All posts by Mark McGraw

Advantage Employer?

A recent federal district court decision may give companies a useful weapon to defend themselves in litigation with the Equal Employment Opportunity Commission.

In the case of EEOC v. DHL Express, the U.S. District Court for the Northern District of Illinois has granted the logistics provider’s motion to compel the EEOC to make all claimants in the case available for deposition.

In the suit, a group of 94 black drivers and dockworkers for DHL Express in Chicago claimed they had been unlawfully given less desirable, more difficult and more dangerous route and dock assignments than white employees. In addition, the claimants alleged they were typically assigned routes in predominantly black areas.

The EEOC had refused to let DHL depose all of the claimants involved, contending the vignettes the EEOC had provided for each claimant in the interrogatories were sufficient, as were the company’s depositions of 34 of the plaintiffs. Further, the agency argued that deposing each claimant would be unnecessarily expensive and redundant.

The court, however, determined that “expenses are being incurred based on how the EEOC has decided to prosecute this case overall, including hiring an expert to analyze route assignments. The court will not jeopardize DHL’s opportunity to defend itself in order to accommodate the expense of plaintiff’s litigation strategy.”

This was just one court’s opinion, and others may not apply the same reasoning in the future. But the DHL decision may give the EEOC cause to rethink its approach to litigation going forward, says Jeff Nowak, partner and co-chair of the labor and employment practice group at Chicago-based law firm Franczek Radelet.

“Over the past few years, the EEOC has pursued an aggressive agenda to expand the scope of its charge investigations to focus on systemic discrimination,” he says. “As a result, it regularly subpoenas employer documents that far exceed any semblance of reasonableness. Unfortunately, it has a track record of approaching litigation in a similar fashion.”

The ruling in the DHL Express case, however, levels the playing field to some extent, “in that employers now are better able to confront purported charging parties and class members to test the veracity of these individuals’ claims and mount an adequate defense,” says Nowak.  

Will [this decision] stem the tide of EEOC litigation against employers? No. But it sends a message to the EEOC that it must carefully evaluate potential litigation before filing suit, and set aside any ‘hide the ball’ tactics when engaged in litigation.”

Sign Here, Please

The recent ruling in a case that one attorney describes as “troublesome” holds a valuable lesson for employers and HR in the proper enforcement of arbitration agreements.

The details, according to a summary from White Plains, N.Y.-based employment and labor law firm Jackson Lewis …

In 2010, the Sports Club Co., headquartered in Los Angeles, revised its employee handbook to include an arbitration agreement that all employees were required to sign as a condition of employment. Susan Gorlach, the organization’s HR director at the time, was responsible for distributing the new handbook to employees and obtaining signed arbitration agreements.

In June 2010, Gorlach told the company’s chief operating officer that all but four corporate employees had signed the arbitration agreement, but neglected to mention that she was among that small group.

In July, Gorlach—still in the process of gathering employee signatures—reportedly suggested the company “think about” how to proceed should an employee ultimately refuse to sign. She resigned the following month, and subsequently sued TSC for wrongful termination, sexual harassment and retaliation, among other claims.

The company denied the allegations. In asking a trial court to compel arbitration, TSC argued that, through her continued employment with the organization, Gorlach assented to the arbitration agreement despite not signing it. A trial court declined to compel arbitration, ruling that Gorlach had, by omission, intentionally misled the company to believe she had signed the agreement. Nevertheless, the fact that Gorlach hadn’t signed led the court to rule that she was not equitably estopped from denying the existence of the agreement, and that no implied contract existed between the parties. The appeals court ruling affirms that decision.

“This is a troublesome case, because the person who was supposed to be the gatekeeper for ensuring the agreements to arbitrate were signed was able to avoid having to arbitrate her claims by a sleight of hand,” says Mark Askanas, partner and litigation manager in the San Francisco office of Jackson Lewis.

Employers’ and HR professionals’ takeaway from the case is clear, he says.

If your agreement to arbitrate specifically requires that employees sign the agreement, it must be signed to be enforceable. The employer’s belief—however reasonable—that an employee signed the agreement will not supplant this requirement.”

Employers can take one of two approaches to enforcing signature requirements, according to Askanas.

