All posts by Jack Robinson

Jack Robinson is a senior editor at Human Resource Executive magazine.

Life at Ground Zero

If anybody in HR sits in the middle of  the  chaos over U.S. immigration rules, it might be Vicky Turk. She works for SimCorp, a Copenhagen-based maker of advanced financial software with 1,376 employees all over the world. Based in New York, she’s  head of HR for a region that includes both the U.S. and Canada.

Lately, that hasn’t been easy.

Over recent months, the Trump administration has twice shut the door on visitors from certain countries, only to be stymied each time by the courts. The legal battle is far from over; in fact, it could move up to the U.S. Supreme Court as soon as this week.

Turk says the North American division of SimCorp has had two employees blocked by the travel ban as they tried to return from overseas.

At the same time, the administration has tightened restrictions on H-1B visas, which are especially prized by tech companies. SimCorp often uses “H and L” visa types to bring workers into the U.S.

“Hiring people is difficult,” Turk says. “We have to get them from Copenhagen.”

On top of all that, there is morale to worry about. With uncertainty stalking the visa programs and the travel ban still in place, many SimCorp employees “are really worried about what it all means for them,” Turk says.

 

Is One Watchdog Better Than Two?

The Trump administration wants to combine the Equal Employment Opportunity Commission with another federal watchdog agency—and both worker and business groups are worried.

The issue got attention on Wednesday as new Secretary of Labor Alexander Acosta testified before a House subcommittee about how President Trump’s proposed budget will affect his department.

Among other proposals that would cut Labor department spending by 20 percent overall, Trump’s budget also proposes merging the department’s Office of Federal Contract Compliance Programs into the EEOC, an independent agency.

Acosta told skeptical Democrats on the panel that the merger made “common sense” and would not hurt workers, the Associated Press and other news organizations reported.

Off Capitol Hill, the merger idea has drawn fire from communities that often disagree—business leaders and worker-rights advocates. The Leadership Conference on Civil and Human Rights, a coalition that includes labor unions, the ACLU and others, wrote the administration and Congress on May 26 that the merger would effectively shutter the OFCCP by folding it into the EEOC.

“Both OFCCP and EEOC help advance and protect equal employment opportunity, but they are distinct in their enforcement approaches and expertise, and they should remain separate,” said Leadership Conference CEO Wade Henderson in a prepared statement. “We strongly urge Congress to reject this proposal, which would lead to an erosion of key civil-rights protections for working people.”

Though the merger idea got an early boost from the business-friendly Heritage Foundation, some corporate leaders agree with critics that the agencies should remain separate. Some, including the U.S. Chamber of Commerce, fear the merger would create a mega-regulator with too much power.

”There is a fear in the business community that this newly formed grouping might result in the worst of all worlds from both agencies,” said Randy Johnson, a chamber senior vice president, in a prepared statement. He noted that the EEOC has legal powers the OFCCP does not.

Ready for More Immigration Audits?

With tougher immigration rules on the front burner in Washington, nearly every employer should be prepared for a visit from ICE agents sooner or later, warns an immigration lawyer who defends employers.
With President Trump’s “Buy American, Hire American” policy increasing scrutiny of employer-sponsored work visas like the H-1B, “I do believe we’ll see increased enforcement with respect to audits and site visits,” says Montserrat Miller, a n employment attorney partner at Arnall Golden Gregory LLP in Washington who specializes in helping employers with immigration issues.

Immigration and Customs Enforcement agents aren’t just targeting packing houses and other businesses with a history of hiring undocumented workers, Miller says. And they’re no longer just looking for “criminal aliens” and gang members, common targets of ICE workplace enforcement operations under previous administrations.

Any business with workers who have “H” or “L “visas—commonly issued to let foreign citizens work in the U.S. for a sponsoring employer—should be prepared for a sudden visit by ICE agents looking to see that all the paperwork is in order, Miller says.

