No On-Ramp to Retirement

In a troubling bit of news for anyone who plans on stopping work someday: more than 40 percent of full-time private-sector employees in the United States say they lack access to either a pension or an employer-based retirement savings plan such as a 401(k), according to a new study by The Pew Charitable Trust.

According to the report, the data show that even within the same state, retirement plan access can vary widely:

“For example, in South Carolina, 50 percent of workers in Charleston reported having access to a retirement plan—18 points lower than the 68 percent in Columbia. This variation probably comes from the mix of industry and worker characteristics in each urban area.”

Some of the metropolitan areas with relatively high retirement plan access rates also face broad economic challenges, factors that are likely tied to the industries prominent there and their financial circumstances. For example, over 70 percent of workers in Scranton report having access to a workplace retirement plan, but the area also has higher unemployment and lower average wages than the United States as a whole.

Other key findings of the report include:

•• Retirement plan access varies more among the nation’s metropolitan areas than across states as a whole. The access rate among workers in the metropolitan areas ranges from 71 percent in Grand Rapids, Michigan, to 23 percent in McAllen, Texas. Nationwide, 58 percent have access to a plan.

•• Metropolitan areas with low access rates are heavily concentrated in certain large states. Nearly three-fourths of the metropolitan areas  in the bottom 25 percent are in Florida, Texas or California.

•• Employer and worker characteristics appear to play a large part in the disparate levels of access. For example, metropolitan areas with relatively low rates of access generally have more people working for small employers.

Many areas with higher percentages of Hispanic or low-income workers also tend to have lower access rates.

Methodology: The figures come from a pooled version of the 2010-14 Minnesota Population Center’s Integrated Public Use Microdata Series Current Population Survey (CPS), Annual Social and Economic Supplement.

Unless otherwise noted, “worker” means a full-time, full-year, private sector wage and salary worker age 18 to 64. The term “metropolitan area” refers to a metropolitan statistical area, as defined by the federal Office of Management and Budget.

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The Power of Vulnerability

Many HR leaders — along with leaders of every stripe — tend to view vulnerability as a weakness, and strive to “engineer it out” of their organizations. This is a mistake, according to author, consultant and University of Houston research professor Brené Brown, who delivered a keynote address at the Indeed Interactive conference in Austin, Tex. today on “Vulnerability and Workplace Transformation.”

Far from being a weakness, vulnerability can be a source of strength, power and innovation if people understand how to use it properly, said Brown, who’s spent the past 13 years of her career studying vulnerability, shame, courage and worthiness. Leaders who have an honest understanding of their own vulnerability, and who are comfortable displaying it during critical moments, are better equipped to lead and inspire other employees, she said.

Brown, whose TED Talk on The Power of Vulnerability in 2010 became the fifth most-viewed TED Talk ever, cited her own experience in the wake of the talk’s popularity as instructive. Although it garnered more than 25 million views, the video also attracted some nasty comments from online viewers denigrating Brown’s appearance.  The anonymous comments included suggestions that Brown get Botox injections for her wrinkles and “If I looked like that, I’d feel vulnerable, too.”

Feeling traumatized, Brown compensated by “binge-watching Downton Abbey and eating lots of peanut butter.” But while watching the iconic British drama, she researched who was U.S. president at the time, and came across a speech excerpt by Teddy Roosevelt that inspired her:

It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly;  …  who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat. 

Roosevelt’s words not only helped Brown put the comments in perspective, but inspired the title of her 2012 book, Daring Greatly: How the Courage to Be Vulnerable Transforms the Way We Live, Love, Parent and Lead.

“If you’re not in the arena, being brave and getting your ass kicked, then I have no interest in your feedback,” she said. “The world is filled with cheap seats, with people who hide behind anonymous comments and never get in the arena.”

Feeling vulnerable often leads people to try and compensate in ways that aren’t always helpful and, in some cases, damaging. She cited a brief disagreement with her husband that could’ve turned ugly had she not applied her own lessons in being aware of and mastering one’s vulnerability.

