Ban the Box

“Ban the box” is not a backlash against Home Depot and Target and stores of their bulk. It is a campaign against the question on employment applications about being convicted of a crime. A previous similar campaign made sure no question asked about arrests – remember, in America we are innocent until proven guilty. Now there are those, including Massachusetts Senator Elizabeth Warren, who want to prohibit employers from requiring job applicants disclose their credit history. I get it. It wasn’t that long ago that a bad credit history meant you were a lazy slob who didn’t care about your responsibilities and would probably sleep on the job, if not rob the boss blind. After 2008 that changed. Besides the real part of the recession, where millions of people lost their jobs, we’ve learned that (many) banks ripped us off, forcing us into bankruptcies. Can we really rely on credit checks as a barometer of one’s character anymore? But I want to point out another issue at play here, as well: a discrimination issue that the EEOC (Equal Employment Opportunity Commission) has been cracking down on, called “disparate impact.” Remember, in human resources intention does not matter. Motivation does not matter. Impact matters. Disparate impact discrimination starts out neutral: we run a credit check on all job applicants. But ends up with an “unjustified adverse impact on members of a protected class”. Per the EEOC, “minorities and women are disproportionately disadvantaged”, and therefore, the use of credit reports disproportionately affects those groups’ employment opportunities. Similarly we know that some racial minorities are disproportionately [over-] represented in our jails and prisons, so it follows that when they are released and looking for work, a criminal background check will disproportionately [negatively] impact their chance of employment. Again, disparate impact. Hence the nationwide movement to “ban the box”, either removing the question about previous criminal convictions from the job application or delaying the background check until later in the hiring process, even eliminate the use of background checks at all. As of November, 2013, over 50 cities and counties have taken the step, citing it as critical to “removing an unfair barrier to employment” to those caught up in “America’s mass incarceration”. Those behind the movement cite the need to ensure “we’re maximizing job opportunities for everyone” and educating the community about the real consequences to our society of depriving millions of Americans with past convictions of economic stability. But what about we employers who feel we have the right to know if the person we hire to run the cash register has been convicted of theft or has huge credit card debt? The EEOC says we should not bother running a check on such a low level employee. On the CFO? Of course. Otherwise we run the risk of exposure to disparate impact claims. Wow. Right now California applications can ask if the applicant has been convicted of a crime, and then tell the applicant to not disclose an arrest or detention that did not result in a conviction, any conviction for which the record has been judicially expunged, sealed, or eradicated, any misdemeanor conviction for which probation has been completed and the case has been judicially dismissed, any arrest for which a pretrial diversion program has been successfully completed in accordance with Penal Code Sections 1000.5 and 1001.5, and any convictions for marijuana-related offenses that are more than two years old. The existence of a criminal record does not constitute an automatic bar to employment. I think as long as employers use this discretion wisely we’ll be OK. Don’t hire a guy with a DUI to deliver pizzas. Unless it is 10 years ago and he has been spotless ever since and tells you how it was a watershed in his life. Talk about it! Then make up your mind. My suggestions are three: review your background check procedure to be sure it is consistent; run it by your employment law attorney; and then do whatever you can to support the reentry training programs being implemented at your local county jail for the inmates incarcerated there as a result of the prison realignment (AB 109). Because California prisons are so overcrowded, our jails are now housing non-violent offenders for a longer period of time. AB 109 has provided funding for programs to help these people prepare to reenter society with a much higher chance of success. That is great news for all of us – employers, coworkers, neighbors, and former inmates alike. To find out more about these issues contact Restorative Partners at www.restorativepartners.org ; go to www.nelp.org for the Statewide Ban the Box report by the National Employment Law Project; and www.eeoc.gov for their guidance on background checks.

Drones, Office Romance, & Snow?

Here’s your Valentine’s Day quiz: What do drones, office romance, and the recent east coast snowstorm have in common? Slippery slopes, my friends, they all create slippery slopes.

These days we include relationship policies in our Employee Handbooks because the dating policies of old haven’t kept up with the challenges presented by personal relationships in the workplace. Besides, according to my granddaughter, “nobody dates anymore, they just hang out”. OK then.

The line between personal and business issues is fast fading as the younger generations come into the workforce. A recent industry white paper tried to explain to me that the Nexters can’t even conceive of what we Boomers call “the work-life balance” because they see no boundaries delineating what needs to be balanced. Hence the blank stare when we tell some first-time employees that, no, they can’t keep up their Facebook page while they’re on the clock. Or shop, or text their friends, or fight with their girlfriend who works in the next cubicle. We managers are going to have to figure out a way to supervise our hourly employees without policing them every minute.

