It is with pleasure that I share with you this blog on corporate culture I wrote for SHRM's We Know Next. http://weknownext.com/blog/fish-dont-know-they-swim-in-water
Thank you,
Jonathan
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Fish Don't Know They Swim in Water
It is with pleasure that I share with you this blog on corporate culture I wrote for SHRM's We Know Next. http://weknownext.com/blog/fish-dont-know-they-swim-in-water
Thank you,
Jonathan
Holocaust Days of Remembrance
The United States Congress created the Days of Remembrance as our nation’s annual commemoration of the Holocaust. This year, the Days of Remembrance begin on Monday April 8, 2013.
During the week, may each of us remember, even if for only a moment, the millions who were murdered (including, but not limited to, 6 million Jews) by the Nazi Regime and their willing collaborators. As a result of the Holocaust, approximately 2 out of 3 European Jews were murdered.
May we also remember the countless "Righteous Gentiles" who risked their own lives to save those who were targeted for genocide simply because of who they were.
On a personal note, my family tree is overwhelmed with tombstones for Holocaust victims. At the same time, we have some survivors. For example, one aunt survived only because she was hidden by the the courageous inhabitants of a Catholic Church in Poland.
Each year, I try to read at the Holocaust Museum in DC a few of the names of the many millions murdered. I will do so this afternoon as my way to remember and to respect those who were taken from us.
Never should these people be forgotten. Never again should this happen to any people.
Friends Don't Let Friends Use HR-Ese
I am pleased to post a blog I wrote for SHRM's We Know Next on using plain speak in the workplace. It can be found here.
Thank you,
Jonathan
Boys Clubs Go Viral: TweetChat with SHRM's We Know Next
Please join me, @Jonathan_HR_Law for a #NEXTCHAT with SHRM's @weknownext on "Boys Clubs" in the workplace! March 27 3:00 p.m. - 4:00 p.m.
Hope to "see" you there!

Twitter Coverage of EEOC Commissioners' "Chat" At the SHRM Employment Law and Legislative Conference
I am pleased to post another blog I wrote this month for SHRM's WeKnowNext. The blog includes tweets I wrote, during and after, the chat between Commissionrs Feldblum and Lupnic at the SHRM Employment Law and Legislative Confenence in D.C. They took the "dis" out of DC "disfunction.
http://www.weknownext.com/blog/eeoc-comissioners-chat-at-the-shrm-legislative-conference
What's Behind The Surge in Disability Claims?
I am pleased to post my most recent article for Fortune/CNN on the surge in ADA claims: http://management.fortune.cnn.com/2013/03/06/disability-workers-united-states/
Thank you.
Jonathan
Downton Abbey, Inc
Boys Just Want To Have Fun
It is with gratitute to SHRM's HRMagazine for publishing my most recent article on Boys Clubs:
Boys Just Want to Have Fun
The term “boys’ club” refers to the unofficial and often impenetrable group of men—usually white men—in an organization or department who have effective control and power. Being part of or having access to the club often is critical to making the right connections to advance within the organization. Because these groups often form covertly, and sometimes as a result of unconscious rather than conscious bias, the membership does not always correspond to the organizational chart. Moreover, top executives often deny the existence of an exclusionary club. I have never seen a “formal” boys’ club, yet I would be foolish to deny that it exists at some organizations. When it comes to determining the scope of a boys’ club, official positions may be relevant but not determinative. I have seen organizations with gender equity at the top, but the real power is held by men. Conversely, I have also seen organizational charts where most power positions are held by those with Y chromosomes, but I didn’t think there was any gender bias in general or a boys’ club in particular. Why are these clubs present in some companies? And how do we eradicate them? I do not pretend to have all the answers, but I do have some thoughts to help HR professionals move toward equal employment opportunity (EEO). Bias in Your Backyard Sex discrimination, including gender stereotyping, is illegal. More than that, it is bad business. Ensuring gender equality is a business imperative in terms of attracting, retaining and advancing talent that goes beyond the legal imperative. We exclude women or any other group at our peril. You may be thinking, “Of course. This is hardly news.” Most executives outside of HR would agree. They understand the business drivers mandating diversity and inclusion. Still, most do not see the bias in their backyards. Don’t assume that everyone understands the business costs of bias. Why Boys’ Clubs Exist There are many reasons an organization or a silo within may have a boys’ club. The first is what the U.S. Equal Employment Opportunity Commission calls “like-me” bias: the human tendency to be more comfortable with those who are like you. “I don’t discriminate,” says the