The HR Cafe

Legal compliance: Singin' the EEOC jailhouse blues

Dear HR Executive,

A knock on the door. A voice from outside: “This is the EEOC. Open up. You’re under arrest.”

Far-fetched? Nope. This is pretty much what happened recently to the owner of a Chicago health care firm.

ShoreKare LLC ignored two EEOC subpoenas and a court order demanding information about a discrimination charge. A judge then issued a civil arrest warrant, and U.S. Marshals physically hauled the owner to court.

Scare tactics
Think the EEOC wants to scare recalcitrant employers? Yep. Why else would the agency put out a press release about the defiant Chicago man?

If you get an EEOC subpoena, you needn’t obey it blindly. If you or your lawyers think it’s a fishing expedition, you can ask a federal court to narrow its scope. But you can’t close your eyes and hope it’ll go away.

Dave Clemens

Editor-in-Chief

HR Rapid Learning Center

Harassment: An issue for female managers

Dear HR Executive,

Let’s face it: When HR pros worry about sexual harassment, they’re usually more concerned with harassment against rank-and-file employees than against supervisors.

But supervisors can and do experience harassment – especially female ones.

A new study, led by University of Minnesota researcher Heather McLaughlin, found that female supervisors are actually more likely than regular female employees to suffer harassment.

In the study of 1,000 young adults, about half of females who had held supervisory roles at work reported they were harassed. By contrast, one third of frontline female employees said they’d been.

The study didn’t explain why harassment of female supervisors is so common.

An anti-power trip?

But some of the interviewees believed that men who harassed supervisors weren’t sexually attracted. Rather, the harassers were offended that women were in positions of authority and were trying to tear them down.

Obviously, it’s part of HR’s job to make sure no manager’s authority is unfairly undermined. Is anything like this happening to female managers in your organization?

Dave Clemens

Editor-in-Chief

Human Resources Rapid Learning Center

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Turning Around Employees Who Need An Attitude Adjustment." Do some people in your company need an attitude adjustment? You know what we’re talking about: people with a “punch the clock” mentality who do the minimum but still expect choice project assignments, generous raises, big bonuses and flexible work hours. If they don’t get the rewards most of us associate with stardom, they whine and complain. Please join us on Tuesday, October 13 when our speaker, Carol Hacker, will show you how great managers get employees to understand that by doing more for the company, they’re doing more for themselves. 

Faith-based blunders land companies in court

Dear HR Executive,

Religious beliefs at work present a balancing act – you can’t shut off every expression of faith, but you've also got a business to run. So where do you draw the line?

Two companies recently drew it wrong, according to the EEOC and the courts.

The Vail Corp., which runs the ski resort in Vail, CO, is paying $80,000 to settle an EEOC lawsuit on behalf of a Christian employee who said her boss barred her and another Christian from discussing their beliefs with each other. He also didn’t let them listen to Christian music for fear of offending others, but let others listen to lyrics promoting violence against women.

Best bet: Don’t stop people from having courteous discussions about religion, but be alert for folks who bend the ear of the unwilling.

The EEOC sued AT&T Southwest for refusing to let two Jehovah’s Witnesses attend a religious convention. AT&T paid $1.3 million after a federal appeals court upheld a jury verdict in the workers’ favor. The employees asked for a Friday off to travel to the convention. AT&T refused, saying it would cause the company undue hardship. The courts said any hardship was minimal.

Takeaway: The law allows you to refuse a religious accommodation that would cause undue hardship. But “undue” could be tough to prove. You might be better off granting the accommodation.

Dave Clemens
Editor
HR Café Newsletter

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Religious Accommodations: What HR Must Know to Stay Out of Court."  New EEOC data shows that religious discrimination claims have doubled in the past 15 years, and the number of settlements has tripled since 1997. That won’t surprise most HR executives for two reasons: First, we’re all seeing a broader mix of religious backgrounds as workforces diversify. Second, employees have become more litigious, and they’re well aware that the law gives them the right to certain “accommodations” based on their religious beliefs. How prepared are you to deal with tricky religious accommodation issues?  Our speaker, attorney Allison West, will show you best practices for handling a wide variety of religious accommodation requests.