At a place I used to work there were two employees who had lived together for 7 years. I didn’t know. We sat in meetings together and I never guessed. Even after I knew and I tried to see signs of personal stuff coming in, I couldn’t. Did they govern their actions in order to comply with the dating policy that was in force at the time? I wish I’d asked them. My sense was they just knew that the personal belonged at home, not at the office.

I wouldn’t mind asking San Luis Obispo, CA county supervisor Gibson and his assistant if their seemingly scrupulous behavior was dictated by some policy or their knowledge that once found out their every action would fall under rabid scrutiny from all corners. According to county counsel, they violated no policy or regulation.

And there’s the rub. In the workplace they are blameless because they broke no rules. In their personal lives it is another question, but that’s none of our business. Now add the public eye, which, thanks to Mr. Gibson’s elected office, makes his actions fodder for feedback and opinions swarm.

Somewhere along the line, the appearance of wrong doing must be considered. That’s often why we have policies restricting moonlighting and acceptance of gifts and supervising your sweetheart: because even if you didn’t do anything wrong, the company can be weakened in myriad ways by the appearance that you did.

But, oh, talk about a slippery slope: do we make rules that potentially limit our pool of creative talent because someone might do something that might appear to be harmful? Do we restrict workplace relationships and dictate work-life balance in order to control appearances? This Valentine’s Day column is dedicated to Supervisor Gibson and his assistant, with thanks for providing us yet another reminder that the field of human resources is about a lot more than policies.

{This post marks a return to the wonderful world of blogging for Betsey. Comments are always welcome.}

There's No Crying in HR!

With Open Enrollment just around the corner I guess I shouldn’t have been surprised, but, still, to see an article about crying in the workplace in the October edition of HR Magazine; I was taken aback. Besides, during Open Enrollment I don’t think most employees cry, just the HR staff. And CFOs.

Last year was a real challenge, with the Health Care Affordability Act regulations going into effect. Systems and procedures that had become second nature were gone and new ones had to be mastered in time to explain the changes to our employees. This year should be a piece of cake, compared to last year. (She said with fingers crossed.)

But back to the crying. I remember thinking when I saw him cry for the first time, that when John Boehner cries in Congress we actually give him points for sensitivity. We say “Aww, isn’t that sweet”. But if Nancy Pelosi had shed a tear we’d have considered her weak or manipulative. It is an age-old double standard. I have had to fire a lot of people in my 25 year career, been sworn at, but no man has ever shed a tear, so I was interested in what this article said about men and women crying in the workplace.

According to the author of It’s Always Personal: Emotion in the New Workplace, there is more crying at work than there used to be because “there’s no longer a separation between work life and home life.” That surprised me: I expected it might be attributed to behavior modeling by more sensitive men, or job losses and wage freezes and other financial uncertainties, but apparently, it is primarily due to the fact that “we’re always on call.” (Exempt employees, that is. Hourlies had better not be working 24/7.) This produces a constant level of anxiety and can lead to “emotional leakage.”

The book, written by Anne Kreamer, a former Nickelodeon Executive VP, noted that forty-one percent of women admitted to crying at work in the last year. Think about that: nearly half the women in the workforce cried at work. The men? Nine percent. She said that’s normal: on average women cry about four times as much as men.

But it’s not that women are weak! Our tear ducts are smaller, so they spill more quickly than men’s. Really. And when under stress, we women produce a tear-triggering hormone. Stressed men produce testosterone. I’m just sayin’.

So what’s a manager supposed to do when his or her employees cry at work? “Offer tissues and give them a moment to collect themselves”. For men, the tears are probably about something happening outside of work anyway. The women cry mostly when they feel frustrated, undervalued or unappreciated. And managers, you can have an impact on that.

As for John Boehner-types? Weeping men are viewed (by both sexes) as empathetic and compassionate. Men who saw women crying at work were not too harsh, but other women viewed it as a personal or moral failure.

Come on, women, lighten up. It’s about the tear ducts.

HAPPIEST PLACE TO WORK?

OK, so we know that San Luis Obispo, CA is the happiest place to live in the US. But is it the happiest place to work? We have talked about why people work and how to retain your employees, but are they happy? I posed the question to 20 people, chosen randomly, who work at 15 different companies.

