Monday, December 28, 2009

HR: Health Care Reform

Health care reform is critically needed in this country -- yet it appears we are going to be unable to create reform that is not built on political issues more than it is based (as it should be) on an objective assessment of needs, costs, and solutions. Maybe not possible but...

According to a recent posting from Employee Benefit News (Article linked in title), one of the biggest issues of the current health care reforms are "unintended consequences feared." I have a favorite quote, from a novel: "You’re a lawyer, Victoria, and you know about foreseeable consequences. If you can foresee the consequences, you are charged with intending them, are you not?" (Lisa Scottoline, Devil's Corner)


Comment: Why are we unwilling to carefully examine the potential implications, both positive and negative, that are associated with every aspect of something as important as health care?

HR: OSHA Compliance Boost!

Like the dramatic increase in compliance activity under the Fair Labor Standards Act (FLSA), OSHA enforcement is being dramatically increased. Increased awareness, monitoring, and training are going to be required for organizations -- again increased responsibility for human resource professionals.

According to one recent announcement for a webcast, as well as other news articles, the major areas for increased enforcement are:
  1. National emphasis on recordkeeping with greater scrutiny of OSHA logs.
  2. Annual verification of lockout/tagout procedures.
  3. Separate lockout/tagout for each piece of different equipment.
  4. A new "Combustible Dust Standard" implemented in April 2010.
  5. Per employee penalities for Personal Protective Equipment (PPE) and training violations.
  6. Liability of general contractors for hazards they did not create.
  7. OSHA is using settlement agreements as a way to get emploers to agree to undertake additional obligations.

Comment: OSHA compliance, for many (not all) firms, has become somewhat routine after years of getting "comfortable" with OSHA regulations -- plus limited budgets and enforcement. It's a new game -- and HR is going to have to keep up.

HR: FLSA Compliance (Again)

According to a recent Employee Benefit News Legal Alert, (12/18/2009), "wage and hour claims are increasing rapidly." (Title above is linked to article.) The Department of Labor has markedly increased it efforts to enforce the Fair Labor Standards Act. The most common mistakes, according to these expert contributors, are:
  1. Giving "comp time" to non-exempt employees.
  2. Treating as exempt anyone who is paid on a salary basis.
  3. Treating as exempt anyone who is paid on commission.
  4. Paying overtime only on hourly wages.
  5. Treating as exempt anyone who is engaged in sales.

Comment: The FLSA is clearly one of the most confusing, outdated pieces of legislation that HR professionals deal with -- but one they must deal with every day. "The consequences for noncompliance can be severe." It has been a long standing part of my mission to comment, "with an attitude" about this confusion and complexity. But the next step is clear: conduct your own compliance audit and make sure you're working with competent legal advice on these increasing visible issues. (This is a repeat post in some ways -- important because this topic is showing up in some many sources.)

HR: A Settlement from the Sports World

We have taken a few messages from the world of sports for our Performance Project, www.performance-project.com, which has focused more on the live performing arts. But here's a story with a little insight for HR professionals. According to several sources, Mark Mangino resigned as the head coach of the Kansas football team -- the university intended to fire him before accepting his resignation. He had four years left on a contract worth $2.3 million per year. He received $3 million as a settlement.

The interesting part for HR comes in other details of the settlement: the school agrees to withdraw and nullify the results of an investigation related to Mangino's behavior -- to collect and destroy all copies of documents that were created as "talking points" for the investigation. Mangino agreed to waive all rights under federal and state laws, including Title VII, the Age Discrimination Act, and the Americans with Disabilities Act.

Comment: Not sure if I want to say "Interesting" or "WOW!" Settlements are common in the world of HR -- agreements like this are often much cheaper, less time consuming, than costly investigations and litigation that may lead to a better picture of the "truth." But I often wonder about...

HR: "With an Attitude" or "More Irritating"

According to an "Executive Briefing," December, 2009, Chief Learning Officers need to "be more irritating" in 2010 if they want to get ahead. I think this is a question that could easily be posed to the entire human resource profession. (Full article is linked in title.)

