All posts by Jack Robinson

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

Unlimited Vacation and Productivity

Since the earliest days of unlimited PTO policies, supporters have argued they are more likely to help productivity than hurt it. A new analysis of data supports that claim.

In a report titled HR Mythbusters 2017, developers of the HR technology platform Namely analyze their data from 2016 to test the notion that unlimited vacation does more good than harm.

The result: Employees with unlimited time took an average of 13 days off, during the year, compared to 15 days for employees with a traditional allowance.

“The data prove that on average employees with unlimited PTO plans do in fact take less time off than employees with a set amount of vacation days,” the report authors write. “This calls for a change in the way HR teams and managers communicate about time off.”

In a related finding, the Namely analysis compared vacation-time usage with job performance. The result: “High performers tended to take an average of 19 vacation days per year, while individuals who scored lower took only 14.”

The State of Independence

The “gig economy” may be the future, but growth in the number of independent workers is slowing as the nation’s robust job market lures some back to traditional employment, a new report concludes.

MBO Partners, a Virginia-based firm that offers a technology platform for self-employed professionals, each year tallies the number of independent workers. Its 2017 State of Independence in America, seventh in an annual series of reports, finds the total number of such workers edged up just 3 percent to 40.9 million since 2016.

Most of that growth was in what the authors call “occasional” independent workers — including people with regular jobs who pursue a freelance “side gig” at least once a month. The number of these workers soared 23 percent in one year to 12.9 million, the report finds.

By contrast, the number of full-time independent workers — those working for themselves at least 15 hours a week — dropped more than 4 percent to 16.2 million. This is the second straight year of decline for this group, study’s authors say. “Surveys tell us … that many people prefer the security of full-time jobs,” they note. “We expect the number of full-time independents to cycle up and down in response to the strength of the jobs market.”

Predictably, part-time independent workers — those working for themselves fewer than 15 hours a week but devoting more time than an “occasional” independent  — fell in the middle: Their numbers declined only slightly, by 3 percent, to 11.8 million.

 

Will Foreign Students Shun the U.S?

The Trump administration’s increased scrutiny of H-1B visas affects not only experienced foreign workersit also could pinch the flow of talented international students who, after earning U.S. graduate degrees, traditionally start their careers in the lower rungs of major American companies.

A May 2017 survey by the Graduate Management Admission Council, which administers the exam that students usually must take to enter an MBA or other business-focused graduate program, found that two-thirds of 700 foreign students seeking admission to a U.S. graduate business program would consider shifting their destination to another country if they couldn’t get a work visa after graduation.

The U.S. remains the top choice for graduate business education, with 62 percent of respondents listing it as their first choice. India, at 9 percent, was the overall second choice. Canada, at 6 percent, was third, with China, the United Kingdom and France also mentioned.

But already there is evidence that U.S. visa policies are discouraging graduate business students. About two-thirds of MBA programs are reporting a decline in foreign-student applications, the council reported. And 56 percent of students who plan to study outside the U.S. cited American immigration policies as the reason, the GMAC survey found.

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  — temporarily — each time by the courts. The legal battle is far from over; a federal judge in Hawaii on June 28 extended an earlier order blocking the ban.

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

 

“As a global company, Simcorp has consultants that travel on short and long term assignments between countries,” Turk says. “The uncertainty surrounding the travel ban and its potential evolution make it more difficult for the company and employees to plan with confidence.”

 

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.

 

 
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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.”