Most said they were happy, and most had the same reason: “I am happy to have a job at all.” But when I dialed down a bit deeper, like Maslow, eliminating the basic survival issues, the reasons they were happy varied.
Benefits were the top choice. Health insurance has been tied to our employment for so long now that it is expected to be part of the compensation plan for any company of a certain size. But that does not mean it is taken for granted. Most employees are well aware of the annual double-digit rise in premiums over the last several years, so they appreciate those employers who have chosen to retain the insurance. Many employers have eliminated their contribution toward the premium for dependents, but not one person I interviewed complained about that.

Cable TV provider, Comcast, was cited as one of the happiest places to work in a recent survey conducted by CareerBliss. No surprise to me: the employees get free cable! That’s at least $150 a month right there, plus they don’t have to review all those ads to see if the HD receiver costs extra. Comcast employees also get free financial planning services, tuition reimbursement, commuter benefits, legal benefits, adoption benefits, long-term care insurance and pet insurance. Pet insurance!

My survey respondents cited work-life balance as the next element of work that determined their level of happiness. They called it different things, depending on their age, but for the most part, it was about the employer offering them the flexibility they need to drop their kids off at pre-school before work, not hassling them if they need to leave early or come in late on occasion, not requiring a ton of overtime. To the ears of a Baby-Boomer, that might sound like anarchy, but I get it. Some of our workers have kids and parents who need their attention. The trick for an HR pro or business owner is to find a way to make it flexible and fair.

Other workplace elements that contribute to an employee’s happiness in my survey include being allowed to listen to music, good parking, long lunch hours, monthly pot lucks, having supervisors who treat them with respect,(hello!) lack of drama, and being challenged with assignments that let them learn new things.

For the national survey, next most important element was career advancement, a regular in the top 5 for decades. But I was surprised it was still there, expecting it to have been replaced with “I am happy to have a job at all.”

Hire Vets

The national HR organization, SHRM, has mounted a campaign urging employers to hire veterans. Many years ago, the state of CA added Vietnam Vets to the list of protected classes, and now is this tantamount to (whisper it) affirmative action? While HRM for the Home Depot in the late 90's I was part of the team that introduced special hiring consideration for veterans and military school graduates: they were immediately considered for Asst Manager positions, even if they had no retail experience. Such was the regard held for the leadership training they received in the military.

So, yes, it amounts to reverse discrimination. Have our military personnel become so revered that they deserve special consideration or is this another assumption about the leadership skills they aquire from active duty? Are we still bending over backwards to make up for the negative treatment they received when they returned from Vietnam? Or do we just feel sorry for them because they had to put their lives on hold for tour after tour after tour in an unfunded, unjustified war in a godforskaen part of the world?

It's That Time of the Month, Decade, Century.

It's about time. Contraception meds are now covered under preventive care. Obamacare now covers women who need contraceptive counseling, STD tests, breast feeding support, and well woman tests. Good news.

Everytime I see a Viagra commercial I wonder why 2 people are sitting in bathtubs in the wilderness while women have had to jump through hoops to deal with the consequences.

And yes, some of the cost will fall on business and I hate that. But what's good for the goose should have long ago been made good for the gander.

Why They Work

The Home Depot in the 90’s was growing fast: sometimes we had to, uh, compromise, our standards a bit and promote someone whose leadership skills were not fully developed. “Rick” was an exception. One of the reasons he was promoted so quickly was because the employees loved him and would do anything for him. I asked him what his secret was and he said, “I remember every employee’s name and something about them and I use both when I see them in the store.” When he became District Manager he carried a small pad to keep notes to use for his next store visit. He would sit in his car and review them before walking in the door.

Your employees show up at work for many reasons and management recognition is always at or near the top of the list.

Stop a minute and think about how well you are meeting your employees’ need for recognition. Your turnover rate, the number of workplace accidents, and absenteeism are all good indicators, but you can also just hang out in the break room and pick up the vibe. The good news is that meeting this need does not have to be at the expense of your business – in fact, your company’s success may depend on your ability to make your employees feel appreciated.

Sincere words of thanks and giving credit where credit’s due are a good place to start. It really is not all about the pay, but a recent poll of HR professionals (1) revealed that they do not think their companies are doing a good job of recognizing their high-performing employees.

One of the insights from the poll was that we employers are discovering the importance of employee recognition and job satisfaction in the exit interview. A little late, isn’t it? Local authors Beverly Kaye and Sharon Jordan Evans, authors of “Love ‘Em or Lose ‘Em,” (2) suggest asking employees why they stay before they go. Great book.