The article takes an excellent direction if proposing, perhaps counterintuitively, that learning needs to be an "irritant" if it's going to change behavior.

Comment: I am in complete agreement that learning needs to be, in part, irritating. I've always believe in the challenges of "unlearning," the need for exercises which often challenge participants to struggle (or even fail) in the safety of the classroom.

But I'm fascinated by this challenge from a broader perspective. In the 2007 Human Resource Competency Study, the profession was challenged to become "credible activists," to practice human resources "with an attitude." Since 2007, the HR challenges have continued to grow at an alarming rate. It could be argued that professionally we've lost as much ground as we may have gained in some areas -- there have not been a lot of signs that the profession has gained in standing, in strategic input. Maybe "with an attitude" is not enough -- maybe we need to become a bit irritating.

HR: Sarbanes-Oxley vs. Supreme Court

The WSJ (12/7/2009) reports on one of the elements of the continuing battle over Sarbanes-Oxley. One issue of the the battle is reaching the Supreme Court, which will hear a challenge to the constitutionality of the Public Company Accounting Oversight Board. The Board, which regulates the auditors of publically-traded firms, challenges that the members of the board should be appointed by the president and confirmed by the Senate.

As part of the challenges, more evidence has been submitted that shows that the cost of Sarbanes-Oxley far outweigh its benefits.

Comment: A couple of different directions here. Sarbanes-Oxley has been criticized since its inception as being a regulatory and compliance nightmare that is not worth its cost. It's come under a lot of fire recently. From another view, why do we continue to implement legislation with no real assessment of the potential implications, positive and negative? It's certainly creating continued growth for the HR and legal profession -- but is it the growth that we really need in the HR world for building great organizations and great employees?

Monday, December 07, 2009

HR: "Contract" Trainers

According to TrainingIndustry.com (11/23/2009), recent high profile cases involving employee misclassification under FLSA should cause concern, particularly in cases where "contract trainers" are involved.

The article included a quiz designed to "reduce or eliminate potential risk and liability." This particular application to contract trainers provides a very good insight into the "test" under IRS rules. Here are a few of the key questions -- a yes answer to any one of them could put a company at risk. Do your independent contract trainers...

  1. report to, or work at your location?
  2. get scheduled by you?
  3. negotiate with you for pricing and payments?
  4. get reimbursed for travel expenses?
  5. get direction from you on how to conduct the training?
  6. get coursework or other training materials from you?
  7. ...

Comment: I do not see how, with these guidelines, how any contract trainer could not be considered an employee. As an independent trainer for over 30 years, my clients have the right to ask me to conduct training at their sites. They have a right to schedule the training at times they desire. Of course, we negotiate price and payments and my fees have always added travel expenses. My clients have the right to provide direction on training, i.e., perhaps requesting that I hold a discussion of something as part of a particular class. Under FLSA and the IRS rules, this is something I just don't (and will never) get.

HR: HR "Reverting" to "Maternalism

According to a Fox News (11/30/2009) online story, companies appear to be returning to the early 1900's "paternalism" in response to the H1N1 (Swine Flu) issue. Although this time it's being labeled "employers playing 'Dr. Mom.'" Employers are teaching hygiene, distributing informational materials, training managers, encouraging employees to stay home (with pay), and modifying policies on required documentation from doctors.

Company maintenance practices have also changed, resulting typically in escalated cleanings and disinfecting of facilities.

Comment: The response to the swine flu has been exaggerated according to some who feel that its impact if far less than typical seasonal flu. On the other hand, others have argued that a major response is necessary because of the potential of a major epidemic (or pandemic). I have no problem with the extra steps being taken -- with just one minor concern. We cannot, in human resources, take this shift to "maternalism" as a justification for becoming more "maternalistic" in the future. There is no way we will successfully "smother" today's workforce.

