All posts by Michael J. O'Brien

Supreme Court Rules on NLRB

The  Supreme Court decided 6-2 today to uphold a lower court’s ruling that then-President Barack Obama exceeded his legal authority with his temporary appointment of a National Labor Relations Board general counsel in 2011, meaning former NLRB Acting General Counsel Lafe Solomon improperly held that position for nearly three years while his nomination to assume the General Counsel role fulltime was pending.

The Court specifically found that Solomon’s service as the Acting General Counsel while his nomination was being considered violated the Federal Vacancies Reform Act.

“This ruling effectively invalidates Solomon’s three-year tenure as the Acting General Counsel from 2010 to 2013,” writes David J. Pryzbylski, a partner at Barnes and Thornburg in a post on the National Law Review.

The lawsuit arose when Southwest Ambulance challenged an unfair labor practice complaint that had been filed against it by Solomon when he was Acting General Counsel, Pryzbyiski says. The Court’s conclusion that Solomon was not appropriately in that role means that the complaint against Southwest Ambulance was invalid.

So what does this ruling mean for employers? According to a statement on Fisher Phillps’ web site, the only sure thing is that Southwest, the employer in this case, is off the hook for the unfair labor practice charge.

The Court’s opinion, the firm says, is a modest victory for employers “who are protected from overreaching presidential appointments, such as the long-term, temporary NLRB General Counsel designee in this case who served without the advice and consent of the Senate.”

Headscarf Ban OK’d By Euro Court

With most of the East Coast layered under a thick coat of snow and sleet today, we bring you news from across the pond: the BBC is reporting Europe’s high court has ruled that bans on wearing religious headscarves in the workplace are not necessarily a form of discrimination.

According to the report, workplace bans on the wearing of “any political, philosophical or religious sign” such as the Muslim practice of hijab need not constitute direct discrimination, European Court of Justice has ruled.

But the ban must be based on internal company rules requiring all employees to “dress neutrally” and cannot be based on the wishes of a customer, the court ruled.

This is the court’s first ruling on the wearing of headscarves at work, and it was prompted by the case of a receptionist fired for wearing a headscarf to work at a Belgium-based security firm.

Rights group Amnesty International said Tuesday’s ECJ rulings were “disappointing” and “opened a backdoor to . . . prejudice.”

Meanwhile, the Conference of Rabbis expressed worry about the ruling: “With the rise of racially motivated incidents and today’s decision, Europe is sending a clear message; its faith communities are no longer welcome.”

While the court’s ruling likely comes as a blow to religious freedom advocates as well as working Muslim women in Europe, it is unlikely to alter any American policy, which largely aligns with the ECJ ruling regarding “neutral” rules in the workplace.

This fact sheet from the American Civil Liberties Union, meanwhile, highlights some of the challenges hijab-practicing Muslim women face in the modern American workplace.

Lessons from the Sterling Scandal

With the salacious details of the Sterling Jewelers pay-discrimination lawsuit still sickeningly fresh in our minds, many of us have been asking how such behavior — as alleged by some of the 69,000 former employees involved in the suit– could happen at such a large company.

From security guards with overactive wands to district managers with overheated libidos, the sexual-misconduct accusations truly run the gamut of the perverse, according to court filings.

“But don’t they have programs in place to prevent this sort of behavior?” we wonder.

For its part, the company has denied any wrongdoing. On the matter of pay and promotion discrimination, the accusations are “not substantiated by the facts,” Signet Jewelers Limited, the parent of Sterling, said in a statement. In addition, Sterling said it found the claims of sexual misconduct to be without merit.

But today’s New York Times takes a look at some of the programs that may have unwittingly contributed to the harassing behavior being alleged by the suit plaintiffs:

…[L]awyers and academics who specialize in gender discrimination say the documents — more than 1,300 pages in total — provide a rare insight into how a company’s policies work in real life. Whether it is a not-so-confidential tip line or an in-house court, they say, some widely used corporate procedures can mask problems that women often face in the workplace. Here is a look at what the documents revealed.

