawyer. His points (explained more fully in the article): Although I am much more like the fisherman — having done it for 30 years, what he says has the ring of truth to me. Labels: HR general
Posted
1:11 PM
by Michael Fox
Hat tip to (probably my favorite blog title in our corner of the world) the Evil HR Lady for catching news from my own back yard, see the original news article, Victoria Hospital Won't Hire Very Obese Workers, as Victoria is just a couple of hours down the road from me, but also a brilliant commentary on the policy itsefl.
Hard to top anything Suzanne Lucas has to say in her post, Is it okay to discriminate against obese people?, so just check it out.
One thing that I did find interesting was the comment from the Administrator that it was based on the preference of patients.
Although client preference alone does not automatically push one across any legal boundry, over the years it's one of those "red flag" type comments that tends to make me sit up and pay attention because there could be something troubling about to occur.
It's a risky policy I'd counsel against.
As to client preference, that was tested to the max in the 70's when the NYS Commission filed charges against a topless bar on behalf of a topless dancer.
: 4:04 PM
Posted
5:44 PM
by Michael Fox
Given the topic of my previous post --- the need for employers to step up and make sure they dealt with bullying behavior rather than leaving it to legislation --- it was ironic to come across Bob Sutton's post, Adopting The No Asshole Rule: Don't Bother If The Words Are Hollow.
The first part of that title is a big step for employer's solving the bullying problem; but it only works, it you follow through.
Posted
10:49 AM
by Michael Fox
On September 8, OSHA issued Directive CPL 02-01-052, which for the first time establishes procedures for investigating workplace violence complaints.
Two industry groups get singled out for particular focus:
Healthcare and Social Service Settings
This category covers a broad spectrum of workers who provide healthcare and social services in psychiatric facilities, hospital emergency departments, community mental health clinics, drug abuse treatment clinics, pharmacies, community-care facilities, residential facilities and long-term care facilities. Workers in these fields include physicians, registered nurses, pharmacists, nurse practitioners, physicians’ assistants, nurses’ aides, therapists, technicians, public health nurses, healthcare workers, social and welfare workers, security personnel, maintenance personnel and emergency medical care personnel.
Late-Night Retail Settings
This includes entities such as convenience stores, liquor stores and gas stations. Factors that put late-night retail employees at risk include the exchange of money, twenty-four hour operation, solo work, isolated worksites, the sale of alcohol and poorly-lit stores and parking areas.
In determining whether to conduct an investigation, OSHA personnel are to take into consideration known risk factors as identified by NIOSH; whether it is in one of the high risk industries identified by OSHA (see above) and whether feasible abatement methods exist to address the hazard(s).
There is no specific violence in the workplace standard, but there is the general duty clause, and the Directive mentions some other standards that might come into play:
This Directive is a must reading for these two industries and for all those who are on your crises management team . (You do have a crises managment plan and team, don't you?)
Posted
11:26 AM
by Michael Fox
It does not seem very often that any headline that involves government can properly use cooperation these days, but yesterday's story on NPR, Labor Dept. Expands Enforcement Of Wage Violations, indicates that the Department of Labor is signing agreements with various state agencies to share information that will allow both to go after companies which "mis-classify" individuals as independent contractors.
For governments the bottom line is that when an individual is an employee, it gets more money and it is more easily collected, than when an individual is an independent contractor. If you are an adherent of the "follow the money" line of reasoning, that is enough to make you take notice that you should make sure that your independent contractors, really are that.
The states that have signed agreements so far (and thus states where you really should turn up your own scrutiny, rather than wait for someone else to do so) are Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington, with New York and Illinois lurking in the wings.
Posted
5:27 PM
by Michael Fox
David Yamada and I have never met but have developed a friendship via the net. Even though we often have different views, usually not on the desired result, but on the ways of getting there, based on our civil conversations in an area where that is not often the case, I think it is fair to say that David would never wish me ill, in a financial sense or otherwise.
However, clearly in his most recent post, What if we applied the Golden Rule at work?, he has intentionally or otherwise stumbled on a concept that if followed would clearly lessen the need for those on both the defense and plaintiff sides of the employment law bar, including yours truly.
Just to emphasize David's post, for all the training I have done about employment law, best hr practices, employment law trials, not making juries mad, positive employee relations, etc. at the end of the day, the Golden Rule is a most apt summary for each of those topics. And actually one which is really hard to improve on.
