Articles from October 2012

As you already know, Hurricane Sandy has taken a huge toll on property and lives the past couple of days. At least 48 people have died; and some estimate the storm could cost as much as $20 billion.

But would the impact on employers be somewhat less were they more open to virtual work and greater workplace flexibility?

A post earlier today on the Businessweek.com, titled “Sandy Puts Mobile Workers to the Test,” suggests the answer is very likely yes.

To be sure, there’s no easy remedy for the loss of power, wherever you are. (Almost on cue, my lights at home flicker on and off as I write these words.)  Sure, cell phones are a great back up, until the batteries run dry.  But as the BW article suggests, employers with more flexible work arrangements would find themselves in a distinctly better position to ride out storms like Sandy.

As the writer points out …

The least-scathed employers, in many cases, are global companies with contingency plans and cloud-based systems that let employees access data from anywhere. The most vulnerable: those that try to keep their workers and IT systems in the office. For some companies, Sandy could prove to be a powerful catalyst in creating truly flexible workers. For others, it’s highlighted the flexibility they already have.

Time will tell if Sandy turns out to be such a “catalyst.” A “powerful” one?  Doubtful. But in considering the destruction and disruption she’s left in her aftermath, I have to think a few employers are going to find time to give such work arrangements a closer look.

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The folks at Fisher & Phillips (Atlanta-based employment law firm) sent me this link to a pretty formidable write-up by D. Albert Brannen (a partner there), spelling out just how much you need to keep in mind now under the more aggressive National Labor Relations Board.

“Under President Obama,” he writes, “the NLRB has been very aggressive in further expanding employee rights to engage in [protected concerted activity through its] rulings or official guidelines with regard to social media, employment-at-will and off-duty access policies. [Of those], no other policy area has received more attention by the NLRB than social media.”

What really impressed me were Brannen’s lists of rules or policies now deemed unlawful and lawful, based on the last of the NLRB General Counsel’s guidelines on social media, issued May 30. He lists 23 — repeat, 23 – under the unlawful category. Here’s just a sampling:

• Employees should not release confidential guest, team member or company information.
• Employees should not share confidential information with coworkers unless they need the information to do their job.
• Employees should not have discussions regarding confidential information in the break room, at home, or in open public places.
• Employees should not “reveal non-public company information on any public sites.”
• Employees should not post photos, music, videos and personal information of others without obtaining the owner’s permission and must ensure that the content can be legally shared.
• Employees should not use the employer’s logos and trademarks for non-commercial purposes.

There are 13 social-media policies or rules declared lawful. Again, just a sampling:

• Employees should not post “any opinion or statement as the policy or view of the employer or any individual in that capacity as an employer otherwise on behalf of the employer.”
• Employees should not post “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.”
• Develop a healthy suspicion. Don’t let anyone trick you into disclosing confidential information. Be suspicious if asked to ignore identification procedures.
• Employees should not discuss information related to the “safety performance of the employer’s systems or components or vehicles” and “secret, confidential or attorney-client privileged information.”

I’d memorize these if I were you.

For the record, here’s my latest blog post on the NLRB’s first social-media ruling (against Costco), which contains links to the rules and guidelines — and purposes behind them — issued thus far by NLRB’s Acting General Counsel Lafe Solomon pertaining to social media in the workplace and social-media policies. For a full explanation from the NLRB as to all of its guidances and rules, start on its home page and search or drill down to what you’re after.

Also, for the record, Brannen includes helpful advice about employment-at-will and off-duty access policies as well.

As he cautions in his conclusion:

By its nature, the NLRB is prone to what experts call ‘policy oscillations’ where its interpretations of the law may change with the political party in power at any given time. To some degree, these fluctuations can be expected. However, the current NLRB seems to have taken a dramatic turn in the expansive way it views employee rights. Employers should be aware of these recent developments and should review their work rules and policies to make sure that they still comply with the law as viewed by the current NLRB. Specifically, employers should revise their social-media, employment-at-will and no-access polices as soon as possible.