“Emotions drive our responses to tough things,” said Brown. “We tell ourselves stories about things that are happening and we get a reward from our brain that makes us feel better, even if the story isn’t accurate.”

However, vulnerability is not only the source of shame, fear and anxiety but also of love, belonging and joy, she said. It’s also the source of courage, empathy, trust, innovation, creativity, accountability and adoptability.

“If you foster a culture in your organization that doesn’t allow for vulnerability, then do not expect people to take risks and innovate,” said Brown. “If you don’t understand vulnerability, you cannot manage and lead people.”

Of course, leaders can’t display vulnerability in every situation, she said, citing the CEO of a start-up who told her he’d decided to share his vulnerability by going public with his feelings of being in over his head and having no idea what he was doing. “People who invested money in your company obviously aren’t going to want to hear that,” said Brown. “But if people sense that you’ll reach out for help when you need it, rather than not saying anything and continuing to plug along, that’s OK.”

The ability to be honest about what you don’t know or are uncertain of is a strength, not a weakness, said Brown.

“To be alive is to be vulnerable,” she said. “To be a leader is to be vulnerable every moment of every day.”

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EEOC Spotlights Diversity in Tech

A unusual forum held in the nation’s capital last week signals growing regulatory interest in the technology industry’s hiring and promotion practices.

ThinkstockPhotos-524374920The Equal Employment Opportunity Commission held the May 18 meeting about diversity in the industry as it released a report confirming what everyone already knows: tech is mostly white, male and young.

Does the hearing suggest the EEOC may soon come down on tech employers with formal guidance or even enforcement action? Labor lawyers say no — at least for now.

“I think the EEOC’s goal is to keep the issue in the spotlight,” says Erin M. Connell, a partner and employment lawyer at Orrick, Herrington & Sutcliffe in San Francisco who testified at the forum.

The effort continues a campaign by civil rights leader Rev. Jesse Jackson to pressure tech companies to become more diverse — and transparent — in employment, she notes.

Industry leaders “are hitting this at all levels,” says Connell, who counts many technology companies as clients. “They want to improve their numbers — because of the public pressure, because of the moral imperative … and because there’s a business case for diversity.”

Research has shown that “companies with higher diversity have better business results,” Connell says. This is particularly true when they serve — as tech companies do — a diverse population of customers.

The EEOC report looked at diversity data for the industry nationally as well as in Silicon Valley. It finds that whites account for 69 percent of the U.S. tech workforce, compared to 63 percent in all private employment. Among executives and managers in tech, 83 percent are white.

All employees Executives and managers
Tech All industries Tech All industries
White 69% 63% 83% 87%
Asian 14% 6% 11% 5%
Hispanic 8% 14% 3% 4%
Black 7% 14% 2% 3%
Other 2% 3% 1% 1%
Men 64% 52% 80% 71%
Women 36% 48% 20% 29%
Source: EEOC

Asian Americans also are overrepresented, compared to their share of all private employment. About 14 percent of tech employees, and 11 percent of tech managers and executives, are Asian American. That compares to 6 percent of workers across all industries.

Hispanic and black workers are, as a result, underrepresented in tech, often dramatically. And so are women: They account for 36 percent of all tech workers and 20 percent of executives and managers in tech, compared to nearly half of all jobs in private industry.

Though the report did not break down workers by age, another panelist at last week’s forum offered a scorching appraisal of the role age bias plays in the industry.

“Job postings declaring a preference for new or recent graduates are common, and some companies have actually specified which graduating class they are seeking,” said Laurie McCann, a senior attorney with the AARP Foundation, according to an EEOC news release.

Panelists didn’t necessarily agree about the best strategy for the industry to diversify. Some who testified put an emphasis on reform of industry hiring and funding practices. A cloistered world of CEOs and venture capitalists who look and think like each other perpetuates the problem, some argued. Greater emphasis on techniques to minimize unconscious hiring bias could help, they said.