11 percent of companies monitor employee comments on social media platforms to see how they feel about their work. Pause here for a prayer that they know what not to do with the information. “Before I promote Joan I’d better check her Facebook page to make sure she isn’t still dating that loser, Bill.”

What’s your recognition style? Are you a devotee of the Oreo Feedback approach: Sandwiching a negative feedback statement between two positives? This is the most common feedback technique and by now, every employee sees it coming. “Hi Jessie, your report was delivered right on time. Thank you for that. Why didn’t you use the format I gave you? Thanks, though, for getting it in on time.” Is there an employee anywhere who doesn’t hold their breath until the supervisor has finished the praise, thinking, “Oh boy, here it comes”?

Remeber: Oreos are for eating. Sit in your car if you have to, but make sure you are recognizing your employees for their good work every day. It’s why they work for you.

(1) 2011 SHRM/Globoforce Employee Recognition Survey report released June 23, 2011. 745 HR professionals from all sectors. Half respondents have 2,500+ employees; 43 percent have multinational operations.
(2) Love ‘Em or Lose ‘Em: Getting Good People to Stay. 2005. Berrett-Koehler Publishers, Inc. San Francisco. ISBN 978-1-57675-327-9

Don’t Vent On Me

Venting is like throwing up. I wasn’t the cook. Hell, I wasn’t even in the dang kitchen. So why are you throwing up all over me? You don’t even want me to clean it up, do you? No – you just want me to stand there and take it. And when you’re done, you feel so much better, don’t you? I know. What a relief. Whew! But what about me? I am standing there with barf all over me. I have to get this stinking stuff off me and go on about my business. I can’t help but want to help you wash your face or offer you a breath mint – I am in HR, for crying out loud – part of our job is cleaning up messes.

But I prefer a productive, mess, please. One where you discuss your upset stomach when you first feel queasy. Tell me what you think is causing it. Let’s discuss some intervention or remediation or some kind of solution so that you can feel better. I might ask you to adjust your recipe so that it doesn’t happen again. You’re the cook, remember?

Oh, maybe there were other cooks involved. Good point. I guess if they aren’t sick to their stomachs they may not know the food makes you sick. I really do expect you to tell them before you retch in my direction. Seriously. Don’t you want to fix it before you toss your cookies?

I don’t think so! That’s the problem. I think somebody decided that venting is OK and we in HR – or your best friends – just have to stand there and take it and then wish you well as you walk away.

When was it decided that venting was OK? About the same time we decided that “bye-bye” was an acceptable way to end a business call? When women started sexually harassing the men in the office? Oh, yeah, that was a great step forward for women’s quest for a corner office, wasn’t it? But I digress.

You chose to vent on me because I am a good listener, right? Not because I can necessarily do anything about your situation. If you wanted something done, you’d probably have talked to someone involved, or with authority in that area. And you would have gone to them with a solution in mind. But you chose me. Or a coworker who has even less power to fix it than I do. And God forbid they (or I) should offer you feedback.” No, Betsey, this is not a time for suggestions – I am just venting.” Translation: “No, Betsey, I want to throw up all over you.”

Well: I AM HEREBY DECLARING MY INDEPENDENCE FROM VENTING!

Feel free to join me. I want to start a revolution and am looking for recruits. Here is the first step: If someone comes up to you and looks sick to their stomach, don’t just stand there -- send them to the bathroom!

And wave our flag: DON’T VENT ON ME!

Thanks for listening -- I feel better.

STUPID IS NOT A PROTECTED CLASS

‘Tis the season for Sexual Harassment Prevention Training for supervisors. The state as mandated training for supervisors in companies with at least 50 employees since 2007. You can suffer through the two hours on-line or with me. And, God help me, I love teaching this class. I never know what to expect, even after conferring with the HR manager to identify what current issues I should weave into my presentation.

For a company a few years ago, the issue was calling people by their right name. Really? Are people being referred to as “honey” anywhere but in a diner these days? Side note: at the NCAA regional playoffs in the south a few years ago, my brother said he was having the time of his life. “What’s not to like?” he said. “I have the 4 B’s: basketball, beer, BBQ, and the waitresses all call me ‘baby.’”

As it turns out, I was able to find a court case illustrating the dangers of not calling people by their name: two Tyson Foods employees were awarded a settlement for being called “boy.” Yep, they were black and the employees who kept being promoted over them were white, as was their supervisor.

I once investigated a claim where the supervisor was accused of touching an employee’s breast. When she called him on it, he said, “I didn’t touch your breast. If I had I would have done this”. And proceeded to rest his whole hand over her breast for a few seconds.