“Everybody has the potential to be detained if they’re not authorized to be in the United States,” she says. (Watch for more coverage of changes in immigration law, including a Human Resource Executive® magazine cover story to be published this month that looks at how employers are affected.)

Miller says it’s key to be prepared for these visits. First, she says, make sure people on the front lines, such as receptionists, know what to do when an agent arrives. They also should know what documentation ICE agents are required to present when they arrive, she adds, and whom to summon for help, including HR leaders and legal counsel.

Employers, Miller says, should also determine before any site visit where agents may and may not go to inspect company records.

Employees with work visas should be familiar with details provided on their visa applications “so they don’t accidentally say something [to agents] that raises questions” during a site visit, according to Miller.

The bottom line:”You need to have a plan in place.”

HR lessons from Trump’s FBI Firing

Some employment lawyers couldn’t help themselves last week after President Trump fired FBI director James Comey in a political incident that quickly spun out of control: They found lessons for their corporate clients from the high-profile inside-the-Beltway affair.

“I wanted to go on CNN or MSNBC,there was so much to say,” laughed Ellen R. Storch, a partner with Kaufman Dolowich Voluck LLP in Woodbury, N.Y.

The comparison to corporate HR is plausible, Storch notes, since any large company may have regional or divisional leaders whom the CEO might target for”showboating,” to use the president’s term about Comey.

But any CEO who fired a high-profile subordinate as Trump fired Comey would be exposing the company to legal risks, says Storch, whose practice includes both litigation and counseling employers on best practices.

“After doing this for 20 years, II firmly believe the optics” of a termination are critical,Storch says — is there a clearly legitimate  business reason for termination? The tone and content of public messages about the firing also matters, Storch says.To start with, a high-profile employee likely has a big ego that must be managed, she says. If they are considering legal action over their termination, that employeewill be balancing pragmatic considerations — possible harm to their career for battling an employer in court — with anger stemming from damage to that big ego. So how an employer handles the termination can  influence the employee’s willingness to sue, Storch says.

How a firing plays out also will affect employees who remain and how they feel about their employer, she notes. Much of this depends on what leaders say about the termination, Storch says. “You can manage a separation in a way so it sends a message.”

Ideally that message is “We care about you guys, but we need to go in a different direction.”So wWhat was wrong with how Comey’s firing was handled?

“Just about everything,”Storch says. A corporate employer who issued as many conflicting statements as did the White House in the hours after Comey was fired would have undercut its legal defenses, Storch says. In such a situation, “the employer has unnecessarily created a credibility issue for themselves,” she says.

 

 
One

Employers Take Care — It’s May Day

Today is May Day, a.k.a. International Workers Day, an occasion that in the United States once was mainly observed by labor unions. In 2017, reflecting the rise of more informal worker  organizations, civil-rights groups with names like “Rise Up” are behind hundreds of planned strikes, rallies and marches demonstrations around the country in support of labor-related causes like higher minimum wages and relaxed federal immigration policies.

 

Welcome to the future, saysAndrew B. Prescott, an employer-side labor lawyer with Nixon Peabody in Providence, Rhode Island. With Donld J. Trump firmly installed in the White House, Prescott sees the beginning of an era of more  antagonistic relations between employers and worker groups. And political groups dedicated to causes like fast-food-worker rights, not traditional labor unions, will likely set the tone, Prescott says.

Though May 1 demonstrations may be organized by groups not involved in collective bargaining, lawyers warn employers that today’s activities may still be protected under the National Labor Relations Act.

Writing in Crain’s Detroit Business, employment attorney Nick Huguelet ofDetroit-based Nemeth Law PC notes that the law doesn’t give workers the right to simply skip work on a day like today. But section 7 of the NLRA “protects an employee’s right to engage in concerted activities concerning the terms and conditions of employment or for other mutual aid or protection…this right applies equally in both union and nonunion workplaces and may protect employees from being disciplined for engaging in a strike.”