Discrimination in the workplace: You can’t hide behind customers

Dear HR Executive:

Recent rulings show that companies are still trotting out the “customer made me do it” defense to discrimination in the workplace claims. And the EEOC still isn’t buying it.

In one case -- EEOC v. Jacobs Technology -- a military contractor in Aberdeen, MD, let an older worker go because, it said, customers preferred younger contacts. The EEOC said Jacobs Technology fired an employee in his late 50s, who’d been with the company for more than 15 years and had been consistently promoted. 

The company agreed to pay $60,000 to settle the EEOC’s age discrimination lawsuit on the employee’s behalf.

Employers in Massachusetts and Indiana followed similar logic and now are paying a total of $306,000 to settle EEOC lawsuits for workplace discrimination. One employer, a staffing agency, supplied only male temps when the customer requested them (EEOC v. Preferred Labor). The other, a nursing home, went along with some patients who said they didn’t want to be cared for by black nurses. The employers settled the lawsuits for $250,000 and $56,000 respectively (EEOC v. Heartland Employment Services).

It might be worthwhile sharing these recent cases with employees who are working directly with customers. Remind them that they can’t discriminate on a customer’s behalf, and ask them to report any such customer requests to you and/or their supervisor. That way, they’re protected if the customer complains about their performance later.

Michael Boyette
Editor
HR Café Training Center

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Bullies, Harassers and Violent Workers: Tough Tactics to Protect Your People."  On Thursday August 27, our speaker Melissa Fleischer, Esq., will teach managers and HR professionals the legal ins and outs of dealing with problem employees and provide a proactive approach with five easy steps for avoiding violence and harassment in your workplace.  It’s a tall order, and the stakes are high. When companies get sued over bullying, harassment or violence – and it happens every day – the key issue is almost always negligence. The company was asleep at the wheel.

Sexual harassment: "You probably did it. That’s what men do.”

Dear HR Executive:

When you field a sexual harassment complaint, it can feel like you're walking a tightrope. Often, you’re dealing with an emotional complainant and an indignant accused – both of whom swear their version of events is the true one and the other is a big liar. It’s easy to get sucked into the story of one party or the other – especially that of the unhappy victim. But only trouble is ahead if you do.

Boys will be boys?
Case in point: In Sassaman v. Gamache, a female employee accused a male colleague of sexually harassing and stalking her. The man’s boss told him that if he didn’t resign, he’d be fired. 

The employee resigned, but later sued for sex discrimination. He recounted a climactic conversation in which the supervisor told him: “I’m afraid she’ll sue me. And besides, you probably did what she said you did because you’re male and nobody would believe you anyway.”

In court, the employer claimed the supervisor was only giving his opinion as to what other people thought, not justifying the forced resignation. But a federal appeals court thought otherwise, and allowed the male employee’s case to go to trial. The court said the supervisor defended his decision to side with the female employee “by pointing to the propensity of men, as a group, to sexually harass women.” This made it look like the man was forced out because of  “invidious sex stereotypes,” the court said.

“Guilty until proven innocent”
The court wasn’t sympathetic to the employer’s argument that it feared a lawsuit from the female employee if it didn’t get rid of the man. “Title VII requires employers to take claims of sexual harassment seriously,” the court said. But “it also requires that, in the course of investigating such claims, employers do not presume male employees to be ‘guilty until proven innocent.’ ”

That puts HR right back on that tightrope. Assuming a harassment allegation is male-on-female (still by far the majority of cases), you’re delinquent in your duty if you lean toward “he said.”  But if you lean toward the “she said,” you risk discriminating against the man as a man.