And then there was the female employee who lifted her blouse to show her coworkers her new breasts, the male supervisor walks in and says “I want to see”, and she obliges.

At a recent class the conversation was heated and focused on the employer being held hostage by conniving employees who manufacture incidences in order to make a claim of harassment. And, yes, it happens. But, really, the focus needs to be on training your co-workers to know the boundaries of professional and respectful behavior, and training your supervisors to not be stupid.

Read the cases above again and tell me: who is the most stupid? Tyson Foods – hands down it was the supervisor, even though he said he didn’t “mean anything” by it. Breast touching supervisor or the employee, who, the day before, had gone to lunch with the guy and showed him provocative photos of herself? The employee who showed off her new breasts to the male supervisor or, him, thinking that meant he could try to kiss her?

There are 13 protected classes in the state of California: race, color, religion, etc. We have to be very careful to not discriminate against employees in these classes. We have done enough harm to them over the years that fair treatment is legislated now. But you can rest assured: Stupid is not a protected class. Sometimes dangerous, but not protected. Feel free to discriminate against stupid all you want. Please.

New Sheriff in Town

All us HR types figured we see a shift to employee-supportive legislation once Arnold left, and there is much evidence to support it.

Recent events include the passage of a bill allowing Agriculture Workers to unionize without a secret ballot election.

Pending legislation (AB 325) includes a mandate that employers provide up to 4 unpaid bereavement days and the employee can sue the employer if they feel discriminated against because they requested or took the leave. The bill is in committee.

AB 877 is a Gender Non-Discrimination Act that adds transgender employees to the protected class. Sexual orientation is already protected from discrimination and this law would add gender identity. This bill has passed the Assembly and is now under review in the Senate.

We can recite my mantra in unison: If we hadn't chained women and children to sewing machines for 18 hours a day in airless, locked warehouses, we wouldn't have needed unions and these kinds of laws. Same goes for farm labor, the use of short hoes and such. In the name of profit we have been horrible to our employees for over a hunderd years and now we are paying for the sins of our fathers.

The good news is that in the last 20 years our management techniques have reflected the realization that our employees are the key to our success. If we take care of them, they take care of the customers, and help breed our success.

Now we wait for the tipping point: when the majority of employers are so good to employees that these laws are no longer needed. My experience working with the wide variety of employers I do offers me hope that this point may be seen in the next 20 years.

Deva Vu All Over Again

While attending Cal Poly in the late 60's and early 70's I took a class in Chicano Studies. It was one of my first experiences in learning about something as it was happening -- Cesar Chavez and the United Farm Workers were organizing in the San Joaquin Valley as I was studying the shameful history of farm labor. I had a classmate who grew up on a farm in Delano, so one day I joined her in picking cotton in the morning and grapes in the afternoon. That was a back breaking eye opener that has stayed with me to this day.

These memories came back yesterday as I heard about cabbage laborers threatening a sit down work stoppage in the Salinas area. I am more aware of the employer perspective than I was in 1970, but still know this is incredibly hard work for $8.00 an hour. As far as I know, short hoes (so a foreman could spot at a glance any worker standing up straight -- and therefor, not working) are gone, along with deductions for rent and food that lowered the hourly wage to pennies.

And now we have heat illness safeguards to protect the workers.

And I also know that unions can be as guilty of greed as any farmer ever was.

Is this cycle ever going to end?

THOSE SUMMERTIME BLUES

Those Cal Poly MBA students I am mentoring as they prepare to enter the wonderful world of work are telling me tales of unreturned phone calls and emails, and of their sense that the beautifully crafted cover letters and resumes they submit are entering some black hole somewhere. And these are student offering to work for free, for heaven’s sake! They just want summer internships. (On a related note, the April edition of the Reader’s Digest includes a quote from a long time HR Director, who says: “People assume someone’s reading their cover letter. I haven’t read one in 11 years.”)

Be glad you’re not a high school student trying to save up for a car or college this summer. The latest word from whoever predicts these things is that summertime work is predicted to be a record low. Only 1 in 4 teenagers will land a job in the coming months as a result of the still-poor job market. The summer employment rate among U.S. teenagers was projected at between 25-27%, a record post World War II low.

National Employee Recall Day

April 30th is National Prescription Drug Recall Day. I dont know how it works but I am guessing you take your no-longer-needed drugs to a pharmacy and they destroy them for you. They probably burn them but maybe its better if we don't know.