Unfortunately, I don't think it is likely the need for employment lawyers is going to end any time soon.
But a basic tenet, well known and available to all, that really could lessen the need, is there for all of us to see.
Many companies are grasping the concept of treating their employees the way in which they themselves would like to be treated. However, there is still a huge quantity of companies who do not practice the golden rule.
: 9:24 AM
Posted
1:35 PM
by Michael Fox
Seth Harris, the number two person in the Department of Labor, has announced the intention of the DOL to require employers to adopt compliance plans "aimed at ensuring they do not violate wage, job safety and equal employment laws," according to Steve Greenhouse's report in yesterday's New York Times, U.S. Outlines Plan to Curb Violations of Labor Law.
This will be in the form of regulations, which the article notes will be more than a year long process. Additionally, many of the ideas are still being "worked out" but the one concrete example is an interesting one, the use of independent contractors. According to the article, Harris forsees the rules requiring an employer who uses independent contractors, to provide a written explanation of why they should be considered independent contractors rather than employees and give these workers a copy.
Obviously, the battle lines are being drawn. This announcement does nothing but re-enforce my view that just like a river, when one area of advance is blocked, the river does not go away, it just moves in a different direction. Without the ability to pass legislation, it seems ever more clear the new focus of the Obama administration in labor and employment will be on the regulatory front.
Posted
10:08 AM
by Michael Fox
Jon Hyman at Ohio Employer's Law Blog has a great post on a recent survey conducted for Microsoft on how employers world wide are using internet research in making hiring decisions, 70% of hiring managers report rejecting candidates following internet searches.
A detailed powerpoint has the January 2010 report prepared by Cross-Tab Marketing Services for a Microsoft division.
The points from the Executive Summary of impact on professional life are fairly telling (my comments in red):
There are also big differences in the use of such data. Worldwide 25% of recruiters do such checks "all the time", in the U.S. the "all the time" number is 44%, with 70% having rejected a candidate based on such a check compared to 14% for the French.
One interesting thing is the wide variety of sites that U.S. recruiters report they are checking:
And probably the most important set of U.S. data from an employment law standpoint, reasons for rejection:
Jon quotes himself to make a good point about the use of this data:
I have another problem with HR departments willy-nilly performing internet searches on job applicants – the risk that such a search will disclose protected information such as age, sex, race, or medical information.
I think that is a legitimate concern. I also think it may work against hiring activists or what Tom Peters calls "mavericks" in his latest book, The Little Big Things," which at least he would say is a bad thing.
A couple of other points on a post that is now way too long. If ENDA passes, which would extend anti-discrimination protection to sexual orientation, I think the searches could be even more problematic.
Still to answer the question I posed in the headline, so what?
I think this data should be a very big deal to those seeking work.
For employers? This may change, but the fact is, in my now 35 years of doing this, I can probably count the number of cases that I have handled based on failure to hire on the fingers of my two hands and it certainly would not exceed my fingers and toes.
Still just because it has been that way in the past doesn't mean it will in the future, and you can be sure data like this will be making for some interesting inquiries at depositions in the future.
Posted
1:19 PM
by Michael Fox
That's a little overboard and Chris McKinney's post, Getting Rid of Performance Reviews at HR Lawyer's Blog, actually has some helpful ideas for making them better.
Performance appraisals has always been one of my hot buttons, second only to job descriptions. About the latter my standard comment is -- if they are up to date and complete, they are excellent -- however, that does not describe any job descriptions I have ever seen.
Performance appraisals are probably more often done better, but there are way too many that are done at the last minute and do little if anything to really improve performance, and quite often are more likely as nothing more than candidates to be Exhibit 1 in the Plaintiff's case against the employer.
http://www.walterstrustinfo.com
: 6:12 AM
Posted
9:18 AM
by Michael Fox
Probably the lawyer in me that likes things that are organized in a way that enhances understanding, but a story in the Portland Business Journal about the 8 parts of an executive employment agreement struck me as a nice way to cover one of those topics that is perpetually on my "learn more about" list.
The eight parts listed by Portland lawyer, Paula Barran are:
Posted
8:08 AM
by Michael Fox
One of the few age limitations* that has been enshrined in legislation bites the dust, as Congress unanimously passes legislation allowing pilots flying for commercial airlines to fly until age 65, rather than the current 60. See Southwest pilots union praises new 65 rule.