First, the agreement can state that disputes are subject to arbitration, regardless of whether the employee signed the agreement. Second, employers can implement a system that tracks the actual signatures to the agreement, and does not rely entirely on someone’s representation, express or implied, that he or she signed the agreement.”

Reimagining Performance Management

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.

Leave in Las Vegas

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?”

School District Taught a Lesson in FMLA Case

Note to employers: always keep a complete and accurate record of the hours logged by non-exempt workers.

A recent New York appeals court decision should help remind HR of the price for failing to do so.

In the case of Donnelly v. Greenburgh Central School District No. 7, high school teacher Edward Donnelly claimed the district denied him tenure after he took time off under the Family and Medical Leave Act to undergo gallbladder surgery. The district, however, argued Donnelly was not eligible for FMLA leave because he had only worked 1,247 hours the previous year, leaving him just shy of the 1,250 hours required to qualify.

Both parties agreed that Donnelly worked seven hours and 15 minutes each day for 172 days during the 12-month period preceding his leave—for a total of 1,247—per his union’s collective bargaining agreement. The same agreement, however, also recognizes that “teachers have responsibilities which they readily and willingly perform that extend beyond the pupil’s regular school day.”

Indeed, Donnelly contended he regularly worked more than one hour before and after class. His assertion was supported by a June 2006 performance evaluation stating that Donnelly often arrived early to work, and frequently “stay[ed] late into the afternoon working with his kids to ensure their success.”

That performance review detailing Donnelly’s extra hours on the job was a factor in the Second Circuit Court of Appeals decision to overturn a lower court’s ruling. The appeals court also found that the school district hadn’t kept an adequate, accurate record of the hours Donnelly had worked, and noted that the collective bargaining agreement in place wasn’t the only means of calculating Donnelly’s hours under the FMLA.

The Donnelly ruling presents a “cautionary tale” for HR professionals, says Stephen Sheinfeld, partner and head of Winston & Strawn’s labor and employment relations practice group in New York.

[This case] reminds employers of the need for accurate recordkeeping and potential liability arising from work performed outside of the ‘regular’ workday,” says Sheinfeld. “Particularly, given the prevalence of remote-access work capabilities, employers need to be aware that work conducted by non-exempt employees outside of the regular workday may be compensable under the Fair Labor Standards Act, whether conducted on a PDA, home computer or otherwise.”

Such work, when performed by exempt employees, may not be required to be recorded for the FLSA, but may be counted as hours worked for purposes of the FMLA, he adds.

“Thus, the lesson for HR is to maintain policies, corresponding records and policing mechanisms so that there is no confusion as to hours worked.”

Boomers Get Social in Job Search

The social networking sphere is supposed to be the domain of the young, right?

It’s fair to say that Generations Y and Z have led the way in making new verbs like “Facebook me” and “tweeting” a part of our everyday language. But, there’s no shortage of data showing that older generations—particularly baby boomers—have begun to plug into the social network as well.

And, boomers are doing much more than posting pictures and sharing mundane details of their daily routines, according to a recent poll conducted by Millennial Branding, a Boston-based research and consulting firm, and

The survey of 5,268 job seekers actually found that more baby boomers (29 percent) report using social networks as part of their job search than members of both Generation X (27 percent) and Generation Y (23 percent).

If that statistic surprises you, you’re not alone.

“I was very surprised, for the obvious reasons,” says Dan Schawbel, founder and managing partner of Millennial Branding. “It’s interesting. A lot of people would suspect that it would be a very small number of boomers using social networking.”

A key contributing factor, says Schawbel, could be the large numbers of older job seekers using LinkedIn, the well-known networking site for people in professional occupations.

“For boomers, [LinkedIn] is just easier for them to use. All their connections are using it.”

Indeed, studies put the average LinkedIn user age in the mid-40s, with a mean salary in the six-figure range, he says. “So [many of these users] hold, or are looking for, executive- and director-level jobs.”

So, while most large companies already use social networking for recruiting purposes, this knowledge may help HR professionals make more efficient use of their time when recruiting for the types of top positions typically filled by boomer-age candidates, says Schawbel.

The reality is, if you’re an employer, you have to use all the top social networks. You can’t avoid Twitter, LinkedIn and Facebook. But this finding shows you that you may use most of your time on LinkedIn for executive recruiting. Recruiters have less and less time these days. So this report tells them where they should spend their time and how.”