executive. But he socializes with, plays golf with and feels more comfortable among those who look like him. Does this risk exist in an organization where women are in control? You bet. Executives in these organizations face the same risk of like-me bias to the detriment of those with Y chromosomes. Boys’ clubs do not justify girls’ clubs, legally or morally. Power clubs that exclude men are also bad business. Like-me bias is usually the product of unconscious affinity toward similarity. Sometimes, however, conscious considerations contribute to a boys’ club. These considerations may be well-intentioned. We live in a painfully litigious world. One misstatement may later be used as evidence of bias, even if the statement was made out of awkwardness as opposed to malice. In the “gotcha” world of employment litigation, leaders appropriately want to avoid saying the wrong thing. They sometimes inappropriately avoid people they fear may perceive their words in a negative light. But you can’t avoid bias claims by avoiding those who are different from you. That’s called bias. There is more room for human error in a diverse group. While that may explain, in part, why some clubs exist, it does not justify their existence. In addition, members of boys’ clubs often justify their activities as being primarily social. Work is hard and seems to be getting harder. In the 1970s, Spiral Starecase sang, “I love you more today than yesterday but not as much as tomorrow.” The theme song for today’s business world could be “I expect more from you today than yesterday but not as much as tomorrow.” So, when people work hard, they may want to play hard, too. In mixed-gender groups, the sexist “joke” is more likely to be costly, and the appropriateness of going to strip clubs is more likely to be challenged. So we move from the ’70s to the ’80s, when Cyndi Lauper sang “Girls Just Want to Have Fun.” Today, the boys who just want to have fun fear that the price tag may be too high if women are included in certain activities, so some don’t include them. Dismantle Boys’ Clubs Just so there is no confusion: Even in male groups, the sexist jokes are not funny and the strip clubs are offensive. There are many men—I am one of them—who say so, but fewer men than women will bring claims based on them. There is no magic bullet to dismantling these clubs, but here are 10 recommendations for your consideration:
Some women will stay with your organization but opt out of the social events where inappropriate behaviors occur. Marginalized, these employees don’t realize their full potential. Worse, they may take their talent and outside relationships to a more inclusive employer. Inappropriate conduct may not be severe or pervasive enough to create a hostile work environment, but it may create a boys’ club when women choose not to go along to get along, a choice no one should ever have to make. The author, a partner with Duane Morris in Philadelphia and managing principal of the Duane Morris Institute, focuses on counseling, training and strategic planning to minimize litigation and unionization. |
Common Pitfalls: The Devil Is In The Details; Regulatory Compliance
Here are 10 common or potential regulatory hurdles that may confound employers:
1. Under the Fair Labor Standards Act (FLSA), a meal period of less than 30 consecutive and uninterrupted minutes is work time unless "special conditions" exist. Be prepared to litigate hard to establish those special conditions. Bon appetit.
2. What constitutes "exercise of discretion and independent judgment" for the administrative exemption? The FLSA definition is as clearas mud.
3. The FLSA does not permit docking pay for exempt employees who are ready, willing and able to work when the employer shuts down, for example, for holidays or weather emergencies. Don't jeopardize exemptstatus by treating these employees like nonexempts.
4. Expect more age discrimination claims as some Baby Boomers postpone retirement and others re-enter the workforce.
5. Under the Americans with Disabilities Act, the U.S. Equal Employment Opportunity Commission all but suggests that employers should assume that an employee has a disability, ensure nondiscrimination andmake accommodations where reasonable. Expect the EEOC--and probably many courts--to spend less time on threshold coverage questions.
6. When it comes to making hiring decisions based on criminal records, the EEOC prefers that employers make individual assessments. Theagency's aggressive position will be tested in the courts.
7. Family and Medical Leave Act regulations allow employees to take extraordinarily short periods of leave. Unscheduled intermittent leave continues to flummox employers, but call-in policies can help.
8. Employers cross the border into problematic territory for not purging 1-9 forms when permitted, if such forms are not in compliance.
9. The Uniformed Services Employment and Reemployment Rights Act requires employers to work to re-employ service members. They have to track factors from compensation to promotions employees would have received had they not been on military leave.