The Times article looks at three employee-centric programs in particular: the company’s employee hotline, its arbitration policy and its “tap on the shoulder” promotion policy.

The entire article is well worth a read, if only to remind HR leaders that, just because you have a program in place to remedy a problem, that doesn’t mean it’s necessarily working. In fact, it could actually be covering up more issues than it is resolving, as Sterling is now learning the hard way.

 

 

 

 

 

Critical Uber Blogger Lawyers Up

Things just keep getting worse for Uber.

Various media outlets are reporting Susan Fowler, who wrote a scathing blog post about her alleged experiences with sexual harassment and stonewalling from Uber’s HR department — has lawyered up.

Susan Fowler, a former Uber engineer whose Feb. 19 essay detailed myriad examples of sexism, tweeted Thursday that “Uber names/blames me for account deletes, and has a different law firm – not Holders (sic) – investigating me.”

Fowler also said in her tweet that she has retained the employment law firm of Baker Curtis & Schwartz.

According to USA Today, on Feb. 24, Fowler tweeted that “research on the smear campaign has begun,” and she urged her friends not to provide personal information should they be contacted. She then added that she didn’t know “who is doing this or why.” At the time, Uber denied any knowledge of a smear campaign, and called such behavior “wrong.”

CEO Travis Kalanick and other execs then held long meetings with upset employees, and faced criticism from investors who blasted the company’s “toxic” environment and urged wholesale changes lest the company lose its way.

Kalanick addressed the issue directly in an emotional meeting with 100 female engineers.

“I want to root out the injustice. I want to get at the people who are making this place a bad place,” Kalanick said.

“I understand this is bigger than the Susan situation,” he said, adding that the topic was “a little bit emotional for me.”

Given the pervasive nature of Silicon Valley’s sexual-harassment problem, it’s not hard to imagine that almost every one of those 100 female engineers has a story similar to Fowler’s.

 

Uber’s Sex-Harassment Inquiry

In case you missed it over the long holiday weekend, there’s plenty of trouble brewing over at ride-share app Uber.

It’s now so serious that the company hired former U.S. Attorney General Eric Holder to investigate whether the company has appropriately addressed discrimination and harassment claims made by female workers.

The investigation comes after former Uber engineer Susan Fowler Rigetti posted her story on Sunday, detailing her experiences enduring sex harassment at the hands of her direct manager, as well as the stonewalling she says she was subjected to by the company’s HR and leadership after she repeatedly brought the claims to their attention.

According to Fowler Rigetti:

On my first official day rotating on the team, my new manager sent me a string of messages over company chat. He was in an open relationship, he said, and his girlfriend was having an easy time finding new partners but he wasn’t. He was trying to stay out of trouble at work, he said, but he couldn’t help getting in trouble, because he was looking for women to have sex with.

It was clear that he was trying to get me to have sex with him, and it was so clearly out of line that I immediately took screenshots of these chat messages and reported him to HR.

Uber was a pretty good-sized company at that time, and I had pretty standard expectations of how they would handle situations like this. I expected that I would report him to HR, they would handle the situation appropriately, and then life would go on – unfortunately, things played out quite a bit differently.

After receiving less-than-enthusiastic support from HR, she describes how she came to know other women at Uber who had experienced the same harassment and subsequent stonewalling, and how those women decided to use a strength-in-numbers approach to alert HR to the seriousness of the ongoing issue:

Myself and a few of the women who had reported him in the past decided to all schedule meetings with HR to insist that something be done. In my meeting, the rep I spoke with told me that he had never been reported before, he had only ever committed one offense (in his chats with me), and that none of the other women who they met with had anything bad to say about him, so no further action could or would be taken. It was such a blatant lie that there was really nothing I could do. There was nothing any of us could do. We all gave up on Uber HR and our managers after that. Eventually he “left” the company. I don’t know what he did that finally convinced them to fire him.