Turning Weakness into Strength

The ability to recognize one’s own faults is in itself considered a positive personal attribute.

Many bosses, however, seem to lack the self-awareness and/or introspective powers necessary to look inside themselves, identify shortcomings and start working to overcome them.

Or at least some of their employees think that’s the case.

A recent poll of 2,700 North American workers, conducted by leadership consulting and research firm Healthy Companies International, found that more than one-third (37 percent) of employees said their managers “lack openness around personal strengths and weaknesses.”

Leaders are largely judged on – and rewarded for — results, which leads to a sharper focus on the strengths that lead to achievement rather than the weaknesses that may somehow diminish them, says Stephen Parker, president of Arlington, Va.-based Healthy Companies International.

“Also, the more senior a leader becomes, the less authentic feedback he or she is likely to get,” he adds.

But, while managers may find fewer and fewer equals to provide honest appraisals as they climb the ranks , HR leaders can step in to fill that gap, says Parker.

HR should model a personal development process that speaks directly to [leaders’] strengths and weaknesses. It’s also crucial that reward systems include the use of 360-degree feedback, and that leaders be held accountable for developing and executing robust development plans for themselves and members of their teams. Effective reward systems balance the focus between short-term financial and operational goals with leadership behaviors that support a healthy culture and encourage lifelong learning for both leaders and their teams.”

HR should also ensure that strong leadership development programs are in place for future managers and executives as well, continues Parker.

“In addition to offering a key competitive advantage in terms of attracting and retaining talent, high-potential programs are critical to sustaining organizational capability. They also offer the opportunity to develop a basic leadership skill from the very beginning: The ability to both give and receive constructive feedback. Mastering this skill will not only propel the individual, but the company as well. Viewed this way, understanding and appreciating the balance between one’s strengths and weaknesses becomes a clear competitive advantage.”

IBM Acquires Kenexa, Shakes Up HR Software Space

In a move that ups the ante in an increasingly crowded HR software market, IBM has acquired HR, talent acquisition and talent management software provider Kenexa.

For its $1.3 billion, the Armonk, N.Y.-based technology giant gains Kenexa’s range of technology offerings that include recruitment, onboarding, employee assessment, interviewing, performance and compensation management, career development, goal alignment, succession planning and employment branding platforms. IBM will integrate Kenexa’s approximately 2,800 employees and operations from 21 countries into its software and services groups.

According to IBM, the acquisition will help its clients “embrace social business capabilities.”

In a teleconference announcing the purchase, Alistair Rennie, general manager of social business for IBM, described how Kenexa complements IBM’s “strategy of bringing relevant data and expertise into the hands of business leaders within every functional department from HR, sales, marketing to product development.”

“Kenexa has always applied a science-based view to key processes—locating talent, helping it perform better,” he said. “Combined with our expertise, it’s an absolutely perfect fit. Our capabilities combine perfectly to create outcome-driven perspectives for our clients.”

The transaction, which IBM expects to close in the fourth quarter, brings Big Blue into a talent management software market that already includes Oracle and SAP, with those companies having acquired Taleo and SuccessFactors, respectively, earlier this year. This latest acquisition has tremendous potential to shake up an ever-more competitive space, says Jason Averbook, CEO of Minneapolis-based HR consultancy Knowledge Infusion.

“Kenexa is not only an application vendor, but has a tremendous mix of value-added services and expertise that makes its value much more than just an application play, but a pure solution play. Whether an organization wants to leverage applications or create a complete outsourced talent solution, Kenexa provides that capability,” says Averbook.

If you combine Kenexa’s data asset and IBM’s focus on big data, solutions and the combination of knowledge, transactions and the impact that people [have] on the business, IBM has created a leapfrog moment in the true talent management solution space that an application vendor alone cannot provide.”

There’s a need for the HR applications that suppliers such as Oracle, SAP and Cornerstone OnDemand provide, continues Averbook. “But what IBM and Kenexa have done with this acquisition is an attempt to leapfrog others in the industry to create something ‘different’ but possibly more relevant in what human capital management professionals are looking for today,” he says.

The combination of IBM and Kenexa creates a new type of play in the human capital management space that is a combination of transaction, big data and social that, if done correctly, could redefine the next generation of talent management.”