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Kudos to IBM Senior Vice President of HR Randy MacDonald, who yet again was recognized for his extraordinary contribution to the profession.

As some of you may recall, MacDonald was selected HRE’s 2008 HR Executive of the Year. So when we see another entity or group, in this case Fred Foulkes’ Human Resources Policy Institute at the Boston University School of Management, acknowledge the exceptional work of one of our past honorees, we consider it just further confirmation that we made a great choice back then. (Not that we had the least bit of doubt.)

To receive the HRPI honor, award recipients must meet the following criteria:

• Overall leadership and measurable impact for innovative and lasting contributions at work and in the human resources field,
• Service to the HR community and participation in human resource-related groups/associations, social service, educational or civic organizations, and influence on the development of public policy, and
• Strong character and integrity.

Perhaps not coincidentally, this latest honor bestowed on MacDonald (a Distinguished Fellow of the National Academy of HR as well) is named the W.E. Burdick Award, after Walt Burdick, a legendary HR leader in his own right during his tenure at IBM. Burdick headed the function there at the time of this magazine’s founding 25 years ago.

So I guess you could say MacDonald was an natural choice for this first-ever W.E. Burdick Award in a number of ways.

Pictured above, left to right: Fred K. Foulkes, professor of organizational behavior at Boston University School of Management and director of HRPI; Randy MacDonald;  and Kenneth W. Freeman, Dean of Boston University School of Management.

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I had the pleasure of spending Tuesday at the New York Athletic Club. No, I didn’t get to try out the racquetball courts, exercise equipment, billiards room, sauna or the sun deck that sits atop the beautiful 24-floor facility. Rather, I made the 90-minute train ride from Philadelphia to attend the 2012 Human Capital Leadership Forum being held at the historic venue.

Throughout the day, the 240 HR professionals, consultants and vendors on hand took in a variety of panel discussions and presentations that delved into the transforming role of today’s HR leader, how HR executives can incorporate business analytics and business intelligence into their day-to-day functions, identify and develop future leaders, align the organization’s workforce with future business goals and more.

A presentation of particular interest to me was delivered by Caroline Stockdale, senior vice president of human resources with Medtronic Inc., a Minneapolis-based developer and manufacturer of medical device technology and therapies. In the early afternoon session, “Innovating to Transform the Employee Experience and Accelerate Growth,” Stockdale shared “some highlights of the HR journey” she’s embarked on since joining the organization in 2010.

In that time, Stockdale has been at the center of an effort to build an innovative HR department, where “bold new ideas and approaches to traditional HR processes and systems are not only encouraged, but expected,” she said.

One of the brash ideas her HR organization has implemented is the abolishment of the organization’s old rating-based performance management system, she said.

In the past, for example, annual performance reviews were administered to Medtronic employees in each business unit, each of whom was rated on a 1-to-5 scale. The problem with such a system, however, is that “all teams are not created equal,” she says. Thus, using the same scale to rate individuals across functions is at least somewhat flawed and unfair.

For instance, a high performer on a low-performing team may earn a ‘5’ based on individual performance in comparison to their peers, while a worker in a more critical, higher-performing unit may ultimately bring more to the organization overall, but only receives a ’3′. Or, for those who favor sports analogies, think of it somewhat like trying to accurately measure the worth of a “good” baseball player in the big leagues against that of a player considered a “superstar” at the minor-league level.

Ultimately, Medtronic has moved away from competitive assessments toward providing performance feedback, coaching and development to employees on a more regular basis, as opposed to the more “traditional” annual review process.

At lunch that afternoon, I asked the gentleman seated next to me – a senior vice president of HR at a large asset management company – what he thought of Stockdale’s talk. As we tucked into our tortellini, he mentioned that his firm’s leadership had “been kicking around the idea” of scrapping its current performance management system — which he described as being similar to Medtronic’s old method – and adopting a simpler approach that involves managers offering more frequent input to employees regarding their performance, and sets realistic goals that are more directly tied to business results.

