We're Only Human Podcast

HR compliance is a necessary evil in the workplace. Rarely do employers make it to the top of the “best employers” lists by handling FMLA or DOL regulations well. Yet time and time again we see HR professional flocking to sessions like “Top 10 Ways to Get Sued in 2018,” taking notes like this is golden content.

Why do sessions like those attract so much attention when they don’t help employers create a more employee-centric, engaging workplace?

In today’s podcast discussion, I get the answers to these questions and others by interviewing Mike Haberman, one of the HR industry’s best resources for staying on top of compliance and labor requirements. Mike takes a very balanced approach by covering not only the compliance topics, but also by exploring future trends and how employers can improve their HR practices.

It’s a fun discussion and listeners will be treated to the story of when I was audited by the Department of Labor’s Wage and Hour Division, providing a great example of how NOT to make decisions about what’s best for your employees. #truestory

To connect with Mike or learn more about his work, you can find his blog at:
http://omegahrsolutions.com/

To listen to the archives of We’re Only Human and learn more about the show, check out:
http://upstarthr.com/podcast

global employment lawsDid you know, in some countries it is illegal to email employees after normal work hours? This is just one example of the interesting global employment laws that can catch an unsuspecting employer at an inopportune time. For instance, several years ago I was sending some workers to Saudi Arabia, and we found out at the last minute that we had to abide by the “Saudization” requirement, which forced us to hire local workers to support the contract, even if they were not qualified to do the work on the project. It pays to understand the requirements of the country you are working in.

My company Lighthouse Research has partnered with Papaya Global for our 2017 Global HR Practices study, and we asked companies about their level of risk and confidence in their existing resources. One of the preliminary findings of our study highlighted that 70% of companies are at-risk due to limited understanding of local compliance requirements. Additionally, nearly three-fourths of companies manage the complexities of their global workforce in-house, creating a vulnerability to potential problems if they are unaware of local customs, requirements, and regulations.

Did You Know? Global Employment Law Differences

It has been said that companies based in the United States have it “easy.” In terms of labor laws, there are relatively few that govern how businesses operate. Take the common “employment at will” doctrine for example. In essence, companies can terminate workers at any time and for any reason as long as it’s not explicitly based on a discriminatory reason. In other countries, work contracts, workers’ councils, unique benefits requirements, and strict termination rules that define the employment relationship are common.

  • Other countries however, commonly rely on actual employment contracts to hire workers. Because workers are tied to contracts, terminations often become complicated. For instance, in Dutch employment law, the statutory period of notice for an employee is one calendar month.
  • During one research interview, an international human resource management leader at a German company took some time to explain her challenges with the local workers’ councils. In her story, the company was trying to gather data through an employee survey, but the workers’ council would not allow the HR team to share the information with the consulting partner to analyze and interpret the data, creating a stalemate.
  • Other challenging areas include benefits and leave. For instance, employers must pay Chinese workers 300% of the value of any unused vacation days at the end of the year
  • Brazil requires employers to offer employees thirty calendar days of paid leave after twelve months of service.

It’s clear that without some awareness of the requirements for global employment, companies can often make costly missteps, but there are ways to minimize the risk associated with global employment. Want to learn more? Check out the rest of the blog at Papaya Global to learn how to get educated before it’s too late.

In case you missed it, there was a SHRM Conference Daily post this week with a very interesting headline. In short, the EEOC said that training doesn’t reduce discrimination. The logic behind the commentary had a few holes that I want to point out really quick, but I want to spend the majority of the time today helping you to understand what actually works for eliminating harassment. Here’s the synopsis:

The biggest finding of the U.S. Equal Employment Opportunity Commission’s (EEOC’s) Select Task Force on the Study of Harassment in the Workplace may be what it failed to find—namely, any evidence that the past 30 years of corporate training has had any effect on preventing workplace harassment. “That was a jaw-dropping moment for us,” said EEOC Commissioner Victoria A. Lipnic in a Sunday Session at the Society for Human Resource Management 2016 Annual Conference & Exposition.

Two quick notes that need clarification:

  • There are 90,000 harassment claims, so training doesn’t work. What kind of training was used? How many of those complaints actually were legitimate harassment issues?
  • 90% of harassment is never reported. That means that hundreds of thousands of workers in the US are harassed every year. I don’t buy it. Working with a jerk or someone that is not always pleasant doesn’t equal harassment, but many people miscategorize it that way all the time.