After the story initially broke, Uber CEO Travis Kalanick tweeted that the behavior mentioned in the post was “abhorrent & against everything we believe in. Anyone who behaves this way or thinks this is OK will be fired.”

Hiring someone like Eric Holder will definitely add credence to an investigation that had previously looked paper-thin. And while only time will tell if Holder uncovers any more stories like Fowler’s, I get the feeling this sordid story isn’t over by a long shot.

Office Romances Hit 10-Year High

In case you haven’t noticed all the heart-shaped sweet treats making the rounds today at work, it’s Valentine’s Day!

And, just in time for the annual event, a new report from CareerBuilder finds romantic relationships among co-workers “may be more common than you think.”

According to CareerBuilder’s annual Valentine’s Day survey, 41 percent of workers have dated a co-worker (up from 37 percent last year and the highest since 2007). Additionally, 30 percent of these office romances have led to marriage, on par with last year’s findings.

(The national survey was conducted online by Harris Poll on behalf of CareerBuilder from a representative sample of 3,411 full-time, private sector workers across industries and company sizes.)

Office romances are just not happening between peers, according to the report:

Of those who have had an office romance, more than 1 in 5 (29 percent, up from 23 percent last year) have dated someone in a higher position than them — a more common occurrence for women than men (33 percent versus 25 percent).

Fifteen percent of workers who have had an office romance say they have dated someone who was their boss.

And as if dating a superior weren’t risky enough, 19 percent of office romances involved at least one person who was married at the time.

As you might expect, keeping a workplace relationship out of the workplace is difficult. with nearly two in five workers who have had an office romance (38 percent) saying they had to keep the relationship a secret at work. Male workers were just as likely to keep their office romances secret (40 percent) compared to their female counterparts (37 percent).

By region, of those who have had office romances, 45 percent of workers in the Northeast say they kept their office relationships secret compared to 41 percent in the South, 34 percent in the West, and 31 percent in the Midwest.

On an admittedly rather ambiguous concluding note, the survey notes that, while 7 percent of workers say they currently work with someone they would like to date this year, 5 percent of workers who have had an office romance say they have left a job because of an office relationship gone sour.

 

 

‘Flexing’ to Close Gender Gap

Seventy percent of working mothers say having a flexible work schedule is extremely important to them, according to a Pew survey. (So do 48 percent of working fathers.)

To that end, a new job board is looking to leverage workplace flexibility to help close the gender gap, according to this new piece in the New York Times Upshot section:

A new job search company, Werk, is trying to address the [gender-gap] problem by negotiating for flexibility with employers before posting jobs, so employees don’t have to.

Facebook, Uber and Samsung are among the companies with job listings on the Werk site, in which all the positions listed “are highly skilled jobs that offer some sort of control over the time and place of work. People can apply to jobs that let them work away from the office all the time or some of the time, and at hours other than 9-to-5, part time or with minimal travel.”

Another option the site offers gives workers the freedom to adjust their schedules, no questions asked, because of unpredictable home and/or family obligations.

The story quotes Gerard Masci, founder and chief executive of Lowercase, a start-up eyeglass maker in Brooklyn, who just hired a vice president for communications on Werk. The company’s new hire works part-time and remotely, except for monthly in-person meetings.

“I don’t care if this week you work less if in a month you work more, and whether they work in the space or not is irrelevant,” Mr. Masci said. “All I care about is the productivity in the end.”

The full story is well worth a read for any HR leaders who are looking for ways to improve flexibility efforts without sacrificing productivity or quality talent.

 

LGBTQ Protections Spared — For Now

Given the combative tone of the first week of the Trump administration (at least as it related to Mexicans, Muslims and the media) it may have come as a surprise to some to learn President Trump will maintain workplace protections for gays and lesbians instituted during the Obama administration, according to multiple news reports.

“The executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact at the direction of President Donald J. Trump,” the administration said in a statement.