What’s the solution? A thorough and impartial investigation. In this case, the court was clearly swayed by the fact that the employer didn’t do such an investigation. The employer made “minimal, if any” efforts to verify the female employee’s allegations, the court said.

Although the supervisor did refer the matter to the local sheriff’s office – which found no indication of criminal activity – he didn’t investigate. Nor did he have his assistant look into the allegations. And he didn’t refer the case to the employer’s Equal Opportunity Officer. 

So although there were plenty of people around who could have investigated the female employee’s allegations – as well as the man’s counterclaims – nobody did.  And the employer ended up holding the bag. 

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Measuring Employee Attitudes: Find Out What Employees Really Think and Manage by Fact."  On Thursday, June 25, our speaker, Hay Group Insight senior consultant Mark Royal, will discuss best practices for designing successful survey systems and using survey results to drive organizational improvements. He will share examples of companies that have used employee surveys strategically to attract and retain talent, improve operating efficiency, manage change more effectively, enhance customer satisfaction, and boost bottom-line performance.

Employment testing on trial

Dear HR Executive,

If you pay attention to the news, you know one of the big stories of the day is President Obama’s nomination of Sonia Sotomayor to the Supreme Court.

And you probably also know that a lot of attention is being paid to a decision regarding employment testing made by the federal appeals court that she sits on – Ricci v. DeStefano. That decision has been bumped up to the current Supreme Court, where a group of white firefighters argued they weren’t promoted by the city of New Haven, CT, but should have been.

The headlines in the general press are about reverse racial discrimination. But for HR folks, the focus should perhaps be elsewhere – on the employment testing that caused the trouble in the first place. The white firefighters passed the test, but when no black candidates did, the city threw it out.

What to watch out for with employment testing
The city was properly concerned about employment testing that appeared to have an adverse impact on minorities. That’s one caution that the EEOC and employment lawyers have frequently issued to employers about employment tests.

Pending the Ricci decision, though, the way that point is going to apply in the future isn’t yet clear.

Even so, there are four important points about employment testing and aptitude assessment that will help you stay on the right side of the law if you bear them in mind.

1. Match the employment testing to meet your needs. The test should measure the quality you want measured, and not something else. Too many organizations use blunt instruments when a scalpel is needed.  For example, a knowledge test probably won’t tell you a thing about a candidate’s ability to learn, lead or solve problems. An integrity test will speak to an applicant’s attendance and avoidance of drugs, but it won’t give you much of an idea how well she’ll work in a team. Also, make sure the test doesn’t demand more skill or effort than the job. The courts have labeled as discriminatory tests that call for applicants to show more physical strength than a job requires, for example.
2. Make sure the test is valid. Whether you buy a test from a commercial vendor or create one yourself, you must ensure that it’s valid. That’s to say, it must actually predict job performance. In many recent testing-discrimination lawsuits, a test’s validity has been successfully challenged. A test’s validity coefficient, which your vendor should be able to provide, can theoretically range from 0 to 1.0. Specialists caution against placing confidence in a coefficient of over .70. And if the coefficient is below .10, the test is next to useless. Generally speaking, anything above .20 is useful, and above .30 is very useful. 
3. Use a variety of assessments. It’s a mistake to rely too much on a test in isolation. A good rule of thumb is that pre-employment testing should make up no more than one third of your selection process. Structured interviews, job simulations, and careful reference checks will help you balance the results of a candidate’s test(s). And it’s a good idea to do your testing early in the evaluation process, so you have ample opportunity to follow up if the applicant’s score raises questions.
4. Consider job simulations as part of employment testing. Of all the employment assessment tools available, job simulations may be the most versatile. They can assess learning abilities, customer service skills, teamwork potential, leadership ability, motivation and other qualities. The simulation can either be an actual performance of specific job-related tasks, or a multiple-choice online test featuring video simulations of various situations.