How to Completely Eliminate Harassment

Want to absolutely crush harassment at your organization? It requires a culture that encourages ethical treatment of others. It requires a company that values not only individuality, but the fundamentals of respect and appreciation for others.

Think about it. We’ve all worked with people that simply didn’t respect others around them. Those people are the ones that often bring about harassment, because they do not have the respect for their peers and coworkers that is necessary for good working relationships.

So, we need to create organizations that are uncomfortable for those kinds of people. We need to make it unpleasant to be disrespectful by addressing it as a performance issue. We need to create an environment where those kinds of behaviors demand a swift and unpleasant response instead of sweeping them under the rug, brushing them off, etc. Harassment is serious, and not just in a “oh boy, we’re going to get sued for that one” kind of way. It can cost you great, productive employees and drive away the talent that your organization needs.

So, it may be no small feat, but crushing harassment is a worthy goal. Start today. Build a culture of respect and appreciation. Take issues seriously and address them promptly. Then you can reap the benefits of a collaborative, harassment-free workplace.

This summer at SHRM I was looking through the sessions in the app in an attempt to figure out which I wanted to attend, and I saw this one right up front.

SOLD OUT – #707: HR Metrics that Matter: The Process of Developing a Business Scorecard

It made me stop and think, especially in light of some of the conversations I had with others at the event about what sort of content was being offered. For instance, one session at the event was focused on the usual “top ten ways to avoid legal trouble this year,” and it had packed out the entire room and the overflow area as well. I’ve always had trouble with those types of training on the supervisory side of things. Why? Because it makes us focus on the negative aspects of our work, how to avoid getting “in trouble,” and makes us seem more like a nanny in the workplace than a trusted resource for managers/employees and a key business leader.

Policies vs. Actual Contributions

I’ve always had a love/hate relationship (mostly hate) with policies. I think we should take more time to coach and support than regulate and demand. Yes, there are times that come when we must make a rule, be the bad guy, etc. but it shouldn’t come on a daily basis. I recently shared Alison Green’s comments on how managers can have a good relationship with HR. The comments on that blog post when she linked from her site are pretty standard, and yet they still hurt those of us who see ourselves as good and helpful business leaders (instead of merely being the “no, you can’t do that” department).

Going back to the original intent of this post, I was glad to see the metrics session being sold out. Why? Because it’s something that we can do that is not just about being sued, covering our company’s butt, or some other litigation-related idea. Even small companies have the ability to gather and use data in a meaningful way.

In my opinion HR pros who make decisions solely on laws and what the handbook/policies allow aren’t making much of a contribution to the organization. It’s those that take the initiative to find ways that they can contribute in a more meaningful way, offer advice and flexibility that pushes the boundaries, and don’t say, “No” to every request that comes in (even if they are a little bit scary).

A Shift to PositiveHR?

It gives me hope that our philosophy as a profession is changing. SHRM and other organizations will continue to offer these “how not to get sued by your employees” sessions, because there is significant demand for them. But over time, I hope to see us focusing more on the other end of the spectrum. There’s even a group of my friends that started this #PositiveHR movement on Twitter, because they believe that we have the opportunity to do great things if we are truly positive and not self-defeating at every turn.

I do understand that there is a natural maturity curve as well. Smaller organizations or those with inexperienced HR pros will drift toward the legalistic side of things, while organizations with more radical HR pros will seize opportunities to focus on engagement and other positive things we bring to the table. It just seems that many organizations (and HR pros) are reluctant to move beyond the legal side of things. Is it because it offers them more power inside the organization? Is it because they need to feel more intelligent/informed than their peers? I’m not sure…

What are your thoughts? Are we still mired in this world of legal issues or is there a chance we can more into more strategic areas of impact? 

Recently someone asked me about allowing employees to volunteer for free instead of being paid. I wanted to answer that more fully here because it might be something you have run into or might be considering in your own business.

For starters, here’s the DOL ruling on that. Let’s break it down and look at two broad categories: for-profit and non-profit organizations.

Employing volunteers at non-profits

The Fair Labor Standards Act (FLSA) defines employment very broadly, i.e., “to suffer or permit to work.” However, the Supreme Court has made it clear that the FLSA was not intended “to stamp all persons as employees who without any express or implied compensation agreement might work for their own advantage on the premises of another.” In administering the FLSA, the Department of Labor follows this judicial guidance in the case of individuals serving as unpaid volunteers in various community services. Individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, not as employees and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service.