Friday, December 04, 2009

HR: Hiring and Retention

With unemployment still at 10% -- with few signs of a rapid recovery, it's easy to overlook some basic facts about hiring and retention in the workplace. From the recent 2009 Employment Dynamics and Growth Expectations Report (cited in a recent "Herman Trend Alert"), comes some facts that should make organizations realize that these times don't necessarily make hiring and retention any easier.

According to the report almost half of managers (47%) reported "a shortage of qualified applicants" as their top hiring challenge with time to fill vacancies averaging 4.5 t0 14.4 weeks. And 55% of employees plan on changing jobs, companies, or careers as soon as the economy improves.

Comment: Hiring right remains a critical issue for organizations -- no matter what the economy says. Human Resources cannot -- and cannot allow managers to -- get lazy just because the number of "applicants" has skyrocketed. The reality of this is that it makes using effective screening and hiring strategies even more important. Increasing the number of applicants, hopefully, increases the number of outstanding candidates -- unfortunately it also increases the number of "wrong" candidates. Now is the time -- it's always the time -- for performance-based hiring strategies. Which can then lead to more effective retention strategies.

HR: Holiday Watch Time

An article appearing on Employee Benefit News (12/4/1009) (www.ebn.benefitnews.com) points out a myriad of potential legal problems that organizations might experience during the holiday season. To just name some of the potential pitfalls mentioned, there are potential dangers related to parties, gift giving, performance, attendance, and more. The "Legal Alert" recommends that it is important to "communicate and reinforce company policies and expectatons about sexual harassment, discrimination, fraternization and other conduct viewed as inappropriate by the company." With simple strategies like an e-mail reminding all employees about appropriate behavior at company-sponsored gatherings, a preventive strategy and a defense against liability is put forth.

Comment: The human resource profession just keeps getting tougher -- with all the possible issues, it notches up even another step during the holidays.

Tuesday, December 01, 2009

HR: Deferred Success

I sure hope this doesn't reach the United States -- I sure hope nobody "brilliantly" thinks this is a good idea for performance appraisals. But on its face, it's funny enough that I had to report it. According to a posting on failblog.org, "The concept of "failure" should be removed from the British education system and be replaced with "deferred success", according to a motion being considered by a teaching union."

Comment: This is just one of those things that gets me thinking about the "unanticipated consequences" (not unintended consequences) and what it might do if it reached the human resource world.

Monday, November 30, 2009

HR: Fake Job Reference Services

It just keeps getting tougher! According to a SHRM (11/20/2009) posting, screening has become even more difficult -- with another twist coming from today's technology "anything's possible" world. A number of websites have appeared -- websites which offer fake work histories and references to job seekers.

Background checking has always been tough -- but it seemingly got easier when information became easier to verify through internet databases. It got a little confusing when organizations decided to start checking information on social networking sites -- raising questions that certainly relate to validity and privacy. And of course, it's always been tough when there are organizations that just have no idea how to conduct a background check.

But the article almost verifies some of the problems by quoting one career "expert" who states that candidates always give references who will only give them good information. Of course this is true -- but if you really know how to conduct reference checks (and it has absolutely nothing to do with verify dates of employment and salary), then this is exactly what you're looking for: details and verifications of a candidates success, not his or her "flaws." Too many selection systems are still designed to find any reason to rule out a candidate instead of being focused on getting the best possible picture of a candidates' accomplishments so that the best candidate can be selected.

Comment: This rise of fake reference and job history services just complicates a situation that HR professionals have at least in part created -- too much focus on the "haves," not enough on the "do's." It is clearly possible to interview effectively; it is clearly possible to conduct serious, effective background checks that would reveal fraudulent information most of the time. The biggest question is always: why aren't we doing it???

HR: Social Networking and Human Resources

According to a posting on SHRM (10/29/2009), the lines continue to blur between bosses and employees because of social networking activity. And according to legal experts, this is going to be -- and become even more so -- a major issue over the next few years, with legal implications that are yet to be known (but could be "anticipated") because it will take years for the courts to catch up with technology.