He was quick to note, though, that his organization is still grappling with just how it plans to implement a new and improved performance management system.

Sound familiar?

It probably does, if you read our July/August 2012 cover story, “There’s Got to Be a Better Way.” In that feature, Senior Editor Andy McIlvaine discussed the “needless complexity” of performance management at many organizations.

“Experts … agree that performance management – as it exists today in too many organizations – is broken,” he wrote. “Fixing it … involves going back to the basics: setting business-linked goals that are challenging yet achievable, teaching managers how to give feedback that is helpful and not demeaning, and supporting it all with a process that is intuitive rather than complicated. None of this, [experts] admit, will necessarily be easy to implement.”

True enough. But judging from the Leadership Forum audience’s enthusiastic response to Stockdale’s story of HR innovation in the performance management arena, there seems to be plenty of HR leaders with a keen interest in taking on the challenge.

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Goldman Sach’s office tower looms over the Hudson River.

When former Goldman Sachs trader Greg Smith penned a bitter farewell to his employer last March that was published in the New York Times, it left quite an impression. In his essay, Smith decried what he said was a “toxic” culture at Goldman, one in which bankers referred to clients as “muppets” and profit-making routinely came at the expense of ethics. Yesterday marked the official release of Smith’s new book, Why I Left Goldman Sachs: A Wall Street Story, an account of his years at the huge investment bank and what he believes is the decline in its corporate culture.

Now, Goldman Sachs is firing back, and leading the charge is Edith Cooper, the bank’s global head of human capital management. Yesterday Cooper was interviewed on Bloomberg TV and said of Smith’s new book: “Nothing that Greg suggested rang true to me … I believe our culture is stronger than it’s ever been.”

“As we looked into [Greg's] claims, I was very pleased to see there wasn’t merit,” Cooper told Bloomberg TV. “My biggest disappointment is that [he] didn’t come forward and speak to us.”

Last year, Cooper was ranked No. 25 in Crain’s New York Business list of the “50 Most Powerful Women in New York.” The profile noted that she was one of only four women on Goldman’s 32-member management committee. Cooper joined Goldman in 1996 to grow its energy sales group, became a managing director in 1998, made partner in 2000 and became global HR chief in 2008.

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Came across an interesting just-launched website devoted solely to providing employers and their HR teams with, as the site says, “expert, creative, and cost-effective solutions for managing the burgeoning risk of workplace EEO disputes.”

A bit too focused, you might ask? Au contraire, says Merrily Archer, an employment attorney and founder of Denver-based EEO Legal Solutions and it’s brand new site. Here’ how she describes “the gathering EEO storm” on her home page:

The number of EEOC charges will hit 100,000 in 2012, with increasing prevalence of age, disability, retaliation and systemic (‘disparate impact’) charges. In-house counsel now report that employment matters, both administrative activity and litigation, rank first in amount and frequency. No doubt, the ‘face’ and frequency of discrimination has changed markedly since the Civil Rights Act of 1991, ranging from pro se individual charges to full-blown EEOC systemic investigations and class-action litigation. Given the variable risk inherent in EEOC charges and EEO litigation, employers must master claim avoidance, evaluation, and resource allocation to avoid defraying expensive external ‘solutions’ to comparatively minor EEO problems.

Archer, a former attorney with the U.S. Equal Employment Opportunity Commission, know’s from whence she speaks. She’s been a key and outspoken source for HRE on the EEOC’s aggressive systemic push of late, in this piece, this one, and this, to share just three. She also contributed this byline for us on how to fight back against the push.

Her new site, she says, offers employers’ existing HR and legal teams coaching and training ”to reduce reliance on outside counsel and by extension, expensive ‘solutions’ to more minor EEO problems. Through lean litigation, EEO Legal Solutions proves that employers can still afford to fight when they’re right.”

