There are a lot of good HR-related Blogs out there many of which I read on a daily basis. The HR Capitalist has undertaken an ambitious project to rank these resources. For readers seeking a compilation of HR Blogs, this is an excellent site for one stop shopping. Incidentally, Kris Dunn's HR Capitalist Blog is one of the best.
Remember the old adage that "No good deed goes unpunished?" I think it applies to voluntarily using the various electronic verification systems available in E-Verify and SSNVS. Although there are electronic resources to assist employers in complying with the I-9 verification requirements, I don't think employers should jump to use them until they are forced to which is clearly on the horizon. Federal Contractors will be forced to use the E-Verify system under administration proposals.
My reasons for taking a "wait and see" approach are as follows:
The Pittsburgh Post-Gazette is featuring an article entitled Religion at work: A growing number of discrimination cases center on employees' beliefs noting that a post 9/11 world has increased the number of religious harassment and discrimination claims. Religious accommodations can be difficult for employers to handle because they may pit one group against another.
Both Title VII of the Civil Rights Act and The Pennsylvania Human Relations Act prohibit religious discrimination and harassment. The EEOC has issued Guidance on Religious Discrimination obligations of employers including the following:
There is also specific EEOC Guidance on Workplace rights of Muslims, Arabs, South Asians, and Sikhs.
Protections from discrimination based upon religion can pose a challenge for employers for the following reasons:
Defining "Religion"
The law protects any "religious practice or belief" which is defined to include any "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views". Advocacy sites exist for many nontraditional Religions. Don't dismiss an employee's request simply because they involve views that aren't main stream religions.
Accommodating Religious Practices
An employer must consider reasonable accommodations that do not pose an undue hardship. The employer can evaluate different alternatives to accommodations and may reject any that has more than a de minimis cost. However, providing voluntary swaps for scheduling accommodations is required even if it results in administrative costs. Claims by coworkers might be "upset" or "uncomfortable" when they see the religious expression (like a turban) is not an undue hardship. The key to an employers approach to an accommodation request is to evaluate its impact and not to dismiss it out of hand.
Balancing Competing Workplace Religious Practices
Employers struggle when forced to balance workplace exercises of religion that conflict with each other. For example, pro-life verses pro-choice or Anti-Gay religious practices have factionalized workplaces over religious accommodation. In addition, employers can become involved in disagreements stemming from workplace proselytizing. Employers must carefully balance workplace religious expressions and refrain from treating them differently than other speech.
After the original publication, I came across a very expansive summary of religous accommodation situatations perpared by Vadim Liberman in his article "What happens when an employee's freedom of religion crosses paths with the company's intereest?"
Rush on Business has a good post on "Copy Another Company's Handbook at Your Peril" that summarizes several postings on the downside of adopting employment policies when you don't fully appreciate their applicability to your business. We all like to save time and money by not reinventing the wheel; however, the risks of these shortcuts are amply demonstrated in the case law.
Employers who adopt or copy policies may find themselves covered by laws and regulations that wouldn't otherwise require their compliance. One example cited in a post by Eric Swenson at Managing People in the 21st Century involves a case in which an employer included an FMLA provision into its handbook without appreciating the fact that the company didn’t meet the statutory threshold for coverage at a particular facility. A federal court held that an employer can be bound by "misrepresentations" in its employee handbook that lead workers to believe they are eligible for FMLA benefits - if an employee reasonably relies on the misrepresentation and is harmed as a result. Michael Fox at Jottings from an Employer's Lawyer follows similar case results in which an employer with less than 20 employees became covered by COBRA because of an employee handbook statement.
The other area of risk involves an employer's misunderstanding of the copied policy or its failure to follow the policy at all because its not part of their normal business practice. In both situations, employers can be held liable for their employment policies or statements about what the policy means even with a strong handbook disclaimer. Pennsylvania courts almost never give contractual status to employee handbooks, if a disclaimer is present. However, a handful of cases have held a company liable when it violates its handbook provisions.