Connell and others argued that improved educational opportunities are key, including industry-sponsored tech boot camps for girls and minority youth. Closing the gap in employment requires enlarging the pipeline of young people interested in the industry, she says.

In any case, Connell says she sees no sign that the EEOC plans to do more than nudge the industry to improve.

“It’s never off the table — I don’t want to give any false comfort there,” Connell says. But “I did not get the sense that any enforcement mechanisms are on the horizon.”

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Workers in the West Like Bosses Best

When it comes to finding someone to blame for issues like, say, sagging retention rates or sinking employee engagement scores, managers sure seem to take it on the chin a lot.

Kristen Frasch, our managing editor, pointed out as much on Monday, using the HRE Daily space to reference just a few fairly recent reports that underscore managers’ supposed shortcomings.

The bulk of Frasch’s post, however, focused on Red Branch Media CEO Maren Hogen’s recent “love letter” to managers, in which she offers an “ ‘atta boy’ and ‘atta girl’ to those blamed for everything from a lack of snacks in the workplace to why you can’t have ‘just one extra week off,’ ” and encourages disgruntled employees to also look at themselves when trying to pinpoint the source of their unhappiness.

Now, just days later comes a survey from CareerBuilder that should give managers—more than half of them, anyway—another reason to feel good about themselves.

The Chicago-based employment website and HR software provider polled 3,031 employees, asking respondents to rate their supervisors’ performance, assigning them a letter grade between “A” and “F.”

Overall, 62 percent of employees graded their bosses’ performance as either an “A” or “B,” with 22 percent giving their manager a “C.” Ten percent said their supervisor merited only a “D,” with the remaining 6 percent reporting their superiors had failed, earning an “F” for their efforts.

Pretty solid scores for most managers, but those in the Western region of the United States seem to be doing something particularly special.

On average, Western-based bosses were graded higher, with 32 percent of respondents giving their supervisors an “A” grade, and 35 percent saying their manager deserved a “B.” Workers in the Northeast were a tad more critical, with just 23 percent handing out “A”s to their bosses, and 34 percent reporting their managers were worthy of a “B.”

What’s the secret to supervisors’ success out West? The answer may lie in a laid-back managerial approach that employees seem to respond to in a big way.

For example, 30 percent of workers in the West said they interact with their boss once a week, or less, in person. More than one-quarter of employees in the South (27 percent) said the same, as did 24 percent of respondents from the Northeast and 23 percent of workers in the Midwest.

Less face time doesn’t necessarily equate to less feedback, though. In fact, 69 percent of employees in the West said they feel their bosses provide enough guidance and input, while 59 percent of workers in the Northeast feel their managers offer sufficient support.

In a statement, Rosemary Haefner, CareerBuilder CHRO, reckons that “we’re starting to see a slight shift of favor toward management styles that are seen as a little more hands-off, which employees view as trust from their bosses.”

Naturally, there’s a point where a manager can become a little too detached. The key, of course, is finding the sweet spot between aloof and overbearing, which many managers—especially those in the Western states—have apparently recognized.

“Everyone craves respect,” says Haefner, “and it seems like bosses in certain regions have figured out the perfect balance to keep subordinates happy.”

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Supreme Court Backs Workers

The U.S. Supreme Court ruled 7-1 yesterday  in the case of Green v. Brennan that the statute of limitations for Title VII constructive discharge claim begins on the date of the employee’s notice of resignation, not on the date of the last alleged discriminatory act by the employer.

According to Fisher Phillips’ Melody Rayl,  the court’s decision is a “bad one” for employers and will likely lead to an uptick in legal claims filed by disgruntled former workers.

“The question that confronted the Supreme Court is important because it goes directly to whether such constructive discharge claims are filed in a timely manner,” Rayl writes. “Prior to filing suit for discrimination under Title VII, employees must first file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days ‘after the alleged unlawful employment practice’ occurred, although the time is extended to as much as 300 days if the claim is also filed with a state or local agency authorized to investigate such claims.”