Posting recommendations on sites like LinkedIn, "friending" bosses or colleagues on Facebook, even if seemingly harmless at first, might have serious legal implications. The article recommends updating policies on performance reviews, harassment, and posting on social networking, or blogging, sites.

Comment: Considering the explosion of technology, particularly the Facebook, LinkedIn, Twitter world, organizations are going to have to keep up with the trends and the need for organizations to develop policies, training, and... And another thing: HR professionals must be familiar with the technologies themselves: simply stated, do you have a Facebook account and do you use it, do you have a Twitter account...?

HR: "Before You Give that Gift"

OK, even though it's the beginning of the holiday season, I knew there would be things that could get me fired up. An article in "Diversity Executive" (11/30/2009) provides some "advice" on gift giving during the holiday season. While some of the advice is sound, it also contains a few things, that for me, just don't connect. Good advice: yes, think about the person you're giving the gift to. I don't give "train" gifts unless they're connected in some other way, i.e., the wrapping or the content of a book or a food gift in a train-themed container. On the other hand, as the receiver of countless gifts over the years, I am not offended in any way by a gift that I personally won't enjoy or... The article says don't give gift cards -- really, they're considered one of the most popular forms of employee recognition -- giving the recipient some control of the gift. But wait, it may be to a restaurant I don't like. So what? I'll take someone who does like -- I'll take my daugher or my sons -- I'll find something on the menu that I'll enjoy! Don't give food -- it may be something that... (fill in any number of blanks here). You're kidding! Surprisingly to some, I'm not a big fan of chocolate -- but I'm not offended or hurt -- or anything but thankful -- for a gift of chocolate. Again, daughter, sons, friends, -- some who love chocolate.

And to top it off, the article says the "old people" may not appreciate an Amazon.com gift certificate because they may not have web access. First of all, they might have grandchildren that will happily help them "on the net." But more importantly, for "Diversity Executive" to include such a biased comment should be embarassing to them. The "older" generation is a lot more internet savvy that some people apparently think...

Comment: I guess I have been hoping that political correctness would not reach this far into gift giving. I always appreciate the thought as much, often more, than the gift itself. But now it looks like we're being advised to the extent of "policies, procedures, and rules" about the types of gifts we give. Personally, I'll just say "thank you."

HR: (M) Employees Lacking Resources

In a video posted on the SHRM website (November, 2009), Ben Schneider, winner of the 2009 Michael R. Losey Human Resource Research Award, says employees often must fight for the basic resources needed to do their jobs well. Check it out if you're a SHRM member!

Comment: Interesting from both a human resource and a management perspective. We expect employees to do their jobs, we expect them to do their best, to be top performers. Yet it appears we ignore one of those basic issues that has clearly been proven to be critical: "Do I have the materials and equipment I need to do my work right?" Why? Why? Why? Why? Why are there so many, continuing examples of high expectations that are not met with clear expectations and the failure to provide resources?

HR: Risk Management

A SHRM posting (10/20/09) states "Get ready for some scrutiny of the culture and strategic decision-making behind your enterprise risk management (ERM) strategy." Beginning in June, 2009, credit ratings of non-financial public companies will include a review of their risk management strategy -- something that has been included for financial institutions.

Comment: The Human Resource role in Risk Management has been expanding at a significant rate for years -- increased scrutiny will place even more importance on the need to understand and be a "credible activist" in these areas of responsibility.

Tuesday, November 24, 2009

HR: Sexual Harassment - WI IHOP Case

A federal jury in Milwaukee has awarded $105,000 to two former employees of a Racine restaurant after a four-day trial over sexual harassment claims.

The jury awarded $104,000 to one teenage female server and $1,000 to another who worked at a Racine, Wis., IHOP restaurant stemming from a lawsuit that began in 2006.

The two say they were sexually harassed by an assistant manager, who allegedly subjected them to sexual propositions, groping and hair-pulling.


The company contends they will appeal because their harassment policy was in place and followed correctly.