For your frame of reference, and an understanding of what the EEOC is after, here is the agency’s selected list of systemic hiring resolutions and filings as of April and a full rundown of the systemic focus when it was initially proposed years ago.

I especially like Archer’s blog post on her site itemizing the reasons “Our Workplaces Don’t Work”:

Since the passage of the Civil Rights Act of 1991, our workplaces have become ‘overlawyered’ regulatory quagmires in which employers balance competing laws and risks on a daily basis: the risk of a negligent hiring/entrustment/supervision claim versus the risk of an EEOC systemic investigation over use of pertinent criminal background information; the risk of retaining an underperforming employee versus the risk of an EEOC charge; the risk of workers’ compensation claims against the risks of claims under the Americans with Disabilities Act, as amended, and the absurdly complicated Family and Medical Leave Act; the risk of financial collapse versus the risk of individual and systemic EEO claims arising from a necessary reduction-in-force; the risk of going out of business versus the risk that the EEOC will impose its judgment regarding what constitutes ‘successful’ job performance … and on it goes … employers have become stuck in this ‘damned-if-you-do-damned-if-you-don’t’ EEO regulatory maelstrom, sacrificing basic management considerations of employee accountability, reliability and even competency.

William Tate, president of Chicago-based HR Plus screening solutions, talked about that first risk when he and I met at the Society for Human Resource Management conference this past June. He likened the EEOC’s background-screening mandate to a kind of “Sophie’s Choice” for his clients between following the new rules and keeping their workplaces safe.

The cost alone of retraining recruiters to conduct and document individual reviews for each former convict, he told me, threatens many (especially smaller and mid-sized) employers’ survivals.

And he didn’t even mention the legal costs Archer says she aims to spare employers.

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According to an Illinois district court judge, what an employee does in Vegas … may qualify as FMLA leave.

An employer’s motion for summary judgment was denied in the case of Ballard v. Chicago Park District, which found plaintiff Beverly Ballard claiming her former employer denied her FMLA rights by declining to approve a trip to Las Vegas with her terminally ill mother.

The details …

In early 2006, Sarah Ballard—Beverly’s mother—was diagnosed with end-stage congestive heart failure. In December 2007, Sarah was granted a trip to Las Vegas by the Fairygodmother Foundation, a charitable organization that grants “wishes” to individuals with terminal illnesses. As her primary caregiver, Beverly was to accompany her mother on the excursion.

She claims to have approached supervisor Eric Fischer during a meeting break on Dec. 19, 2007, to request leave for the trip. Beverly Ballard alleges that she discussed FMLA leave with Fischer, and was told she was notifying him too far in advance, and that he would get back to her.

Fischer and Chicago Park District deny the conversation ever happened, and Fischer claimed that he didn’t learn of Ballard’s trip until he received a faxed leave request in January 2008. The Park District maintains that the quality of the fax was so poor that Fischer initially thought it was a request for personal days and thus denied it, according to court records.

Ballard maintains she repeatedly tried to reach Fischer by phone after learning her request was denied, and, while she hadn’t received formal approval, she “believed that her FMLA leave would be approved” based on conversations she had with Fischer’s administrative assistant during this time. Thus, she left for Las Vegas with her mother on Jan. 21, 2008.

During her trip, Beverly Ballard acknowledges shopping with her mother, dining at restaurants and playing slots, while admitting there were “no plans for Sarah Ballard to seek professional medical care, therapy or treatment for her heart condition” during their Vegas stay.

Ballard, who returned to work on January 28, 2008, was fired in March of that year for her allegedly unauthorized absences, and subsequently filed a lawsuit under FMLA.

Under the court’s rationale, the decision “departs from other precedent—which it acknowledges—in holding that the trip on which the caregiver accompanies the patient needn’t be a trip which was itself either part of ongoing treatment or [taken] for the purpose of receiving treatment, says Ronald Meisburg, a Washington, D.C.-based partner in Proskauer’s labor and employment law department.