We’ll keep you posted about the Ricci decision and its implications for employment testing and adverse impact as soon as the Supreme Court announces its ruling.

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "No More Performance Reviews! A Revolutionary Approach to Performance Feedback" Most employees hate performance evaluations. Most managers dread giving them. Yet more than 70 million U.S. workers receive them each year. Why? Advocates of performance reviews say they raise productivity, differentiate salaries and protect against lawsuits. But it’s not true. No wonder just 5% of HR professionals are “very satisfied” with their performance management systems. On Wednesday, June 24, our speaker, Gary Markle, one of the nation’s most outspoken experts on performance management systems, will explain how you cope with this challenge.

Religious discrimination: a pilgrimage to Mecca

Dear HR Executive,

My, how the world has changed.

A Tennessee employer just had to pay $70,000 for refusing to let an employee depart on a pilgrimage to Mecca.

Not too many years ago, a case like this would have been so exotic as to be almost unimaginable in an American workplace. But in today’s multi-diverse workplace, any HR person worth his or her salt has to know what to do in situations like this before they spin out of control.

Request denied
The employee, who was named Wali Telwar, was a practicing Muslim who took seriously his religious obligation to make the hajj, or pilgrimage to Mecca, at least once in his lifetime.

According to the EEOC, he had earned some vacation days and asked to use them for an extended leave. (The pilgrimage itself takes four days, but if you were taking vacation to do it, you’d have to factor in travel time, too.) He asked for approximately 20 days' leave altogether.

But his employer, a hospital, wouldn’t agree. The hospital told Telwar he either had to work as scheduled or quit, and apply for rehire when he returned. He chose the latter option, but when he came back, the hospital wouldn’t take him on again.

An impossible choice?
The EEOC sued on Telwar’s behalf, and the hospital decided to make the best of a bad situation and settle for $70,000.

The EEOC framed the issue very concisely, putting it this way: “Demanding that an employee choose between his job and a mandatory tenet of his faith is a violation of federal law.”

Most of us would easily recognize this principle if an employee requested Sundays off, or asked to be excused on Yom Kippur.

But it also holds if the tenet of faith involves something more complicated, like a pilgrimage to a desert city in Saudi Arabia – or to a mountaintop in the Himalayas or a shrine in rural Portugal, for that matter.

Accommodations
Of course, it’s not always an easy matter to find a religious accommodation, and it’s possible that certain religious demands – no matter how sincere – may pose undue hardship on your business. When they do, you can say “no.”

But in most cases, an accommodation is possible. The EEOC says this might involve:

• flexible scheduling  
• voluntary substitutions or swaps 
• job reassignments and lateral transfers, or 
• modification of policies and/or procedures such as vacation or leave policies

We’re willing to bet that one or more of the above would have cost the Tennessee hospital less than what it eventually paid to make good on its lack of respect for an employee’s deeply held beliefs.

Dave Clemens
Editor-in-Chief
The HR Café Newsletter (www.hrcafe.net)

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Terminating Employees – How to Reduce Your Lawsuit Risk by Documenting Effectively." Terminating employees is dangerous. Fired workers who feel angry and mistreated often contact the EEOC or a lawyer – which means you’re in for a long, costly, distracting legal battle. But NOT terminating disruptive, underperforming employees is dangerous, too. You can’t survive in the competitive marketplace with bad-apple employees who sap morale and decrease productivity. On Wednesday May 27,  our presenter, Alyssa Senzel, Esq., will explain how to manage and document the termination process so that you’ll have the confidence to take the actions that are in your company’s best interests.

Work-life balance: The guys are hurting too

Dear HR Executive,

Who struggles more with work-life balance: men or women?

Conventional wisdom says women face more stress juggling their roles at work and at home.

But the Families & Work Institute found that poor Pops is suffering way more from clashes between his work and life balance. Three decades ago, just about one third of men reported significant conflict between home and the office. Today, though, 45% of men surveyed by the Institute say they experience such conflict.