Further, Rayl writes, the Supreme Court’s decision now opens the door for former employees to file constructive discharge claims long after the alleged discriminatory conduct occurred by simply delaying their resignation indefinitely.

Now may be a good time for some legal background, courtesy of Rayl:

What Is A “Constructive Discharge?”
In a claim for constructive discharge, a former employee accuses the employer of engaging in discriminatory or retaliatory conduct that makes the working conditions so intolerable that any reasonable person in the shoes of that employee would feel they have no choice but to quit. In other words, a constructive discharge means a worker is forced off the job by the employer.

The concept of constructive discharge is a sort of legal fiction, allowing workers who claim to have been subjected to particularly egregious workplace treatment, but who have not been fired, to nonetheless resign from the offensive work environment and preserve their right to seek damages in the form of lost wages and benefits.

While the ruling is plainly a win for employees on this front, Rayl notes there was one area of the ruling in which employers can take solace:

In the smallest of victories for employers, the Court did acknowledge the limitations period should begin to run when the employee gives notice of resignation rather than on the date the resignation becomes effective.

With respect to Green, the Court found the facts were not sufficiently developed to pinpoint precisely when his notice of resignation occurred. Thus, the Court remanded the case back to the Tenth Circuit to determine, as a factual matter, whether he gave notice of his resignation on the date he signed the settlement agreement or nearly two months later when he submitted his retirement paperwork.

All things considered, that’s a small victory for employers indeed.

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A ‘Love Letter to [all the Bad-Rapped] Managers’

Who hasn’t heard and read the reports in the last few years on the real reason employees leave their employers? Bad managers, right? 522472388 -- managerNo doubt anyone visiting this site has seen and heard them.

We’ve certainly written our fair share, from criticizing managers’ reluctance or inability to truly promote career development to pinpointing the need for managers to grow their big-data skills to lamenting the unhappiness and decimation of the middle-management ranks in general, which of course supports the theory that unhappy managers make for bad bosses.

Which might be precisely why this recent post by Maren Hogan on the HR Examiner site, My Love Letter to Managerscaught my eye, an eye that’s always on the lookout for something counterintuitive (warning, she doesn’t hold back on some of her descriptors). That or the fact that I am a manager, so a love letter to me … well … what’s not to like?

Counterintuitive does seem to be the operative word here, when you consider all that’s been said about retention and turnover, and the especially egregious part managers play. As Hogan puts it,

“Retention issues? It’s the manager’s fault.
Productivity problems? Blame the manager.
Engagement dipping? Someone get management in here!

Can this really be true? After all, many of these problems have roots in giant, macro issues. The economy, changing workforce dynamics, an always-on mentality spurred on by technology advances. It’s sort of simplistic to blame the manager, isn’t it?”

I especially like what she says about this mega-trend, if you will, of citing management as the reason people leave work, hate work, aren’t engaged and aren’t productive. She thinks this trend “could be part of a blame culture that has slowly seeped into our workforce over the past couple of decades.” In her words,

“Whether we’re blaming millennials for the faster pace and fancy [results-only-work-environment] perks, or blaming executives for the glaring inequality between them and us, or blaming managers for every issue in the workforce, very few seem to be stepping up to take personal accountability.”

She’s got some helpful suggestions for employees who might be prone to disparaging their managers, such as considering how they, themselves, might change the situation before blaming their direct supervisor; doing better and faster work if they don’t like what’s been assigned to them so they can prove they’re capable of taking on something more interesting; taking self-assessments of their most-productive times during the workday and building their reputations as team players; and even getting better at confronting difficult and destructive employees themselves, so managers aren’t blamed for failing to take action.

So why am I sharing this with you? Well, first, I kind of agree with Hogan that managers have taken a bad rap for far too long for the ills of corporate culture.  More importantly, though, I believe employers and their HR leaders could go a long way toward curing some of those ills by paying more attention to the workloads and expectations placed on their managers.