A balance can certainly be struck between a form handbook and one made from scratch. When working with businesses on developing or reviewing an employee handbook, it is important that the lawyer understand the company's business in terms or its size, locations, and activities. Of course there are certain generic policies, but most policies on benefits, operational procedures, and work rules must be customized. Many employment lawyers can provide you with a checklist of the types of policies that businesses should consider adopting and even some sample language. However, there is no substitute for individualized policies and a legal review of the policy manual. Many businesses also find audits of their existing practices to be helpful in terms of legal compliance and best practices.Personality tests have always held a certain amount of fascination for me. I vacillate between thinking they have the same credibility as horoscopes and really believing they have some keen insights. I have blogged on personality assessments previously so I won't repeat the legal issue.
Kris Dunn, at the hr capitalist has a great post on Hiring Jason Bourne via the Myers-Briggs Assessment. Kris concludes that Jason Bourne is an ISTP. I was wondering if this classification appropriately places him in his current occupation (CIA hit man). Furthermore, how would he fit in your organization?
Career and Personality Tests On-Line lists the following traits for many ISTPs in an organization:
[A] good job includes being rewarded for paying attention to what is logical, allows for hands-on experiences, and gives them freedom to do the work as they see fit. They often enjoy work that is project oriented and task focused, particularly if it involves immediate problem solving. Independence and autonomy are likewise important for ISTPs at work. Action is usually more important and interesting to them than long discussions. ISTPs often lead by example, and expect each person to contribute to the group effort. They can be quite expedient, finding the best solution for the moment. They usually dislike both giving and receiving close supervision. Many ISTPs can keep track of all kinds of detailed information and can become the source of "institutional knowledge" for an organization.
Some areas where ISTPs can have difficulties include taking shortcuts to get things done and skipping important steps. They might miss sharing information with others, who then assume the ISTP is uninvolved, unconcerned, and lacks interest. Sometimes, in their hurry to get things done, they can jump to a new task before the previous one is finished. Perseverance can be a problem. Likewise, goal setting can be difficult. The focus on the immediate can make it hard to look at the long term and plan accordingly, or even create a plan in the first place.
Based on this summary, I'm thinking Jason Bourne, Vice-President of Human Resource. The Personality Page has a Geocities page that list the following occupations for an ISTP:
Police, detectives, forensic pathologists, computer programmers, system analysts, computer specialists, engineers, carpenters, mechanics, pilots, drivers, athletes, entrepreneurs, firefighters, paramedics, construction workers, dental hygienists, electrical engineers, farmers, military, probation officers, steelworkers, transportation operatives, hitmen. With the ability to stay calm under pressure, they excel in any job which requires immediate action.
Right now, I am in the camp of thinking these personality test are right on the mark. But wait, how can hit men and dental hygienists both be ISTPs? Now, I am vacillating again. Jason Bourne, Dental Hygienist? That's why I'm not the Hollywood director.
The so called safe harbor from prosecution/sanction for immigration law violations arising from an employer’s handling of No-Match letter places a heightened burden on employers and may only exacerbate an already growing worker shortage. It is a poor effort to solve the problems created by a lack of consensus on a national immigration policy. It has collateral effect of heightening employer’s liability for immigration-related discrimination and employee relations problems.
Many Commentators believe that No-Match letters are not an effective mechanism for ferreting out illegal immigration, so granting a safe harbor to employers for playing along is meaningless. Some of the facts that lead me to this observation are as follows:
My conclusion is that employers will be whipsawed by worker shortages, immigration sanctions for hiring illegal workers, discrimination claims by fired workers who lack documentation and employee relations issues including unionization.
I received several questions about my contrast of the No-Match safe harbor and a perfect storm. I borrowed the “perfect storm” allusion from my friend Ira Wolfe who has written a book entitled The Perfect Labor Storm which highlights the impact of demographic trends on national employment.
The Department of Homeland Security (DHS) issued new regulations that create a "safe-harbor" for employers who either receive a (i) no-match letter from the Social Security Administration or (ii) written notice from DHS questioning an I-9 Form. Employers who follow the protocol and timeline set forth in the regulations will not be charged with "constructive knowledge of employment of an unauthorized worker"; hence, being shielded from civil and criminal sanctions in a subsequent DHS audit. However, when one examines the safe-harbor, it clearly puts the employer in a position of terminating employees who cannot meet government requirements and time frames thereby facing discrimination claims and employee backlash.
