Posts belonging to Category employee policies

Had an interesting chat recently with Ron Chapman — Dallas-based labor and employment attorney with Ogletree, Deakins, Nash, Smoak & Stewart, and outside counsel for D.R. Horton Inc.

Horton, a Fort Worth, Texas-based homebuilder, is appealing the National Labor Relations Board’s January 2012 ruling that its individual-arbitration mandate every employee was required to sign, waiving their rights to class action, violated Section 7 of the National Labor Relations Act protecting employees’ rights to take such action to improve their working conditions.

Chapman had argued before the Fifth Circuit Court of Appeals in Horton’s behalf on Feb. 5 and said the hearing “went well.” (Here is a link to recordings of all the oral arguments presented in that case that day. Scroll down; you’ll find it. Here, too, is a piece that ran recently in the Dallas Business Journal offering some additional background.) Chapman expects the court to rule within 60 to 90 days.

What was especially interesting, Chapman told me, was the follow-up he received from the court three days after the argument. The court, he said, was directing both sides’ attorneys to draft additional briefs arguing whether they think the constitutionality of the NLRB board make-up at the time of its decision needs to be addressed before a ruling can be made. (As you’ll recall, in its recent decision in Noel Canning v. the National Labor Relations Board, a panel of the U.S. Court of Appeals for the D.C. Circuit invalidated the recess appointments of three members of the NLRB because, the court found, the U.S. Senate was not in recess at the time President Barack Obama made the appointments.)

For reference, here is an HREOnline^™ blog post by Web Editor Mike O’Brien about that appeals-court ruling declaring Obama violated the Constitution when he bypassed the Senate to fill the NLRB vacancies. Here, too, is a Q&A O’Brien conducted with Joel S. Barras of Reed Smith on the ramifications and implications of that ruling.

Interestingly, this is the first case I’ve come across in which attorneys for both sides are being asked for their opinions as to whether a ruling can go forward or not without first addressing the constitutionality of the NLRB make-up in question.

Obviously, if Chapman and his counterpart both rule the appeals court’s decision should proceed without any bearing from the Canning case, then it will proceed. But, as Chapman told me, “if we both were to say it should not proceed until the constitutionality issue is addressed, then the board would not decide this case at this time.”

If you consider Barras’ description of such scenarios and multiply them out to all the cases decided by the NLRB with the Obama appointees, it could get messy:

It is important to note that, even if [regional] cases are invalid and the NLRB members lack the authority to take direct action, many of the board’s processes will continue. The various NLRB regions will continue to investigate unfair labor practice charges, issue complaints and try cases. Administrative law judges will continue to issue decisions and find violations of the Act.

The losing party, however, will likely appeal the decision to the board, which will effectively stay the [administrative law judge's] decision. That case will then be left in limbo until a quorum is properly appointed and rules on the decision, which would likely be delayed given the tremendous backlog of cases. In some limited instances, the board’s general counsel may seek injunctive relief in federal court to force a losing party who has appealed the decision to comply with the [administrative law judge’s] order, pending the NLRB’s eventual decision.

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Calling himself @theoldcfo on Twitter, Gene Morphis got done in by his use of new media — Twitter and Facebook, in particular.

Morphis, who was CFO of Francesca’s Holding Corp., made the mistake of posting inappropriate information about company doings, according to the Wall Street Journal:

On March 6, for instance, he tweeted: “Dinner w/Board tonite. Used to be fun. Now one must be on guard every second.” The following day, he posted “Board meeting. Good numbers=Happy Board.”

On March 13 Mr. Morphis posted on Facebook about a company earnings call: “Earnings released. Conference call completed. How do you like me now Mr. Shorty?”

Months earlier, on Dec. 5, he posted about another investor call. “Cramming for earnings call like a final. I thought I had outgrown that…”

Mr. Morphis also posted about an investor road show on Jan. 27: “Roadshow completed. Sold $275 million of secondary shares. Earned my pay this week.” (The retailer held an initial public offering last July.)

The company said it launched an internal investigation with the assistance of outside counsel after discovering the activity on Friday afternoon. The company said Mr. Morphis was “terminated for cause.”

Francesca’s did have a social-media policy, according to the article, but creating a workable policy is no easy task in this ever-changing social-media world.

We recently ran an article on HREOnline™ that addresses the “Legal Ambiguities of Social Media,” by Seyfarth Shaw attorneys Jeffrey Berman and Erin Dougherty Foley. It’s definitely worth a read.

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In the highly watched case of Brinker Restaurant Corp. v. Superior Court of San Diego County, the Supreme Court of California handed down its decision (PDF) this afternoon, ruling — bottom line — that employers must provide meal breaks, but don’t have to force their workers to take them:

On the most contentious of these, the nature of an employer’s duty to provide meal periods, we conclude an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.

Steven Katz, an employment attorney with Reed Smith, says the opinion is “a clear victory for common sense.”

In deciding that California law requires employers to give employees the opportunity to take a meal break, but does not force employees to take a meal break that they do not want to take, the Court declared the law to be precisely what employees and employers have always thought: it is the employee’s choice to take a meal break, not something forced on employees by the government. Employers no longer have to say “no” to employees who prefer, for example, to work through lunch and leave early to attend their child’s school play.

He says it frees employers from “the specter of frivolous lawsuits,” and is “truly a win-win for employees and employers. The only clear losers today are the lawyers who make money off of waging class-action lawsuits.”