Although I am sure this has been in the works for sometime so that some of the kinks have been worked out, I can imagine that it is causing some major rethinking of personal plans as pilots who had been nearing forced retirement now have a decision to make, while many more junior pilots are now looking at more years in the second seat than they had planned.
I probably wouldn't have thought of this as an employment related topic had I not defended a most interesting lawsuit a decade or so ago caused by confusion about who this rule applied to. I knew it was going to be interesting when I read the complaint and it quoted from a comment written on the plaintiff's resume - "What, pray tell, do we do with this? He is approaching his 60th birthday." Sure enough Exhibit A to the complaint was a photocopy of the resume with what was clearly a yellow sticky note attached to it, that contained those words in the HR manager's handwriting.
How did it end up in the plaintiff's hands? A mysterious fax from the company's offices was all that was ever known.
As you might guess, "interesting" does not always mean fun.
* At least on the end I now most personally identify with!
Posted
5:53 PM
by Michael Fox
Imagine that.
Posted
6:09 PM
by Michael Fox
My posting has been light recently. There was a week in Mexico and then a lot of time on the road for the paying part of my job. Four years ago when one of the regular employment law bloggers hit a cold patch it made for a substantial impact, but that is no longer the case.
While many of the "old-timers" like George Lenard, Ross Runkel, Michael Fitzgibbon and the crew at Lynch, Ryan whose Workers Comp' Insider just turned four last week, are still going strong, there fortunately has been a whole new group adding their collective insights. Just to mention a few recent articles from those relatively new, or probably more accurately, new to me (and my apologies to those I miss, although feel free to let me know):
P.S. Impressed with your knowledge of the "Nutmeg" state. Some prefer "Constitution" state, but I still like Nutmeg....
Posted
12:39 PM
by Michael Fox
Here's the latest - printing your own Doctored notes , according to a story in the Chicago Sun Times last month. Some of the links included in the article:
Posted
5:33 PM
by Michael Fox
James Richards, a lecturer in Human Resource Management in the School of Management and Languages at Heriot-Watt University in Edinburgh, Scotland, who has just submitted his Ph.D dissertation on workplace misbehaviour and in his spare time writes Work-related Blogs and News, the only blog I know that focuses on work related blogging, has an interesting post about Lookism.
Personnel Today, a British publication did a survey about different things which employees are teased about, apparently with the underlying thought that where there is teasing there might well be unfavorable treatment.
You can check out the chart in full at his post, but a couple of examples caught my attention. More people thought it was appropriate to tease others about their small breasts (49%) than about dandruff (29%) (5% of HR personnel surveyed thought it was permissible to tease about either small breasts or dandruff). Perhaps not too surprisingly, those surveyed thought it was better to tease about large breasts (63% of employees and 7% of HR personnel). And of those who had the characteristic in question, those who had actually been teased about it were
One quote from a business psychologist (not sure I knew there was such a specialty) really should come as no surprise to anyone: "Men emerge as less sensitive to other people's opinions, and what people say generally won't affect their [men's] opinion of themselves."
One question that did come to mind — where did the HR personnel that were willing to say that they thought it was ok to tease employees about breast size come from?
Posted
9:05 AM
by Michael Fox
I have been preparing for a round of speeches in the next couple of months, including this week at the 2007 Workplace Strategies conference hosted by my firm in Phoenix (blogging), at the 14th Annual Labor and Employment Law Seminar in Austin sponsored by the University of Texas School of Law on May 17-18 (million dollar verdicts) and then at the SHRM National Conference in Las Vegas at the end of June (bullying).
Somewhere along the way of preparing the papers and presentations, I started thinking about the different roles I have as an employer's lawyer, and how I always need to be mindful which hat I am wearing.
My law license from the state of Texas reads "attorney and counselor at law." Certainly much of what I do, both in speaking and my daily interaction with clients falls under the counseling hat — providing guidance about the legal context and ramifications of decisions which are about to be made. Sometimes no doubt that shades well over into advice on what would be a good human resource decision, although I always try to remember that expertise and certainly the ultimate decision is my clients, not mine.