By contrast, 39% of women now report serious problems with work and life balance, also up from one third 30 years ago. In other words, as women have increasingly moved into the workplace and gender roles at home have shifted, men are feeling more stress than women over work-life balance.

That may be because working fathers are spending more time with their families – an average of 3 hours a day now, compared with 2 hours in 1977. Working women’s time with the family stayed static at 3.8 hours.

Equal treatment
What does all this mean for HR?

There’s a legal angle, and there’s a management angle, to work-life balance.

Legally, the FMLA mandates equal treatment for both parents when it comes to your responsibility to provide leave for the birth of a child, or for someone whose family member needs care for a serious health condition. You can’t grant such leave for one gender and not the other.

Also, remember that plaintiffs’ lawyers have started to use the concept of family responsibilities discrimination in lawsuits against employers. So, you’d likely be in trouble if you, say, refused a promotion to a man because he plays a big role in taking care of his kids and you think he won’t concentrate on his new duties.

What they expect
From a management standpoint, it’s important to remember that the sharp younger employees who are key to your company’s future increasingly expect their employers to understand their need for work-and-life balance. They won’t come to work for you, or stay, if they think you don’t get it.

Proof of the point: The Families & Work Institute noted that among Millennials – employees who came of age after the year 2000 – working fathers devote an especially large amount of time to their families. These younger guys spend 4.3 hours per workday with the wife and/or kids, compared to just 2.4 hours for men their age in 1977.

That’s a big shift in attitudes about work and life balance, and implies a big shift in employee expectations, too.

For more on the Institute’s study, go here: http://familiesandwork.org/site/newsroom/releases/timeschanging-release.html

What you can do help Dads’ work and life balance
Your organization may already be quite Dad-friendly. But if you think you might need to do more to help working fathers, here are a couple of ideas:

• Check your culture. For example, are new fathers afraid to ask for paternity leave because they think it would hurt their careers? You may have some work to do with more traditionally minded managers who still consider that a man’s place is in the office.
• Consider flex-time or telecommuting options for new/young fathers, or those whose wives have extremely time-consuming jobs. But remember, getting away from the family may also provide these guys with a break from home stress, so make sure any flexible schedule does include significant office time.
• Weigh the pros and cons of offering a few days of paid paternity leave. Not every employer will want to afford this. But if you do offer paid maternity leave, you might want to even up the scales by doing something for the guys.

Father’s Day is coming up pretty soon – it’s June 21 this year. Maybe the fathers in your workplace would appreciate something other than a loud tie or a coffee mug inscribed “World’s Best Dad.”

Dave Clemens
Editor-in-Chief
The HR Café Newsletter (http://www.hrcafe.net)

Exempt employees: Watchdog, heal thyself?

Dear HR Executive,

It can’t be good news for us ordinary folk when even a government agency tasked with overseeing employment fairness can’t get the overtime rules right.

Yet that’s exactly what happened recently. The EEOC, the federal employment discrimination watchdog, admitted in a somewhat sheepish news release that it had in fact violated the Fair Labor Standards Act with its own employees. Of course, it’s DOL, not the EEOC, that enforces wage/hour rules, but still…

Where they went wrong
How did the EEOC go wrong? It seems the agency misclassified some of its mediators and investigators as exempt employees under FLSA overtime requirements when they weren’t. At least that’s what an arbitrator ruled after the union representing these employees filed a complaint.

Not that the EEOC didn’t think before it acted; the agency said it had hired an outside consultant that opined the mediators and investigators were exempt employees. So the EEOC was acting on supposed expert advice – and still fouled up.

The EEOC now says it will do whatever it must to make things right. But the whole episode points out what a delicate judgment call it can be to decide whether administrative and/or managerial employees are exempt employees or not.