So what was the first thing I thought of when I saw this day announced? Yes! National Employee Recall Day, where you can take all your no-longer-needed employees to a central location and someone else takes them away for you.

Let's see -- I no longer need drugs that have expired, for illnesses from which I no longer suffer, and those that caused an allergic reaction of some kind.

I am searching for no-longer-needed employee counterparts to this list. Allergic reaction fits, although it might not have been a rash.

Any other drug like reasons to turn in your unneeded employees?

Retaliation is Now #1

If you haven’t watched The Good Wife yet, I urge you to do so. Not since LA Law have I seen such an intelligent and challenging treatment of complex societal issues. I remember a specific episode of LA Law where the argument was for or against punishing an inmate (serving life without possibility of parole) with the death penalty for killing another inmate. It might have been during that very hour that I lost forever my black and white view of the world and I don’t think I’ve used the words “always” and “never” since.

The Good Wife is just as compelling, but also on personal and relationship issues. Well written, it demands you use your intelligence to sort through the complexities of the issues being addressed.

One complex, layered issue I recall was when President Nixon denied knowing about the Watergate break-in. Which was worse, the doing it or the denying it? My Lai massacre. Enron. It is a long list, and it stretches all the way into HR.

What prompted this walk down Memory Lane was a recent US Supreme Court decision and the news that retaliation is now the number one reason employees bring charges against their employers. The good news is: race discrimination is no longer the most common claim. Seriously, think about that. That has to be good news, doesn’t it? We are making progress in tolerance of racial diversity in the workplace. Well, no, the race numbers didn’t go down so much as the retaliation numbers went up. The rest of the bad news is that retaliation is even more complicated now that the Court has determined that a retaliation claim may have merit even if the original complaint (which prompted the retaliation) is not a protected activity. Huh?

I sound like I am complaining, but from what I know of the court case it sounds like retaliation for sure. Boyfriend and girlfriend worked for the same company: three weeks after the girlfriend filed a sexual harassment compliant the boyfriend was fired. The Supreme Court determined that firing the boyfriend was designed to punish the girlfriend/claimant. So, even though the boyfriend did not have a claim himself, he could still sue for retaliation. The Court did not offer an opinion on the level of relationship that would meet their criteria: good friends? Ex-lovers? Married for 30 years? How long ago did they break up? My therapist would have a lot to say about relationship individuation issues here.

A 2010 Equal Employment Opportunity investigation was over before it started when it was clear that retaliation had taken place. That’s right – the original claim did not have to be investigated because the retaliation was so blatant it, in effect, proved the claim. The physics of discrimination.

The take-away here is that the denial or retaliation can be as bad – or worse -- than the original crime. Hence my memory of Watergate. And my brother denying he picked the flowers he sweetly gave to my mom out of Mrs. Thompson’s yard.

“God Bless Us, Everyone”

Most of us know this quote, the character who states it, and in what story. It is the exclamation that assures us all’s right with the world, after all. Greed and an old sourpuss do not prevail. The statement is uncomplicated, clear, succinct – like my sister’s philosophy of life – “Just be nice to each other.” And, I hear you sigh: “If only it were that simple”.

Ok, so it isn’t. Get over it. Life is all grey when you are in the HR business. I taught a class in Sexual Harassment Prevention for Supervisors at a Valley fruit packing house last week and the owner of the company kept saying “But they won’t listen,” and “OK, but what if this happened instead . . .?” He wanted to hear a yes or no, black or white answer to situations that never are. The best I could do was to tell him his job (and that of his supervisors) was to create an atmosphere of respect and enforce it. Model it.

My favorite of his scenario/questions was this: “What if some male employees are at lunch at a restaurant and an effeminate man walks by and they call him a ‘fag’, and one of the guys at the table is a closeted homosexual: is that harassment?” I was ready with my standard HR response: “It depends.” But before I could elaborate or say “What kind of morons are you hiring, who think it’s OK to talk like that, especially in public, for God's sake?” he said it had happened at a previous job. And the guy had claimed harassment and “got some money for it”.

I often respond to a scenario like that by telling them to turn it around: pretend the person who walked by was an elderly woman, or a beautiful woman, or a person in a wheelchair. Would the morons at lunch have said one was an “old hag”, the next a “whore”, and the last a “cripple”? Certainly not. My point was that if appropriate, respectful behavior can be learned in those instances, it can be learned for all instances. We must model and demand decent behavior if we don't want to run the risk of losing “some money for it.”