Today’s announcement is more evidence of increasing competition among the marquee names in the HR software market, adds Josh Bersin, CEO and president of Bersin & Associates, an Oakland, Calif.-based advisory services firm. “IBM, if they wanted to, could be the biggest or one of the biggest players in the talent management space, in terms of both software and services. Even though you have Oracle and SAP and Cornerstone out there, no one has the reach of IBM. They’re in a lot of countries where there aren’t many reps selling HR software.

“This market is still growing,” he continues. “The big players are trying to cement their positions in an increasing market. I think that’s what’s happening.”

Embracing the Odd Interview Question

How would you get an elephant into a refrigerator?

That’s a strange question to ask in any context. But posing such oddball queries is an old trick used during job interviews to gauge candidates’ ability to think fast and creatively.

Interviewers who like to throw out this type of curveball question aren’t necessarily looking for a specific response. The bigger concern is that the candidate doesn’t swing and miss completely; stumbling and stammering while coming up with nothing at all.

Well, a recent survey suggests that a majority of job seekers actually welcome the chance to knock offbeat interview questions out of the park. The poll, conducted by British recruitment firm Michael Page International, found that 66 percent of more than 1,000 respondents said they would feel confident about their ability to answer questions asking which famous person they’d like to trade places with for a day, or why manhole covers are round and not square, for example.

Jobseekers as well as employers stand to gain by occasionally taking interviews off the predictable path, says Dean Ball, a regional managing director for Michael Page.

Weird interview questions can spark interesting reactions from candidates, but they are also an extremely useful way for businesses to differentiate between candidates who have similar qualifications and experience on paper. They give candidates a chance to step outside the traditional boundaries of the interview process and really demonstrate their creativity, ability to apply logic and how they work under pressure. Such questions can also provide a light-hearted moment in what can be quite a formal situation, giving the employer a real chance to see a candidate’s personality and how they might fit into the company culture, so businesses shouldn’t shy away from them.”

Still, be prepared for job candidates who don’t see the value in “interesting” interview questions. Fifty-four percent of survey respondents indicated they would be surprised by an offbeat line of questioning, and 33 percent said they would struggle with it; either challenging an unexpected question’s relevance or simply saying they don’t know the answer.

The bottom line? Proceed with caution when taking the weird interview question route, Ball advises.

If used correctly, obscure lines of questioning can really help employers to build a clear picture of a candidate’s potential, so it’s worth exploring how they might fit into your assessment processes. They can sometimes take candidates by surprise, though, so make sure you take time to think carefully about the questions and what kind of response you are hoping to achieve.”

Benefits from Beyond the Grave

It’s fair to say that Google has a reputation as a world-beater in the employee perks department. Free fitness classes, an on-site medical staff, a subsidized massage program, foosball tables and video games, free haircuts and dry cleaning services are just a few of the benefits enjoyed by employees at the corporation’s Mountain View, Calif. headquarters. And, it seems the company’s generosity extends to workers’ families as well, and continues long after Google employees have passed away.

As reported by Forbes, spouses or domestic partners of U.S.-based Google employees who die while under the employ of the company will receive a check for 50 percent of the deceased employee’s salary for 10 years. The surviving spouse or partner also acquires vested stock benefits, and their children receive $1,000 a month until the age of 19; perhaps longer if the child is still a full-time student.

What’s the catch, you may ask? There isn’t one, according to Google. A company spokesperson confirms that there’s no tenure requirement to receive this benefit, which means that most of the Internet search giant’s 34,000 employees are eligible.

One of the things we realized recently was that one of the harshest but most reliable facts of life is that at some point most of us will be confronted with the death of our partners,” Google Chief People Officer Laszlo Bock told Forbes. “And it’s a horrible, difficult time no matter what, and every time we went through this as a company we tried to find ways to help the surviving spouse of the Googler who passed away.”

Death benefits were formally implemented at Google in 2011, according to Bock. While “there’s no benefit” to the organization from an economic or productivity standpoint, “it’s important to the company to help our families through this horrific if inevitable life event,” Bock says.

The newest addition to the long and varied list of Google employee perks is indeed a generous one, and certainly won’t hurt the company’s reputation for offering unique benefits to its people. But will this kick off a trend? Will more large companies begin offering similar benefits to their employees? And should they?