Comment: A correct policy, training, and vigilance are essential -- but even that doesn't prevent a jury from ruling in favor of plaintiffs. Bottom line -- companies have to make sure that managers are clearly made aware of their responsibility -- and actions taken firmly against managers who act inappropriately.

HR: Testing for Legal Drugs

Workforce Online (11/24/2009) reports on lawsuits, including one filed by the EEOC, alleging workers rights were violated when they were tested for legally prescribed drugs.

The EEOC contends that Dura Automotive Systems violated the ADA for the testing without having just cause. Allegedly the company also required employess to disclose medical conditions for which they had to take drugs and required them to forego taking their medications as a condition of returning to work. The company includes the right to test for legal drugs in their drug-testing "policy." The company would not comment.

Comment: Huh?? Where is there anything in the world of human resources, where is there anything in SHRM's Body of Knowledge, that even suggests this is a valid, accepted, or intelligent practice?

HR: Culture - Life and Death!

The following is the lead to an article on Chief Learning Officer (November, 2009). The full article is linked in the title above.

Sometimes it takes a series of events so unfathomable for reality to truly hit home.

Just ask France Telecom. Since the beginning of 2008, 24 employees at the company have committed suicide and an additional 13 have attempted suicide. Many of these victims left suicide notes implying the company’s working environment was a key factor in their decisions — one even explicitly cited “overwork, stress, absence of training and the total disorganization in the company.” Some of the attempts occurred on France Telecom premises.

In September, the telecom giant announced the launch of a training program that will teach its 22,000 managers to recognize signs of depression. However, this reactive measure is akin to handing out first-aid kits. It addresses the symptom rather than the root problem: The organization’s culture is quite literally toxic, slowly suffocating its employees.

Culture is a critical and often misunderstood element of business. A “good culture” is one where the values of the organization mirror the values of its employees and leaders, guiding appropriate behavior while strengthening commitment. A “negative culture” is one in which competing values, such as honesty and dishonesty, exist and lead to anxiety, undesired behaviors and an uncomfortable working environment.


Comment: Nothing in this article surprises me. At the same time I continue to be concerned over how much we know today about culture, how it can be objectively measured and monitored with the same precision as an MRI reveals details about a human body, how we can use a detailed analysis to monitor changes and make clearly prescriptive actions.

HR: Grievance over Volunteer Scout UPDATE!

According to a Fox News follow-up (11/23/2009), Nick Balzano, the president of Service Employees International Union's Allentown chapter, who criticized an Eagle Scout's volunteer actions, has resigned.

A spokesman for the union again criticized the comments about filing a grievance (see earlier posting below) as "completely unauthorized and insensitive" and that the union was "not at all" considering a grievance in the case. To add more to the story, an additional "four or five" other employees of the union resigned.

Comment: There's more to this story -- I'm sure of it. First of all, as the president of the union, Balzano's statements about filing a grievance would directly counter the argument now that they were "completely unauthorized." Completely insensitive -- clearly, but wouldn't his position have given him the authority to make that statement. Second, "four or five" other people resign? I'm wondering... And third, and this may surprise a few, I'm not always a big fan of immediately terminating (or having a resignation) -- just for being "stupid." I know that the political fall out from this is huge - so maybe the resignation is unavoidable. But again, there's more to the story, I'm sure.

Monday, November 23, 2009

HR: Woman Loses Benefits over Facebook Photos

According to an AP story (11/22/2009) that's appearing on Yahoo, Fox News... a Canadian woman on long-term sick leave lost her benefits because of, she says, photos on her Facebook page.

The woman has been diagnosed with major depression and receiving monthly sick-leave benefits from her employer's health plan. When the payment stopped, she was told she was "available for work." She says it was because of photos posted on Facebook, including pictures showing her having a good time at a Chippendale's bar show, at her birthday party, and on a sun holiday.

The company has said that they would "not deny or terminate a claim solely based on information published on websites such as Facebook."

Comment: The impact of social networking continues to reach into the day-to-day world of HR decisions. Interesting times!