“Thus, under this court’s ruling, any trip a patient might choose to take would support FMLA leave for the caregiver to go along. This may be overturned on appeal, or eventually become a question for Supreme Court resolution. In the meantime, the rationale of the court introduces a variable that may pose more difficult questions” for employers, he says.

The boundaries of FMLA leave are subject to expansion, and even potential abuse. For example, suppose the caregiver understandably needed a vacation but was the sole caregiver of a patient. Could the caregiver take the patient along on vacation and claim FMLA leave? Or could a caregiver mask his or her own vacation by arranging a trip for the patient, and then going along as the caregiver on FMLA leave?”

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. . . and that means employers’ obligations when conducting background checks of employees and candidates will be changing when the calendar page turns over.

According to the good folks at Ogletree Deakins:

Employers will be required to use updated forms as part of their background check process by January 1, 2013, as responsibility for interpreting the federal Fair Credit Reporting Act (FCRA) transfers from the Federal Trade Commission (FTC) to the newly-created Consumer Financial Protection Bureau (CFPB).

The new forms, which can be found using the link above, include changes in the forms which reflect that consumers can contact the CFPB or visit the website at www.consumerfinance.gov/learnmore to obtain more information about their rights, as opposed to contacting the FTC, according to the firm’s Stephen R. Woods.

And employers that “negligently” or “willfully” fail to comply with any of the FCRA’s requirements may be subject to lawsuits brought by applicants or employees, Woods says.

Negligent failure to comply with the requirements can lead to actual damages and attorneys’ fees, while willful failure to comply with requirements can lead to statutory damages ($100-$1,000 per violation), attorneys’ fees, and punitive damages.

This blog commends the HR leader with forethought and foresight who updates their forms now before the task gets lost in the year-end torrent of tasks.

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At the 15th annual HR Technology^® Conference, “the Cloud” was the one buzzword that was possibly mentioned even more than “social media.” Seems like everyone has, is planning to or is seriously considering moving their HR systems to an outside, hosted, Software-as-a-Service platform. But how will they reap the full business benefits of such a move? The conference’s first ever “master panel” devoted solely to the Cloud, moderated by long-time conference panelist Naomi Lee Bloom of Bloom & Wallace, offered the perspectives from senior executives at six of the most important vendors in the space: Workday, SAP, Salesforce.com, Oracle, Ultimate Software and ADP.

“From a user adoption perspective, how do we make these [Cloud-based] tools truly usable?” Bloom asked the panelists.

“I teach a course at Stanford University, and one of my students — a hardcore technologist, by the way — asked me ‘Why does enterprise software have to be so inhumane?’” said SAP’s Sanjay Poonen, president of global solutions. “Building our applications on the Cloud gives us a clean slate. We’re hiring Millennials to be our designers … because the way you interact with an organizational chart in a technology landscape where everything now is ‘zoom, pinch,’ like on a tablet, changes everything. We’re taking these core principles and using them as we build the Cloud, and ensuring our customer base gets in on the journey.”

“Having this clean slate on the Cloud lets you build one organic thing, rather than in parts and pieces,” said Stan Swete, CTO of Workday. “This is the early part of the trend. Our path in Workday is ‘pure play in the Cloud.’ Our customers can take functionality as we drop it off to them.”

Another issue raised by Bloom was, how can customers cope in a world where, thanks to the Cloud, vendors can continuously roll out new releases of their products throughout the year–how can they avoid being overwhelmed?

“Vendors have to be thoughtful — they can’t just be throwing new releases out there and wait for customers to turn them on,” said Mike Capone, ADP’s vice president for product development and CIO. “We don’t bill customers for new functionality until they turn it on. You have to be thoughtful about this.”

Salesforce.com’s John Wookey said his company takes a different tack: “We tell customers that this new version of the software is coming at this particular date, and you have no choice. And it’s helped them change the way they think about their business. Even some of our most conservative customers have embraced this approach. And that would be my advice: embrace it. Your people are empowered by change.”