New stats have been released that remind me of all the ways we find to be mean to each other. (It’s like watching Law and Order on TV – what will some maniac come up with this week?)The EEOC (Equal Employment Opportunity Commission) has just had its three busiest years in a row. (And "that's nothin' to be proud of, Rusty").Charges in FY 2010 numbered over 99,000! I expect we'll see retaliation, race, religious, and disability discrimination top the list again this year.

Please don't dismiss these numbers by saying they are caused by new laws and/or the high unemployment rate. Yes, those things have an impact, but we let ourselves off the hook if we find solace in those excuses rather than acknowledging our duty as employers to demand that our employees be civil to each other. Besides, nobody wants to work with a bunch of Scrooges.

Blackmail, I-9 Style

Here's a new one: a former employee contacts a current employee and tells him if he doesn't support the former employee, the former employee will reveal that he (the current employee) is an illegal alien. So the current employee tells his boss about the threat -- he doesn't even know what the former employee is talking about. "Support him" in what?? But he knows a threat when he hears one.

Background: The former employee and others were laid off when business slowed, and subsequently claimed they didn't get their meal and rest breaks. Labor Commissioner found for the employer!

Question: This sounds like revenge against the employer, but is still a threat to the employee. Does the employer now have knowledge that the existing employee is not properly documented?

Undocumented Workers: Part 2

The thing is, we have used an underpaid workforce since Jamestown. But I didn’t want to get into that discussion when I addressed the increase in worker documentation audits by the Department of Homeland Security (DHS) at a recent Good Morning, SLO. I didn't want to talk about the $1 apple. I was happy to point out, however, that if one of your competitors is paying workers under the table, at less than minimum wage, then they are also not paying their share of payroll tax and probably not paying for workers comp insurance. Unfair competition, I’d say.

The Department of Homeland Security and other agencies have focused on the little guy for the past 3 years. Documentation investigations, which precede I-9 audits, have increased 8-fold since 2007. 170 business owners have been arrested in 2010 alone. Arresting the owners only started as a supplement to fines a few years ago. The first to be arrested were the owners of the fence company that built the fence between the USA and Mexico. I love it! Yes, the company that built the fence was using undocumented workers. I can just see the sign on the fence: ABC Fence Co, San Diego. And then in small print, in Spanish: If you can get over this fence we’ll give you a job. No questions asked.

So the feds are going to the source of the jobs: the broader the enforcement the better the compliance. As long as we have these laws we might as well enforce them.
It is to the file cabinet or binder of I-9s that the DHS will head if they come to your business. So the I-9 form is the place to start in making sure your workers are properly documented. The fines for failing to do so range from $110 to over $10,000 per worker, so it behooves you to learn how to do this right. By the employee’s third day.

You have the list of acceptable documents on the back of the I-9, and the instructions tell you whether to place the information in List A, B or C on the form. You don't have to be a forgery expert, but you do have to review the originals and you when you sign the form you are attesting that they appear genuine to you.

Few employees carry their social security card or other documents with them, so I recommend telling the applicant when they are hired, what to bring with them on their first day: Whatever info you need to complete the W-4, and the I-9. Give them the list of acceptable docs: you may not tell them to bring their social security card and driver’s license or any other specific document. If you want the social security number for the W-4, that’s fine. And the driver’s license and proof of insurance for driving on company business, also fine. But don’t confuse these requirements with the I-9.

You could be guilty of discrimination: just ask Catholic Healthcare West. Seems they had a habit of asking for more documentation from only the more swarthy looking applicants.

Illegal Workers: Feds are Targeting Smaller Businesses

I had the pleasure of speaking at Good Morning, SLO a few weeks ago. It’s the monthly gathering of 200 or so business owners, managers, and non-profit leaders, mostly members of the San Luis Obispo Chamber of Commerce. I get to speak often to the group, although usually only for a minute or two and to introduce someone or an upcoming event. I usually get a laugh or two and that’s fun for me. But I have to be careful: I once helped introduce an upcoming performance of the very moving Teen Mommalogues and found myself explaining what “Mommalogues” meant by saying it was “the talk my mom never had with me.” I had to bite my tongue to stop there. OK, I admit – I didn't stop there. That’s what I mean about being careful.

When the Chamber first asked me to present the topic of immigration I balked: not a politician, don't want to get embroiled in a no-win debate, etc. Sure, there’s an HR element, but it would be a lot to cover in 5 minutes. And not sure I would get a laugh.

Would I try? Sure: heck, as my friend Marci says, I never met a microphone I didn't like.