They might also consider committing serious capital to training all employees in personal accountability, starting with Hogan’s list above.

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NLRB May Raise Bar For Employers to Oust Unions

Companies seeking to oust a union that’s no longer supported by most workers could soon face a new obstacle.

Currently an employer may stop dealing with a union when a contract comes up for renewal. Management just needs objective evidence – typically a petition – that a majority of workers no longer support it. But the NLRB’s top lawyer wants to raise the bar companies must cross to withdraw recognition.

In a May 9 memo, National Labor Relations Board general counsel Richard F. Griffin Jr. instructs the agency’s regional directors to raise a new argument when companies unilaterally withdraw union recognition. He believes employers should first seek a formal decertification election — and continue to deal with the union until winning the ballot battle.

In the memo, GBallot-boxriffin contends this would be better for companies by eliminating uncertainty and lessening delay and litigation.

The current board law “has created peril for employers in determining whether there has been an actual loss of majority support for the incumbent union, has resulted in years of litigation over difficult evidentiary issues, and in a number of cases has delayed employees’ ability to effectuate their choice as to representation.”

The new standard, he contends, “will benefit employers, employees, and unions alike by fairly and efficiently determining whether a majority representative has lost majority support.”

But management-side labor lawyers generally see this as a move to strengthen the hand of unions by forcing companies to continue bargaining with a union that may no longer have much support.

And the NLRB could go along with Griffin, says one expert.

As long as three of the five board members are Obama appointees, “I think there is probably a good chance … the board would be receptive to the general counsel’s argument here,” said labor attorney Steven M. Swirsky, a member of the firm at Epstein Becker & Green in New York.

The current practice was set by the board 15 years ago in a case involving Levitz Furniture Co. Now Griffin is instructing regional offices to disregard that standard and issue unfair-labor-practice complaints in future cases where employers unilaterally withdraw recognition and unions file charges, Swirsky says. That would eventually bring his argument for raising the standard in front of the board for a ruling.

Over the last 10 years, employers have won 70 percent of employer-requested decertification elections, NLRB records show. But requiring those elections often will mean a lengthy series of labor complaints and appeals by the union – even if few workers support it – before companies can withdraw recognition, Swirsky says. And while that’s dragging on, a company is stuck.

“You freeze the status quo in many respects,” he says. “That can be harmful for employees, too.”

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Supreme Court Deals a Blow to the EEOC

The upshot of today’s U.S. Supreme Court unanimous ruling in favor of a trucking company in CRST Van Expedited Inc. v. EEOC is that a company can still be considered the prevailing party in a court case — and thus be eligible for reimbursement of its legal fees by the other party — even if it doesn’t win a favorable judgment on the merits of its argument.

CRST, a trucking company, had been awarded a record $4.7 million in legal fees against the Equal Employment Opportunity Commission by a trial court after a class action brought against the company by the EEOC on behalf of 154 female drivers was found to have been without merit. The EEOC’s suit had alleged that CRST allowed “severe and pervasive” sexual harassment against female drivers in its driver-training program. The case was later dismissed by the court because it found that the EEOC had failed to show a pattern or practice of discrimination, nor did it fully investigate the claims, find reasonable cause and attempt reconciliation prior to filing suit.

However, the 8th Circuit Court of Appeals vacated the $4.7 million award because the claims were dismissed without ruling on their merit and thus CRST was ineligible per Title VII of the 1964 Civil Rights Act, which grants attorney fee awards to “prevailing” defendants who can show the EEOC’s position was “unreasonable or frivolous.”

Writing for the court, Justice Anthony Kennedy said there was no indication that Congress had intended “that defendants should be eligible to recover attorney’s fees only when courts dispose of claims on their merits.”

“It would make little sense if Congress’ policy of ‘sparing defendants from the cost of frivolous litigation’ depended on the distinction between merits-based and non-merits-based frivolity.”

The ruling sends the case back to the lower court for further review.

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The Cost of Not Accommodating Caregivers

Some employers “still aren’t getting it when it comes to discriminating against employees with family responsibilities.”