Ultimate Software’s chief technology officer, Adam Rogers, said his firm focuses on “delivery management,” letting customers turn on new functionality at their leisure. It also provides free training to customers, he said. “Does this mean ‘free training’ is going to be the new standard?” asked Bloom, prompting laughter and applause from the standing-room-only crowd.

Poonen said SAP has experimented with new iterations of software releases, testing them with “micro audiences” to see what works. It also has put out a great deal of training videos on YouTube, he said.

In answer to one of Bloom’s final questions — “Why should HR be paying attention to this?” — Wookey said ”Businesses of every size run on technology. If you’re going to speak the language of business, then you need to speak the language of technology. The Cloud, in the end, is all about speed and agility in your organization. As for social technology, it’s important for people to be able to work together, and today they expect software to be just as easy to use as what they find on the consumer side. And mobile technology lets people do their jobs regardless of where they are. So HR needs to be an advocate for this.”

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Once again, as in previous HR Technology^® Conferences, the union of recruiting and technology — and what it’s going to look like going forward — was the juggernaut for consensus and debate on the 15th annual conference’s final day.

Led by moderators Gerry Crispin, principal and co-founder of CareerXroads, and Sarah White, principal and founder of SW & Associates, this year’s panel of four staffing leaders from Lockheed Martin, Key Bank, PepsiCo and Deloitte took up the still-evolving, often-troubling topic in Wednesday’s session, “What’s Next? What Talent Acquisition Challenges are Seeking Technology Solutions?”

All agreed that, despite great strides in social recruiting, and recruiting technology in general, even their organizations — leaders in this new frontier — have a long way to go.

“I would challenge any one of us to say we are fully prepared and where we need to be,” said panelist Frank Wittenauer, associate director of global talent solutions for Deloitte. “Recruiting is still the last thing that gets defined. When the economy is good, it’s, ‘Let’s go, let’s get the butts in seats, let’s do the background checks after they’re hired.’

“When it’s slow,” he said, “it’s, ‘Let’s do six interviews, six times, and then six more, divide the results by pi … ‘ ” you get the idea. So did the standing-only roomful of chuckling attendees.

The panelists were mixed on whether leveraging new recruiting-technology tools should be a local activity for global companies or a global one. Should companies be allowing their smaller, more remote recruiting teams to innovate and move forward within their own domains and unique sets of circumstances or should they all be aligning under one global-recruitment umbrella?

“It’s OK to let your recruiters have blinders on when it comes to recruiting technology,” said Mike Grennier, senior vice president of talent acquisition for Key Bank.

Crispin cautioned, though, that “there should be some way for that global alignment to take place. They all have the tools to reach across global boundaries,” he said, “but who in your organization is showing them the reach beyond their own domain? We have all that recruiting data, but is anybody really communicating about it?”

Still emerging and highly imperfect, panelists agreed, is the effectiveness of workforce planning as a pre-emptive, proactive social-recruiting tool. At the very least, at PepsiCo, “we ask HR to identify jobs or profiles that are hard to find and then keep [candidates] in store there — in waiting — so there, we’re pre-emptive,” said Sheila Stygar, PepsiCo’s senior director of talent acquisition.

Also fledgling and inadequate, they agreed, are the processes in place for dealing with the plethora and proliferation of new, often smaller, vendors with specific solutions to particular problems, or, as Crispin described them, “small pieces to add to the entire [social-recruiting] function.”

“Where do you have in your organization someone who filters through all the solutions out there?” he asked.

Grennier suggested companies trying to find that “solution-filterer” look for someone with “a real passion” for the social-recruiting function” and technology in general.

Panelists also agreed that, as social recruiting continues to “find itself” as a defined function within companies, recruiters learn to treat it professionally and network with what Wittenauer described as “those go-to people” in the vendor community — people they can bounce all these new offerings and suggestions off of.

“If you don’t have those networks,” Crispin concurred, “you’re not going to be learning in real time.”

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