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.