The safe-harbor protocol requires that the employer complete the following steps within the prescribed time frames:
Completing a new Form I-9 without reliance on the old disputed documents or social security numbers, will be difficult if not impossible. Furthermore, reliance on the government's voluntary E-verify system provides no safe harbor for I-9 compliance. If the employee is unable under such circumstances to provide satisfactory documentation, the I-9 instructions state that "employment should be discontinued." In the case the employee provided false information but somehow manage to comply with the Form I-9 requirements the second time, the same instruction suggest an employer follow its policy on employees who provide false information.
In either case, an employer is prohibited from discriminating against applicants or employees based on their national origin. Employers must also manage the perception among employees that this bureaucratic approach to national immigration policy isn't the employer's doing. The new regulations create a "safe-harbor" from DHS prosecution and an employee relations perfect storm.An Associated Press article by Lindsey Tanner reports that McDonald's wrapper tricks kids' taste buds:
Anything made by McDonald's tastes better, preschoolers said in a study that powerfully demonstrates how advertising can trick the taste buds of young children.
Even carrots, milk and apple juice tasted better to the kids if it was wrapped in the familiar packaging of the Golden Arches.
The study had youngsters sample identical McDonald's foods in name-brand or unmarked wrappers. The unmarked foods always lost the taste test.
This doesn’t surprise me or others one bit. The Evil Hr Lady take is that the wrapper perception created by titles pervades corporate decision-making. The result is that good ideas in the wrong wrappers don't get their just due. I took a different direction. When I saw the same article, I thought of appearance bias.
We are about due for another round of surveys or articles about how good looking people get better jobs, raises, and service for no other reason then they are attractive. Some older articles make this point like CNBC's Hidden Camera investigation entitled "Face Value", Catherine Kaputa's Why Attractive People Get Paid More and What You Can Do About It, or Kate Lorenz's Do Pretty People Earn More?
To use a cliché, perceptions are reality. The concept of evaluating people and their ideas on their merits is intellectually unassailable. However, if it were universally practiced, society wouldn't need laws against discrimination and job bias. Discrimination is, at least partially, a bias based on the wrapper, rather than the content. Certainly, "unattractive" is not a protected class. However, unattractive can be a code word for appearance prejudices that are legally prohibited such as those based on race, sex, national origin, age, and disability.
No where is the difference between the wrapper and its contents more important than in the defense of a discrimination claim. TheMcDonnell Douglas Test uses a three step legal standard for evaluating such claims. In the first step, the employee/applicant must show they are in a protected class, are qualified for a job and suffered some adverse employment action. In the second step, the employer must that it had a legitimate business reason for its decision. In the third step, the employee may show that the employer's "reason" is a pretext for discrimination.
Don't let the McDonald's/kid's eating habits analogy trivialize my point, employment decisions must be based on content and qualifications. When evaluation of the content involves subjective assessments make sure that decisions aren't influenced by stereotypes or biases resulting from perceptions. Interviewers should be trained to appreciate the legal importance of job content in their evaluations of candidates. Everyone should assess the role of their own hidden biases and their impact on workplace decisions.
Anyone who has ever driven by a business when its unionized employees are on strike has undoubtedly observed the "picket line". The image or workers carrying placards with anti-company slogans walking back and forth in front of a gate at their workplace is associated with every labor dispute. But what is the purpose of the picket line? Is it antiquated or effective?
One of the simplest summaries of "picket line" appears on Howstuffworks which states that "[t]he purpose of picketing is to draw public attention (and sympathy) to their cause, inform the public of the goals and the reasons behind the strike and discourage anyone from violating the strike order and going to work. Anyone who does this literally has to cross the picket lines, and they usually are called scabs." As you might expect, the National Labor Relations Board (NLRB) has a slightly more complex approach to picketing which can occur in many reasons other than a strike.
Picketing has strong symbolism. Political candidates line up, literally, to garner union support by marching in picket lines. The picket line establishes a boundary between the business and the outside world. It attracts attention (better than a giant inflatable rat). It disseminates information (sometimes).
There is little or no empirical evidence that I could find on the effectiveness of picketing as an economic weapon. Anecdotally, picketing is intimidating to customers and employee's who may be inclined to cross the picket line. It generates media attention which may cast the company in an unfavorable light. The picket line is disruptive to business when sympathy strikers won’t cross the picket line to enter the business. It is a boon to lawyers, security companies and videographers who monitor the picket line shenanigans.