As you might expect, non-profits have some leeway here. I talk again at the end of this article about a specific problem non-profits might run into with employees and volunteering. It’s when we get to the for-profit side of things that it really cracks down on what employers can do.

Can paid employees volunteer for their employer?

Under the FLSA, employees may not volunteer services to for-profit private sector employers. On the other hand, in the vast majority of circumstances, individuals can volunteer services to public sector employers. When Congress amended the FLSA in 1985, it made clear that people are allowed to volunteer their services to public agencies and their community with but one exception – public sector employers may not allow their employees to volunteer, without compensation, additional time to do the same work for which they are employed. There is no prohibition on anyone employed in the private sector from volunteering in any capacity or line of work in the public sector.

Okay, so that helps us understand if employees can volunteer their time.

  • Private/for-profit=no
  • Public/for-profit=yes, as long as the person isn’t an employee doing the same work they normally perform

Even if the employee wants to do it and offers, there is still the chance that the employer would be seen in a negative light. Remember my visit to the OFCCP a few years back? Here’s the highlight of the visit:

Ever heard the phrase “innocent until proven guilty?” Not the way of life with the OFCCP, apparently. During the seminar, the speaker reminded us that having interview notes and other data available could help in the event of an investigation. However, in the next second he casually mentioned, “If you don’t have the data to back up your claims as to why person X was paid differently from person Y and one of them is a minority, we will assume the worst intentions.”

I’ve been around the business world long enough to know that if you’re looking for trouble, you’ll find it. If you assume the worst, you’ll find something to substantiate your claim, no matter how minuscule.

Even if the person is a good employee, there’s no guarantee that will always be the case. DOL audits aren’t started by employees who are happy with their work. They are started by people who are generally unhappy or even those who had a single rough day at work and are looking for a way to fight back. Keep that in mind–it happens to everyone.

Can employees volunteer to work fewer hours?

There is an interesting tangential discussion that I wanted to include here. One of our employees at a previous job was interested in reducing her work schedule to help get through lean times without eating up all of her vacation time. In that instance, exempt employees can voluntarily reduce their work hours, and their pay, without causing issues for the employer.

In that instance, I simply had her draft a short email to her manager and me stating that. The verbiage was something like:

To Whom It May Concern: 

I realize that we are seeing tighter budgets and I would like to voluntarily request a 32 hour (4 days per week) schedule every other week until further notice. I understand that I will not be compensated for the additional 8 hours I take off and that those hours will not be deducted from my leave balance. I also understand that my manager can recall me to full time service at any time without notice. 

Sincerely, 

Jane Doe

Again, if we had simply told the person to stop coming one day every other week, that could have opened up some FLSA issues since technically the person could have said they were an exempt professional ready and willing to work (thus owed their full compensation).

Can volunteers be considered employees?

One final area to cover. Can volunteers be treated like employees? As we have seen, for-profit organizations would do well to stay away from the entire concept of volunteers. For that reason we’ll discuss nonprofits. If given the option, I would try to avoid having volunteers performing any work that other ordinary employees are doing. That helps to keep the “swim lanes” separate and can help to avoid any issues between staff. Imagine doing work for free that the other person next to you is being paid for and you’ll quickly understand that concept.

We used volunteers when I worked at a nonprofit organization and the screening process was handled outside of the normal employment process for the sake of simplicity. We didn’t want to clutter up an already busy hiring process with people who wouldn’t technically be employees.

What other thoughts do you have about employees and volunteering? 

parental leave requirementsMy friend Lance Haun wrote last week about why he thinks we should fight for legislating parental leave in the US. I don’t know that I’ve ironed out my point of view 100%, but I don’t know that I agree with him at this point. Remember, this is a dialogue, not a requirement to conform. :-)

So, as a father to three small children, you might expect me to be for this type of thing. I mean, heck, getting paid to stay home with a baby would be pretty darn awesome. I love my three kids and spending time with them is pure joy.

But here’s the core reason I’m not a raving fan of legislating parental leave:

it’s not the government’s job

Now, if a company out there wants to pay parents, men or women, for leave, then that is an excellent idea. I’m all for it, and I would be happy to work for such an organization. But the truth is that according to census data, approximately half of the workers in the US are working for employers with fewer than 500 employees. I’ve worked in several companies from 10-600 employees (and some larger) in my working life, and I have no earthly idea how those companies would be able to afford paying people for not working. I remember at one employer we had six of our staff members having new babies in a single month!