Though the law”does not protect purely political demonstrations, it can be difficult to show that a job action is purely political,” Huguelet writes. “For example, immigration reform has been found to be sufficiently connected to the terms and conditions of employment, and therefore protected. Because the NLRB for the time being continues to be sympathetic to employee rights, employers should be cautious about imposing disciplinary action on striking employees.”

EEOC: HR Leader Wrongly Fired

The American Dental Association illegally fired both its CHRO and chief legal counsel after they alerted the association board about employment discrimination occurring at the Chicago-based trade group, says the Equal Employment Opportunity Commission.

The agency on Friday announced a $1.95 million settlement with the association to resolve charges that the group illegally retaliated against the the chief legal counsel, Tamra Kempf, and the association’s  chief HR official, whom it did not name.

The two had raised concerns about violation of laws prohibiting discrimination on the basis of age and disability, the EEOC said, without providing details.

Beyond the discrimination, the retaliation was of great concern, said Julianne Bowman, director of the EEOC’s Chicago District office.

“The position of the EEOC is that human resource  professionals and in-house lawyers who advise their employers to abide by anti-discrimination laws are engaged in protected activities, and any retaliation against them for doing so is illegal,” Bowman said in the EEOC statement.

The dental association contended the two former employees’ complaints are “without merit,”but said it settled to avoid the costs and risks of a trial.

In addition to the fines, which will go to the former employees, the association agreed to take “proactive measures” to prevent future discrimination and retaliation. It also will provide training in discrimination law for employees in the association’s Chicago headquarters,the EEOC said.

Another Casualty at Fox News

Board members at 21st Century Fox this week took dramatic steps to end what was shaping up to be an epic HR train wreck at the media giant.

On Tuesday they dismissed Bill O’Reilly, popular host of “The O’Reilly Factor,” the  top-rated show on its top-rated cable outlet, the Fox News Channel. News stories recently have detailed sexual-harassment complaints that have piled up against O’Reilly, costing the network at least $13 million in settlements so far and more in than 50 advertisers as the unflattering headlines tarnished the Fox News brand. It was the latest chapter in a story that began with the ouster of Fox News CEO Roger Ailes last summer over similar allegations of rampant sexual harassment problems at Fox News.

The New York Times, which started the latest chain of events on April 1 by publishing the first accounts of sexual-harassment complaints against O’Reilly, said the decision to fire him was made by Rupert Murdoch and his two sons, who hold controlling interests in 21st Century Fox after an internal investigation found that several women had reported inappropriate conduct by O’Reilly. Murdoch, executive co-chairman of the 21st Century Fox board, also has been acting CEO of the Fox News unit since Ailes was fired in July 2016.

The decision came in a terse announcement: “After a thorough and careful review of the allegations, the Company and Bill O’Reilly have agreed that Bill O’Reilly will not be returning to the Fox News Channel.” The deal included severance payments of up to $25 million, several news organizations reported.

O’Reilly, who was in Italy on vacation when the news of his dismissal broke, expressed disappointment in a series of short statements that alluded to his longstanding contempt for “political correctness.”

“Over the past 20 years at Fox News, I have been extremely proud to launch and lead one of the most successful news programs in history, which has consistently informed and entertained millions of Americans and significantly contributed to building Fox into the dominant news network in television,” O’Reilly said in one statement published by Entertainment Weekly late on Tuesday. “It is tremendously disheartening that we part ways due to completely unfounded claims. But that is the unfortunate reality many of us in the public eye must live with today. I will always look back on my time at Fox with great pride in the unprecedented success we achieved and with my deepest gratitude to all my dedicated viewers. I wish only the best for Fox News Channel.”

 

Another Strange Turn at Fox News

The news hasn’t been kind to Fox News lately.

