“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.

Health Care Reform -- Affordable?

I am speaking to the HR Association of the Central Coast tomorrow -- all about the Affordable Care Act. The only problem is, I am not sure it will really be affordable for employees or employers. But I do suspect the insurance companies will continue to be profitable and that the real costs of health care will not go down. How did such a pure concept get so screwed up and convoluted? Oh, wait, I know! Can you say fillibuster? Stonewall?

I imagine Teddy Kennedy is rolling in his grave.

11,000 HR Practitioners in One Hall

Did the title make you shudder? I tell you what, like when the local cops are all at one accident, I'm thinking some employees and employers got away with murder these last few days. 11,000 HR pros from the US (plus 800 from other countries) spent 4 days in San Diego learning the latest and greatest in our world. And it was great. I attended 3 workshops on the Health Care Reform regs alone. No, seriously: on purpose. And there must have been 6 on Leadership, and Diversity/Inclusion, demographic trends, benefits, technology, employee engagement, and, of course, labor laws. By my rough count there were 175 different presenters over 4 days.

Keynote speakers included Steve Forbes (he has faith that all will be well with the economy, and, oh yeah, a flat tax would help), Al Gore (also has faith in America's companies ability to survive if we adopt sustainability in more than just the environment), and Marcus Buckingham, the guru of talent & strength-based hiring, who wowed the crowd describing the difference between a manager and a leader. (I know,it sounds funny -- but we were wowed, for sure.)

Every speaker was gracious in their praise of HR for keeping corporate and small biz America from imploding, so we all drank the koolaid and have come home ready to step it up a notch. Watch out employees. And employers.Your HR team is pumped!

Fired for Being Too Sexy?

Have you heard about the woman who is suing her previous employer for wrongful termination because she says they fired her for being too pretty. I've seen her picture and she's no Annette Benning or Catherine Zeta-Jone, so I admit, I may not have all the facts straight, but that's because the situation is so convoluted.

Here's what I know:
She said her managers couldn't keep their minds on their work when she was around.
They said she refused to tone down her provacative dress.
She said "What's wrong with pencil skirts and turtlenecks?" I am not showing cleavage, for crying out loud. (I added that last part)
She said (This is really her quote)"I could have worn a paperbag and it would not have mattered."

I say fire her for being so stuck up. As I said, she's no Catherine Zeta-Jones. But I digress.

There are pictures all over the internet of this woman (Debrahlee Lorenzana) in her regular (she says) business attire, which looks pretty professional to me. Except the photo of her sticking her butt out like Carol Burnett did when dressed up as that dizty secretary charachter, Mrs. Whiggins.

So: was she fired as retaliation for complaining that her bosses couldn't concentrate or for refusing to change her clothes? Is being too pretty a protected category?

At least it is a lawsuit that will be fun to follow. It will have as many layers as a good business suit.

Overheard in a Breakroom Last Week

“I cannot believe that 60% of Americans approve of the Arizona immigration law! It’s unconstitutional.”

“Yeah, well I think it’s about time: the feds aren't doing anything about it.”
“Do you want to pay $1 for an apple?”

“And what about those greedy oil company bastards who sacrificed lives and the environment for a buck?”

Flash back to September 11, 2001 and a break room in an unnamed Home Depot:
“We should send all the Arabs back to where they came from.”

“I hope they round up every ^*#! ‘raghead’ and deport them.”

I was the HR manager in that Home Depot store. Diversity in our store meant that we had one East Indian employee and a few Hispanics: the rest reflected the very Caucasian ethnic makeup of the Conejo Valley. So as employees sat transfixed in the breakroom watching the horrifying TV images that day, all sorts of ethnic slurs could be heard and I didn’t hear one complaint about the coming ethnic profiling. By that afternoon I had planted myself in the break room and as new employees came in I gave them this little talk: “We don't know who did it, keep your prejudices to yourself, let’s just send our positive energy to the rescue workers and survivors.” That tiny redirection of focus made the breakroom and store merely sad, not bigoted, for the rest of the week.

But employers can’t plant themselves in their break rooms all day. Besides, you may agree with what is being said. But guess what, it is not a business issue so it doesn't not belong at work. Nor does a replay of someone’s date the night before, or the latest Sex & the City movie. Race, religion, politics, heck even the weather can be controversial: “We need the rain!” “No, it’s hurting the grapes!”

With elections approaching I am certain other break rooms have had other fiery discussions: this issue comes up at least every four years.

To stop a conversation that is disrespectful or inappropriate in the workplace, one need only say so to the parties doing the talking. Period. Stop it.

But anyone who has raised a child knows that may not be enough. The whole culture of the household needs to support respectful talk about suitable subjects or the lesson will soon be forgotten. Managers need to be told they have the responsibility to enforce the respect rule – whether they want to join in or not. Consistently: they don't get to pick and chose which disrespectful /inappropriate talk they allow to continue and which to shut down.

A good way to defuse an emotional discussion is to step back and turn the conversation on its head: ask yourself or those having the conversation: would I feel the same way if the tables were reversed? How would you feel if California law allowed the questioning of random people to discern if they had broken some other law? If law enforcement could make employers prove they hired only people with the right to work in the United States? Oh wait – that law already exists.

Well, anyway, respect should rule, regardless of the topic.