The other hat I wear is as an advocate, where I am not so much helping shape decisions, but defending ones that have already been made. Although there may be considerable overlap, there are certainly large distinctions as well. As an advocate, I may frequently advance arguments — arguments that may well be successful in extricating a client from a particular situation — which I would never offer as advice.
Since those of us who represent employers as their lawyer are trained to think in legal terms, it is easy for us to jump quickly to the advocate position and stake out the limits of what might "legally" be done. But what can be done, is not always what should be done. And it is important for me to remember which role I am playing and make sure that I approach it from the proper perspective.
The same goes when giving (or listening) to an employment lawyer speak. It is good for employers to know the limits and what might be defensible in light of current decisions; but in helping employers determine what should be done, it is important that we make clear where on the continuum between advice and advocacy a particular piece of information resides.
Posted
6:08 PM
by Michael Fox
Emotions in the workplace are important. Professor Sigal Barsade of Wharton makes the point:
You can get the executive summary of her research at Managing Emotions in the Workplace: Do Positive and Negative Attitudes Drive Performance? — short answer — you bet.
The more academic version can be found at Why Does Affect Matter in Organizations?
Posted
1:02 PM
by Michael Fox
Since the lawsuit they featured was one decided last July (see $11m Verdict in the Nutmeg State), I am not sure what prompted today's lengthy article on the problems employer's face when they terminate employees, but whatever the reason, Fear Of Firing, is a good summary.
Any one who works in this world won't be surprised by any of the information, including that often performance appraisals are not candid which causes problems; or that when there is documentation of performance problems it is often used as evidence of "building a case."
Of more interest are the comments — although as one would suspect of those reading Business Week articles, they are more pro-employer than most jury pools.
Update: If you didn't check out the two graphics to the main article you should. One is a graphic representation, The Untouchable Nation, which gives a visual explanation of why every(literally) terminated employee can have a federal case; the other is a graphic representation of how lawsuits end and what they cost: For Every 10,000 Lawsuits, Few Losses, but High Cost. There is also a Pink Slip Protocol which has helpful tips on firing, but of course, just like this blog, it "is not intended, nor should it be considered, legal advice."
Posted
10:19 AM
by Michael Fox
Not often that employment issues get space on the New York Times editorial page, but last week it weighed in on the battle between business and the gun lobby over employers' rights to ban guns from the workplace that is being fought in legislatures across the country.
I am not a hunter, nor a student of the 2nd amendment, but I do know a bit about workplaces, and let me tell you this is an important issue for employers and its crazy to think employers shouldn't have the right to ban handguns. The NYT agrees, Workers’ Safety and the Gun Lobby.
If safety is the issue, which of course it is, the NYT points to this:
The debate is happening just up the street from me as the Texas legislature is in session and has several bills before it. One bill, HB 220, has already passed out of committee. It would prohibit employers from banning guns in parking lots unless two conditions are met: (1) the parking lot, garage, or other area is completely surrounded by a gate and is not open to the public; and (2) ingress to and egress from the parking lot, garage, or other area are monitored by security personnel.
These kinds of exceptions, which are not practicable, are cover for legislators who can use the "exception" to show that they were "reasonable." Garbage.
I write this (mostly) in jest, but there are important issues that could plague an employer because of these bills. The NYT article mentions liability, and hand in hand with this consideration, insurance premiums could conceivably rise because of the possibility of gun-related injuries. Many small businesses already battle to keep premiums low for their employees. For example, one small KS company recently installed a gym on its premises and created a health awareness committee to lower employee premiums. I cannot imagine that their health insurance provider would dance for joy upon learning of a similar bill in KS. In addition, as you stated, the “convoluted scheme” required by the bill will just add another paperwork requirement for employers and make their job that much more confusing.
These bills do not leave a practicable way out for employers. While an employer could perhaps construct a gate around its parking lot without incurring undue expense, many businesses would be precluded from doing so for at least two reasons: 1) a city law probably disallows this in some areas, and 2) it would be aesthetically damaging and thereby decrease business. As for the second prong of the exception, most businesses simply cannot afford to hire security for this purpose. And these expenses would be imposed merely because employees choose not to leave their firearms at home when going to work…
Being a KS resident, I doubt that the TX legislature would care much about my opinion in the matter. However, concealed carry of firearms has just recently been passed in KS, so perhaps, in a couple of years, I will have my chance to write that letter.
Posted
7:56 PM
by Michael Fox
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