USA Today reported that gay rights groups had expressed concern that Trump would reverse that order, but White House aides said such a step has not been contemplated. Drafts of proposed orders to roll back the Obama order had circulated through Washington in recent days, which caused concern among LGBTQ activists and others.

The Washington Post’s coverage includes a statement from Chad Griffin, president of the Human Rights Campaign, in which he says he and other activists remained concerned that the new administration could still undermine other legal protections based on sexual orientation or gender identify:

“Claiming ally status for not overturning the progress of your predecessor is a rather low bar. LGBTQ refugees, immigrants, Muslims and women are scared today, and with good reason. Donald Trump has done nothing but undermine equality since he set foot in the White House,” Griffin said. “Donald Trump has left the key question unanswered — will he commit to opposing any executive actions that allow government employees, taxpayer-funded organizations or even companies to discriminate?”

The New York Times first reported the decision by the White House to stick with the Obama-era protections.

 

Philly Bans Salary Questions

Philadelphia, well known as this country’s Cradle of Liberty, may soon become known as a Grave of Salary Questions.

According to this Associated Press report, Philadelphia has joined other cities and municipalities that have banned employers from asking potential hires to provide their salary history, a move supporters say is a step toward closing the wage gap between men and women.

(The story notes that similar salary history bans have been introduced in New Jersey, and the city councils of New York City and Pittsburgh as well as the District of Columbia. In November, New York City stopped asking applicants for municipal jobs what they currently earn, and earlier this month Democratic New York Gov. Andrew Cuomo signed an executive order banning state entities from asking about pay history. Democrat Eleanor Holmes Norton, the District of Columbia’s delegate to Congress, has sponsored similar legislation in Congress.)

Mayor Jim Kenney (Democrat) signed the measure on Monday, and said he’s confident the bill can withstand legal challenges, likely led by Philadelphia-based Comcast.

“I know that Comcast and the business community are committed to ending wage discrimination, and I’m hopeful that moving forward we can have a better partnership on this and other issues of concern to business owners and their employees,” he said. “This doesn’t need to be an either/or argument — what is good for the people of Philadelphia is good for business, too.”

However, the report notes, Comcast and the Chamber of Commerce see the bill as yet another roadblock to Philadelphia-based businesses:

“The wage equity ordinance as written is an overly broad impediment to businesses seeking to grow their workforce in the City of Philadelphia,” Rob Wonderling, president and CEO of the Philadelphia Chamber of Commerce, wrote in an opinion piece to a city business journal this month, adding it “infringes upon an employer’s ability to gain important information during the hiring process.”

Comcast had urged the mayor to veto the bill or face legal challenges, according to a legal memo obtained by The Philadelphia Inquirer earlier this month. The memo said the law would violate employers’ First Amendment rights to ask potential hires about their salary history.

Comcast referred questions to the Chamber of Commerce for AP’s story.

 

 

Your Job’s ‘Automation Potential’

In case you’ve ever laid awake at night and wondered about the question in this post’s headline, fear not: the McKinsey Global Institute recently released an interactive graphic that shows how much potential specific jobs have for becoming automated in the future.

McKinsey analyzed the detailed work activities of more than 750 jobs in the United States to “estimate the percentage of time that could be automated by adapting currently demonstrated technology.”

According to Fast Company’s take on the McKinsey, graphic, “filling machine operators, dredge operators, medical appliance technicians, graders of agricultural products, sewing machine operators are all 100% automatable, according to McKinsey.

“Also highly automatable are butchers and meat cutters, bakers, bus mechanics and laundry workers. Security guard jobs are 40% automatable (note, this is already happening). And computer system analysts are only 28% automatable. Amongst the least automatable jobs, according to the analysis, are those in PR, legal services, accountancy, and grounds-keeping.”

For those of you wondering just how “automatable” HR jobs are, the graphic illustrates that HR assistants (with the exception of payroll and timekeeping) are 51 percent automatable, while HR specialists are 22 percent automatable and HR managers are 14 percent automatable.