Points to ponder
Here’s what we’d advise if you have to make such a call:

• For administrative employees, remember that to be exempt they must exercise independent judgment on “significant matters.” This rules out people whose most responsible task is deciding what kind of paper to put in the office printers. And it doesn’t matter whether they have “administrator” in their title if their range of judgment is limited.

• For managers, keep in mind that they’re not exempt unless they manage at least two full-time employees, and spend most of their time on truly managerial stuff – like hiring, training and disciplining.

• Don’t forget that exempt employees must earn at least $455 a week on a “salary basis.” This means their base pay isn’t linked to how much or how well they produce.

And if you’re really unsure, you can request an opinion letter from DOL at http://www.dol.gov/esa/WHD/opinion/flsa.htm. Given that DOL has pledged to enforce wage/hour rules with greater efficiency in the future, you could do worse than ask its opinion before you make a classification that could expose you to an investigation and a fine.

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference, "Performance Management: Why Alignment is Now Priority #1 - and How to Achieve it."  When employees fully invest themselves in their work, there’s a huge payoff to the bottom line. Despite the obvious benefits of an engaged workforce, studies have consistently shown that only one-out-of-four employees work to their full potential – more than half do only the bare-minimum required to keep their jobs – and 75% say they could be significantly more effective if they chose to be!  On Tuesday, April 14, our speaker, Christopher D. Lee, Ph.D., SPHR, will present a fast-paced, fun, and informative session that will provide you with a host of tips, tricks, tools and techniques you can use right away to transform minimally engaged employees into a workforce that goes the extra mile for your business.

EFCA -- Is Card Check Unconstitutional?

Dear HR Executive:
If you missed yesterday's (3/30/09) Wall Street Journal editorial on the Employee Free Choice Act (EFCA), you should check it out. To date we haven't heard a stronger case for defeating EFCA.

The gist of the WSJ argument is that the "card check" provision in EFCA is unconstitutional. Card check is of course a method for employees to unionize when a majority of employees at a company publicly sign authorization forms, or "cards," stating they wish to be represented by the union. The WSJ says that violates workers' constitutional right to "anonymous speech" (currently the yes/no decision is made by secret ballot).

The main point the anti-EFCA forces have made thus far is that workers who oppose unionization will cave in and vote yes because they'll fear being ostracized or even physically harmed. Given the violent history of the American labor movement, this argument certainly has merit.

But the WSJ article takes it a step further and says that forcing a worker to vote publicly is a violation of that person's constitutional rights: "Sanctioning -- and thereby promoting -- demands that employees publicly disclose how they feel about unionization clearly violates their First Amendment entitlement to vote and practice their speech privately."

EFCA advocates will claim that a worker can simply abstain from voting, but that misses the point. On the shop floor an abstention will be viewed as a "no" and potentially subject the worker to retaliatory threats and abuse. Those who favor EFCA have a significant hurdle to overcome: If voting is public, how do you protect the rights of workers who 1) don't want to be in a union and 2) feel their opinion on this issue is nobody's business but their own?

If card check is in fact anti-constitutional, and if EFCA passes, we'd see a wave of lawsuits filed by workers who claimed that their First Amendment and privacy rights were violated. How ugly would that be? The mere thought of it might make legislators think twice.

Here again is the link to the WSJ article.

Please share your thoughts by clicking on "comments" below.

Stephen Meyer
B21 Publisher

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference, "Personal Accountability: How Supervisors Can Get Workers to “Own” Their Jobs and Their Results." Why are some supervisors better than others at achieving goals? They all have the same motivational tools at their disposal: They can give employees raises, promotions and nonmonetary rewards when deserved. They can all use the performance review process to provide positive feedback and fire people up. But why do the best managers dramatically outperform the rest? What’s their secret? Two words – personal accountability.  Great supervisors have a unique talent for tapping in to an employee’s sense of personal accountability to achieve goals.  On Thursday, April 9, our speaker, Valerie Grubb, will lay out six steps successful supervisors can use to instill personal accountability in their direct reports.