Unions obviously think picketing is important for reasons other than giving there members something to do to earn their strike benefits. As observed by the hr capitalist, unions may even be willing to pay others to walk the picket line. A typical day on the picket line is featured in an article entitled Garment strikers sticking together by Spencer Soper. In many ways, a picket line seems like a team building exercise gone bad.Telecommuting (a.k.a. working at home) has been buffeted about in a whole host of recent surveys which are nicely summarized in a SHRM article by Kathy Gurchiek entitled Upper Management Distrusts Telecommuting but Cites Benefits. There is a mixed perception of the work at home world the travails of which are discussed at the Telecommuting Journal, a blog dedicated to the subject. Many employers believe that that there is no substitute for face to face communication. It may come down to "trust" with telecommuting still viewed as a "perk" that may hold back a career.
Despite these management perspectives, an employer's reluctance to allow telecommuting may be trumped by the American's with Disabilities Act's provisions on reasonable accommodation. The EEOC has published guidance stating that "allowing someone with a disability to work at home may be a form of reasonable accommodation." The EEOC's Fact Sheet explains issues ranging from whether a particular job can be performed at home to the frequency with which work at home must be offered.
Courts reviewing employee claims for a work at home accommodation focus on many things to determine the feasibility including the following:
Employers should not summarily deny a work at home disability request. They must engage in an "interactive process" with the employee to assess the reasonableness of the requested accommodation.
Electronic discovery promises to be a real brier patch for employers. It has already sprouted several blawgs dedicated to e-discovery topics. There are some good resources on eDiscovery Source, Electronic Discovery Law, and Sound Evidence: E-Discovery Simplified.
I have traded a series of posts and comments with fellow lawyer and blogger Rush Nigut at Rush on Business. We have both exposed the merits of a thoughtfully developed record retention policy. We have begun to explore the "what ifs" in the context of business litigation.
Employment discrimination cases will undoubtedly have a component of electronic discovery in terms of e-mails between the "key players". When an employer has a threatened claim, it has an obligation to preserve electronic and other evidence even before a lawsuit is filed. Intentional or inadvertent destruction of this evidence can result in sanctions such as loss of the case, monetary sanctions or an adverse inference instruction to the jury. These sanctions can occur even if records were destroyed pursuant to a valid record retention policy.
For example, a recent court decision involving a common factual scenario highlights the issues involving record retention and destruction. In Floeter v. City of Orlando, a female employee filed an internal complaint of sexual harassment including allegations of pornographic e-mails. She later filed a lawsuit in which the pornographic e-mails were subpoenaed. Because of the application of a record retention policy, the employer could not produce or unequivocally state that the e-mails did not exist. After considering a variety of sanctions, the judge ruled that the jury might receive an "adverse inference" instruction which allows the employee to argue that the e-mails existed and the employer intentionally destroyed them.
The employer's predicament was caused, in part, by its record retention policy including:
When and employer has a threatened legal claim there are several things it should not do as demonstrated by excerpts from these real cases:
There is an interesting post by Kate Lorenz at careerbuilder.com asking the question "Is Workplace Romance Really Taboo?" Ms. Lorenz observes that "society no longer frowns upon romance that blooms between co-workers." The ups and downs of office romance are even recounted in articles on Monster.com.
There is evidence that the taboos are truly gone. According to a 2007 Vault Survey, sixteen percent of employees confess to getting caught canoodling at the office. Office romance is embraced by all three branches of government (executive, legislative, and judicial). In fact the D.C. Court of Appeals in Guardsmark v. NLRB overruled an employer's no fraternization rule because it violated the rights of employees to engage in concerted activities. News outlets publish "How to Strategies". The Workplace Fairness Blog has some provocative comments in a post called "Love and Marriage at Work (and a Little Sex Too)"
While taboos may have eased, legal problems persist. David Javitch notes in his post on "Dealing with an Office Romance", there may be even bigger workplace risks for morale problems created by perceived favoritism and the looming sexual harassment claim. Courts have found employer's liable for the sexual favoritism created by a supervisor's romantic involvement with subordinates. Sexual harassment claims remain high with the EEOC reporting over 12,000 claims filed in 2006 resulting in EEOC settlements totaling almost $50 million. Million Dollar verdicts are common. Continue Reading...Some businesses are loath to write things down because of a fear that it may "come back to bite them later". In the case of an employee handbook, I think exactly the opposite is true.
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