10. Proposed rules for the Labor-Management Reporting and Disclosure Act would make those who advise employers "indirect persuaders." That means an employer might have to report that a lawyer gives adviceon how to stay union-free. This arguably is a government intrusion into attorney-client privilege.
The author, a contributing editor of HR Magazine, is a partner with Duane Morris, a Philadelphia. based law firm.
This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an atttorney-client relationship.
A Valentine's Day Warning
As oiginally published by SHRM's We Know Next: http://www.weknownext.com/blog/youre-the-love-of-my-life
PA SHRM State Council Legislative and Legal Conference (April 19)
Register today for PA State Councel of SHRM's Legislative & Legal Conference.
DMi 2013 WINTER WEBINAR SERIES
WELCOME TO THE NEW YEAR!
Webinars begin January 22 with
Tough Love: What Your CEO Won’t Tell You About HR But I Will (Jonathan Segal) STRATEGIC HRCI APPROVED
Check out all of our offerings here. Happy New Year!
Is There Room for Humanity in HR?
I am pleased to post my recent blog for SHRM's We Know Next: http://www.weknownext.com/blog/is-there-room-for-humanity-in-hr
This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an atttorney-client relationship.
Criminal Background Checks in 2013: FCRA, Meet Title VII
As we all know, if an employer uses a third party to conduct criminal background checks for it, the Fair Credit Reporting Act (FCRA) applies. Generally speaking, there are three (3) steps mandated by the FCRA in terms of the communications between the employer and the applicant or employee: (a) prior written authorization; (b) pre-adverse action notice; and (c) adverse action notice. Effective January 1, 2013, there are new forms that must be used as part of the process. In particular, an updated “A Summary of Your Rights Under the Fair Credit Reporting Act,” must be given to applicants and employees as part of pre-adverse action notice (with regard to criminal or other records).
In the case of investigative consumer reports, which include personal interviews as opposed to relying solely on documents of record, the revised notice must be given as part of the first step, too.
For a copy of the new form, paste and see Appendix K: http://bit.ly/Rv6XqS
In this regard, it is important to note that the FCRA no longer is enforced by the Federal Trade Commission (FTC). Rather, it is enforced by the Consumer Financial Protection Bureau (CFPB). The CFPB assumed enforcement and rule making authority from the FTC under the Dodd-Frank Wall Street Reform and Consumer Protection Act. As employers update their forms to comply with the FCRA, now is also a good time to update their forms to take into account the EEOC's guidance on criminal records. See http://www.eeoc.gov/laws/guidance/arrest_conviction
Generally, the EEOC requires that employers make individualized assessments, using the Green factors: (a) nature of job; (b) nature of conviction(s); and (c) time frame since conviction. Green refers to the seminal appellate court decision in this area. As part of recommended individualized assessment, the EEOC encourages employers to do more than consider the Green factors.
The EEOC has stated that the individualized assessment also requires "that an employer informs the individual that he [or she] may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him [or her]; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity." The FCRA requires only that employers notify applicants and employees of the conviction record which would be disqualifying and provide them with an opportunity to correct any mistakes.
The individualized assessment inquiry is a due process right that gives the applicant or employee an opportunity to provide potentially "mitigating" factors for the employer to consider, even assuming the conviction record is correct. This very small change can make employer decision-making more defensible before the EEOC. It also is consistent with general notions of fundamental fairness.
It should be noted that the EEOC recognizes that there can be "targeted exclusions" such that an individualized assessment is not necessary. That is where there is tight nexus between the 3 Green factors. More detail on targeted exclusions can be found in guidance referenced above.
Don't forget state and local laws, too. For example, Newark has become the most recent jurisdiction to “ban the box.”
For now, however, let's keep it easy. Update your forms to comply with the FCRA and consider including an inquiry as part of your pre-adverse action notice consistent with the EEOC's preference for individualized assessments.
THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATION OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.
Employment Predictions For 2013 From the Guy Who Predicted A Bull Market in 2009
My most recent blog as published by SHRM's We Know Next: http://www.weknownext.com/blog/employment-predictions-for-2013-from-the-guy-who-predicted-a-bull-market-in
This blog should not be construed as legal advice, as pertaining to specific factual circumstances or as establishing an attorney-client relationship.