The reason I thought the topic was justified? The Department of Homeland Security (DHS) (formerly the INS) has changed its approach to enforcing the laws around documented workers. They used to take years to investigate a big business, often by tracking the labor contractor, then they raided it, fined the owners, and deported hundreds of undocumented employees. Now the DHS is focusing on smaller businesses, expecting a smaller “take”, but figuring to make it up in volume. They are less concerned now with sending the undocumented workers home than they are with shutting down the source: businesses who employ them.

We are seeing a similar shift to volume in other agencies: OSHA and the Equal Employment Opportunity Commission (EEOC) have hired hundreds of investigators, as has the DHS, and they are now pursuing smaller fines. I heard a report that the EEOC levied a fine as low as $20,000 against a business for discrimination. I was shocked. In the past, the EEOC would not bother with any case that did not promise a fine over $100,000.

So even if your business is not AG or hospitality, be sure your documentation is in order. It all starts with the I-9, the form that documents the 1) identity, and 2), right to work in the United States for every one of your employees. Everyone. By the 3rd day of work. Or you have to let them go.

The list of acceptable documents is on the back of the form, and the directions on how to fill it out are pretty clear, but I come across errors by my consulting clients every day. And even the simplest error can cost you: from $110 - $1100 fine for incomplete or inaccurate paperwork. $10,000 for knowing hiring an undocumented worker. As we used to say at Home Depot: Read the directions.

Why We Have Employment Laws

If we want to understand why this country has so many draconian safety regulations we need only wait for the next fire on a drilling platform and learn about the alarms turned off so that the crews could sleep. Or we can wait until there is a cave-in at a mine & hear about the hundreds of short-cuts taken and violations for which the mine was cited over the years.

It is not always that clear in employment law – I have said before that if it weren’t for the industrial revolution we wouldn’t have as many laws. But employers chained women and children to sewing machines and they worked 18 hour shifts in locked, airless rooms. For a pittance.

If this country had a history of treating its employees well, then maybe by now employees could decide if they need a break every 2 hours; and maybe it would be left to the employer and the employee to decide what schedule worked best for them both.

So if our current regulations are a response to the past, I wonder what will be the legacy of the current employment relationship.

The USDA Needs a New HR Director

“It only took me 20 seconds to do it,” she said. “Call this 800 number to block telemarketers from calling your cell phone for 5 years.” This sounds familiar, I was thinking, when my step-daughter replied she’d just called the number and got some kind of Reward Center with “money saving offers.” Then my son-in-law emailed saying he thought there was no such database. My friend said she assumed it was valid because she got the email about it from her company’s IT department.

A quick check of the facts at an urban legends website (snopes.com): yep, it’s bogus. There is no national database for do not call, and, yes, it was familiar. This ruse has been around since 2004.

I remembered my friend’s assumption when reading about USDA employee Shirley Sherrod being forced to resign under a maelstrom of criticism as a racist. After the outrage, after the media flogging, after she resigned, someone finally stopped long enough to check the facts and learned she was the victim of a twisting of facts and truth – on purpose – designed to embarrass the NAACP. We know by now we cannot always believe what we see on the internet, but we trust the news media to check their facts. Right?

Apparently not. You see, the edited video where Sherrod appeared to be confessing her racism fit neatly into the belief system of Fox News and many of the people who heard about it.

Besides the news agency neglecting their duty, what was her employer thinking when they forced her out before they had all the facts? Even the greenest human resources professional knows to check the facts and the motivation behind charges against an employee. Where were the skeptics: like the ones who fill my Respect in the Workplace classes, looking for a hidden motive behind every claim of sexual harassment? “She wants to get back at him for breaking up with her.” “She’s mad because she didn’t get the promotion,” etc, ad nauseum. Talk of an ulterior motive can be wishful thinking by employers in denial, sometimes it is an impulsive leap to the defense of a colleague, and often it is pure retaliation: an attempt to deflect the heat from the accused.

But, like a stopped clock, sometimes these claims of ulterior motive are right.

I hate ulterior motives. It takes too much energy to watch out for them and too much work to figure them out. The world I want to live in is one of respectful, honest communication and collaboration among coworkers who always act in a friendly, professional manner. But until we create that world, it is HR’s job to consider every angle, motive, and assumption when investigating an incident or claim against an employee (or the employer). Regardless of the boss’s belief system or theirs, it is HR’s (and the news media’s) job to advocate for the truth. Period.

I’m thinking the USDA is looking for a new HR exec about now. And Fox needs a fact-checker who hasn’t drunk the Kool-Aid.