As a messy sexual harassment scandal began unfurling last year, the television network and its corporate parent, 21st Century Fox, were battered with unflattering headlines. Besieged with employee  suits alleging a systemic culture of sexual harassment and retaliation, the company had to spend $20 million last fall to settle claims from former star anchor Gretchen Carlson. Months earlier, Fox also had spent $40 million in a deal to dismiss network CEO Roger Ailes. Other sex-harassment cases against the company remain pending. But new ones keep coming.  Most recently, the storm returned after The New York Times on April 1 reported that sex-harassment claims were piling up against Bill O’Reilly, host of the news channel’s most popular show. The network has paid five women a total of $13million to settle their claims, the Times reorted.

Once again, Fox’s image took a beating.  So did revenue: This time, advertisers left the channel to preserve their own reputations. As a high-profile law firm conducted an investigation on behalf of management, some news outlets reported O’Reilly could be ousted.

We can only imagine how challenging life is today in the Fox HR department.

We may not have to wonder. If one news report is true, HR leaders at 21st Century Fox took a bold step to change the company culture: they launched a training program that features a video that Americans have come to know well: The infamous “Access Hollywood”outtakes featuring host Billy Bush exchanging salacious banter with now-President Donald Trump.

The newspaper reported  that Fox has shown the tape as a regular part of employee seminars warning against sexual harassment.

Hollywood Reporter said employee reaction has at times been incredulous: “There was an audible gasp in the room, like, ‘Can you believe this is happening?’”one tipster told the newspaper.

Using Data To Defend H-1B Visas

As the federal government this week began accepting H-1B visa applications for 2017, Trump administration officials sent new signals that they will more carefully scrutinize employer use of the popular tool for recruiting skilled workers.

Meanwhile, a new study disputes the idea — espoused by the president himself –that employers use H-1B visas to hire “cheap labor” from overseas, undercutting Americans who would like the jobs.

The study, by the job site Glassdoor, concluded that foreign workers with H-1B visas on average earn nearly 3 percent more than Americans holding comparable jobs. Overseen by Glassdoor chief economist Andrew Chamberlain, the analysis compared salaries reported on H-1B applications with those reported by Glassdor users for comparable jobs.

While a study in the 1990s suggested that wages for computer scientists were hurt by an influx of H-1B workers at the time, the current data show “there’s no evidence that H-1B workers are paid any less” than America counterparts today, Chamberlain writes.

Overall, the foreign workers earn 2.8 percent more, the study found.The pay gap varied by job title and location; for example,H-1B workers were more likely to earn less than their American counterparts in Washington, D.C. than in other major U.S job hubs.

But the program remains a target for critics, including many in the Trump administration, who say it hurts native-born workers by creating a back door for foreign applicants.UnderTrump, the federal government has begun to tighten regulations that govern the program. Last week, for example, officials said computer programming jobs, long a popular use forH-1B visas, would no longer automatically qualify.

It’s unclear what further restrictions may follow. But just this week immigration officials vowed to redouble enforcement efforts against employers that skirt the rules. “Too many American workers who are qualified, willing and deserving to work in these fields have been ignored or unfairly disadvantaged,”said a statement issued Monday by the U.S. Citizenship and Immigration Services.

On Social Media and Return to Work

Employers are understandably worried when workers use third-party social media sites such as Facebook to communicate with each other about work matters.

A recent personal experience has given me a different perspective. In some cases, I believe, these social platforms can provide benefits for both employers and workers.

I was diagnosed with a brain tumor late in November and had surgery on Dec. 2, followed by intensive physical rehabilitation to restore nerve-muscle connections on my left side.

I immediately used Facebook and LinkedIn to update my professional contacts. And I have reaped big benefits from support offered by colleagues at HRE and from former co-workers at other publications around the nation.

That support helps me tap into the power of my network for encouragement and will speed my return to productivity. That suggests to me that these social-media tools may have real value to employers who want to support sick and injured workers and help them quickly get back in the saddle.