Family medical leave is one thing–holding your employee’s job while he or she takes time at home for a variety of health and family-related reasons isn’t easy, but it’s doable. But paying them to not work? That’s something else entirely. Several of those companies I worked for were very small or nonprofit organizations, which meant there was little to no wiggle room for things like bonuses or other performance-related measures, much less a coffer set aside to pay people who were expecting children.

But what about Netflix?

The big story last week in this world was about Netflix offering a full year of paid leave for new parents. Having a baby? No worries–take up to 12 months off. People declared the company forward-thinking and were quick to jump on board with the idea.

But this wasn’t forced. It wasn’t legislated. Nobody made them do it.

They chose to.

Why? Probably because it’s a great recruiting tool. It’s also pretty awesome as a retention tool for new parents.I’ve talked before about when our girls were born and my boss didn’t seem especially receptive to me taking ANY time off, even though I only requested a week. 

And you know what? That’s what started the ball rolling for me to leave that company and find an employer who did offer me some flexibility to support my family, whether financially or by being there physically for them. I think more companies will offer slightly-less-boisterous benefits in this area over time, because they’ll see (as they did with medical insurance, workplace flexibility, and a host of other benefit offerings) that it makes them more competitive, makes employees happier, and creates a better working environment. 

Last year I was talking with a company about a new leave program for fathers. The company had been losing male employees in the 20-35 age range at 2-3 times the rate of other employee groups, and they determined that it was the long hours surrounding the birth of a new child that often contributed to the turnover.

So the company began offering 1-3 months of paid leave for new dads and reversed the negative turnover trends within a few short months. That’s an exciting story and one that I expect to hear more often as time goes on.

Facebook got a series of kudos and strange looks when it offered to freeze eggs for young ladies who would rather work than start a family. It’s the same story. The company wanted to offer something different that appeals to a specific audience and makes it more competitive than others in the space. 

The recruiting spin

I’ve recruited for some great (and not so great) companies. The thing that I absolutely loved about one of the good ones was that I could play up some of the benefits we had that no other company offered. Flexibility? We don’t just say it, we live it. Healthcare? We have you covered. Need personal leave? We treat you the same as we treat the CEO–no questions asked. Have an issue? You can get access to anyone, up to the Owner/CEO, in moments.

I’ll say it again: I loved representing the company that offered what others didn’t. And that’s why I think Netflix is doing this. And that’s another (smaller) reason I’m not keen on the government attempting to force employers to provide paid leave for parents. It has to be a choice for the company. Some can afford it and some can’t. Some would be overly burdened, some wouldn’t care. But it’s not a blanket solution, at least not overnight.

Seriously, I’ve been there

When my son was born almost a year ago, my wife had no work benefits to continue her pay. She had some accrued leave and then we used savings to keep her at home until she was ready to go back to work at the end of her leave. And it was fine. I didn’t ask or expect anyone else to foot the bill for her to stay home, because it was our choice in the end. Just as it is her employer’s choice to offer the benefits it does.

This isn’t the same as the Civil Rights Act or the ADA. People don’t choose a specific color, gender, or disability. The discussion here is whether we should pay people who choose to have children, and I’d say it’s up to the company to decide, not the government.

I’d love to hear your thoughts…

 

If you’re an in-the-trenches HR pro, the Affordable Care Act has brought multiple emotions to bear: frustration, worry, and more. I know exactly how it feels, but I have also come to appreciate a particular side effect of the law.

The “good old days”

The creepiest thing I could find referencing the ACA online.

The creepiest thing I could find referencing the ACA online.

Five or ten years ago, the benefits administrator for a fully insured organization would receive a rate renewal notification from the insurance company with the new premiums for the coming plan year. In most cases, that rate was set in stone and the organization had to grin and bear it. We’ve been over the ACA health insurance premium increases before, but that’s not what we’re focusing on today.

I was speaking with a friend earlier this week about some changes his organization’s leadership team is debating related to health insurance for employees. There was a time in the past where this type of internal discussion would have made me a little uncomfortable; however, with the implementation of the Affordable Care Act, it would be crazy not to spend some time talking about how the market is changing, what trends are evident, and how to develop a strategy for moving forward.

The single most important result of the ACA is this: perspectives are finally changing.

Click here to continue reading about the best change as a result of the Affordable Care Act.