So says Joan C. Williams, founding director of the Center for WorkLife Law at the University of California, Hastings College of the Law, in a recent statement highlighting findings from a new UC Hastings study.

And, judging by some of the statistics found in said study, it’s hard to argue that she has a point.

The report, Caregivers in the Workplace: Family Responsibilities Discrimination Litigation Update 2016, analyzed 4,400 family responsibilities discrimination cases that were filed in the United States between the years 2006 and 2015.  Report author Cynthia Thomas Calver looked at employees’ claims alleging discrimination based on their status as a pregnant woman, mother, father, or a caregiver for a sick or disabled family member or an aging or ill parent, and found a 269 percent increase in the number of such cases filed in that 10-year span, compared to the prior decade.

While you’re digesting that number, chew on these facts and figures to emerge from the UC Hastings report:

  • Claims for FRD have been filed in every U.S. state.
  • Cases involving eldercare have increased 650 percent in the last 10 years.
  • Pregnancy accommodation cases have gone up by 315 percent.
  • Though the number of claims remains small, suits in which an employer is alleged to have denied accommodations or discriminated against an employee because she was breastfeeding or needed to express milk during the workday has risen by 800 percent.
  • Male employees have brought 55 percent of spousal care cases, 39 percent of eldercare cases, 38 percent of FMLA cases and 28 percent of childcare cases.
  • A clear majority of employees are succeeding with family responsibilities discrimination suits, with workers winning 67 percent of the FRD claims that went to trial from ’06 to ’15.

Naturally, these claims are hitting American employers pretty hard in the wallet. FRD litigation cost U.S. companies $477 million over the past decade (compared to roughly $197 million from 1996 to 2005), according to the WorkLife Law report, which suggests that the actual amount is “likely to be significantly higher, as many settlements are confidential.” These figures “also fail to capture the ripple effects of discrimination, including employee attrition and related replacement costs, damage to the company’s public reputation and reductions in the morale and productivity of all employees.”

The report also lays out some steps for preventing family responsibilities discrimination within the organization, such as providing supervisor training, adopting anti-discrimination policies that include family responsibilities, activating HR-run oversight programs and ensuring that the company’s procedures for responding to employee complaints address FRD.

In the aforementioned statement, Calvert, a senior advisor to the Center for WorkLife Law, stresses the importance of adapting to America’s evolving workforce and families, and the cost of failing to do so.

“Until employers adjust to the realities of families with all adults in the paid workforce and a significant growth in the number of older Americans who need assistance from their adult working children, it’s unlikely we’ll see a decrease in the number of cases filed.”

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Getting Caught in the Drug Screen

There’s an interesting new story in the New York Times today about how employers are struggling to find a key demographic of the workforce: those who are able to pass a drug test.

From the NYT story:

All over the country, employers say they see a disturbing downside of tighter labor markets as they try to rebuild from the worst recession since the Depression: They are struggling to find workers who can pass a pre-employment drug test.

The hurdle, according to the story, “partly stems from the growing ubiquity of drug testing, at corporations with big human resources departments, in industries like trucking where testing is mandated by federal law for safety reasons, and increasingly at smaller companies.”

Data suggest employers’ difficulties “also reflect an increase in the use of drugs, especially marijuana — employers’ main gripe — and also heroin and other opioid drugs much in the news.”

Indeed, Quest Diagnostics, a national drug-testing service, documented an increase for a second consecutive year in the percentage of Americans who tested positive for illicit drugs — to 4.7 percent in 2014 from 4.3 percent in 2013. And 2013 was the first year in a decade to show an increase, the story notes.

But data on the scope of the problem is “sketchy,” the NYT notes, “because figures on job applicants who test positive for drugs miss the many people who simply skip tests they cannot pass.”

The story gets at an interesting question, but one that doesn’t necessarily get enough attention these days, likely due to all the other debates raging in the workplace: When does drug testing become more onerous than advantageous for an organization?

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