Sarah Goldstein, an employment partner at Kaufman Dolowich Voluck & Gonzo, notes there are other issues reviewed by the court and that there “will very likely still be some growing pains as the courts deal with various scenarios, implementation strategies and hiccups in the aftermath of Brinker. ”

Employers should plan how they will train managers, employees and payroll staff, so that policies are ready to roll out when the decision is ultimately rendered. Also, as employers begin to conduct year-end policy and practice reviews for 2012 updates, they should review existing meal and rest period policies and practices and begin to consider what changes, if any, will need to be made pending the possible outcomes of this decision.

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Gallup has just announced the winners of its 2012 Great Workplace Awards.  Twenty-seven companies were named to this year’s list, including three companies that have made the list for a record six consecutive times. The award is based on multiple criteria, according to Gallup, including overall engagement levels and evidence of the impact of high engagement levels on important business metrics. Gallup says it compares the applicants’ results against its database of millions of work teams in approximately 170 countries. A panel of experts chosen by Gallup reviews each organization’s portfolio, which consist of “quantitative and qualitative components.”

Rather than list all 27 winners, I thought I’d just highlight the organizations that have won the award multiple times, beginning with the six-time winners:

ABC Supply Co., Inc. (six-time winner)

Hendrick Health System (six-time winner)

Winegardner & Hammons, Inc. (six-time winner)

Stryker (five-time winner)

Adventist Health System (two-time winner)

Atlantica Hotels International (four-time winner)

Central Retail Corporation Ltd. (two-time winner)

Indian Hotels Company Limited (three-time winner)

Intermountain Healthcare (two-time winner)

Mars, Incorporated (three-time winner)

MemorialCare Health System (two-time winner)

Self Regional Healthcare (five-time winner)

Siam Commercial Bank (four-time winner)

Standard Chartered Bank (two-time winner)

The PNC Financial Services Group (four-time winner)

Transitions Optical, Inc. (three-time winner)

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Correction added:

The Equal Employment Opportunity Commission recently released its 2012-2016 Strategic Plan and many management attorneys say it’s cause for some real concern. Of course, these folks are paid big bucks to, in part, be concerned about anything coming out of the EEOC. Nevertheless, considering that this particular document offers a roadmap as to where the EEOC plans to focus its resources during the next four years, HR leaders should definitely be paying attention.

Christopher DeGroff, cochair of Seyfarth Shaw’s complex discrimination litigation practice group, says the latest Plan would, among other things, combine the EEOC’s investigation and litigation arms, a move he says would result in an “integrated, holistic approach to enforcement from beginning to end, without separating the investigation and conciliation stage of the EEOC’s work from its litigation stage.” CORRECTION: The original post suggested this quote was from the EEOC’s actual Plan. The quote is actually from DeGroff himself. The EEOC’s 2012-2016 Strategic Plan does not explicitly say anything about removing any boundaries between the investigation/conciliation and litigation stages. By doing this, the agency will essentially be erasing whatever line once existed between the two, with the result that investigations will now most likely serve as “launching pads for future litigation,” DeGroff told me in a recent interview. This flies in the face of what the EEOC was originally intended to do, he said, which was to “allow employers to look at policies and issues [that may be discriminatory] and informally resolve them before litigation.”

Another element of the Plan that concerns DeGroff is its emphasis on combatting systemic discrimination. In particular, the plan notes that the EEOC will “establish target percentages that will increase year over year to ensure that a [to-be-determined percentage] of the agency’s litigation docket are systemic cases” by the end of 2016. This is essentially establishing a quota for litigating systemic discrimination cases, according to DeGroff, and the results could be profound. “Cases of alleged systemic discrimination are very high stakes, they can sometimes be nationwide, they’re very expensive for employers, and I would not want to see the EEOC bringing these types of cases to meet some sort of internal metric,” he said. (You can read more from DeGroff and his colleagues about the EEOC and other legal matters here.)

I’m waiting to get the EEOC’s response to these and other concerns raised by DeGroff and other attorneys for a story I’m writing that will appear on our website shortly.

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Panelists at the 3rd Annual Cornell University Executive Summit took up the issues of “changing demographics” and “social media and HR” — the two topics selected from a list of 12 by attendees at the HR in Hospitality™ Conference for a wide-ranging discussion.

There were lots of opinions by the group of 11 HR leaders and attorneys on the panel about the use of social media for recruiting, engagement, training, screening, to reconnect with alumni, you name it.

There was little controversy about its use for recruiting; using it for screening candidates was another story.

A.J. Kamra, corporate director of HR at Dow Hotel Co., said he questioned the judgment of candidates who posted inappropriate information that was visible to him – and he wouldn’t want to hire them.

Some others, including Alan Momeyer, VP of HR at Loews Corp., said they had better things to do than “trolling the Internet” looking for such information. “What is extremely offensive about someone in their 20s having a drink?” he asked.

Even when you’re not looking for information, however, you can sometimes find it — such as discovering from a Facebook status that a supervisor is dating a subordinate — but many of the panelists said HR professionals should forget about the medium. Just treat the matter the same as if they had learned the information otherwise, they said.

“Technology is just the means that exposes and creates that conversation. … It could easily happen over email or any other form,” said Robert Mellwig, senior vice president of human resources at Destination Hotels & Resorts.

As for social media policies, two attorney panelists — Paul Wagner, a shareholder at Shea Stokes Roberts & Wagner, and Gregg Gilman, a partner at Davis & Gilbert – disagreed on whether such policies should include any reference to the right of employees to criticize the company via the Internet, per recent National Labor Relations Board rulings.

Wagner thought HR should include a provision that requires such criticism to be “done respectfully.” Gilman disagreed, saying “respectfully” was too “ambiguous” a term, and that “at the end of the day … [the issue will devolve to] ‘did the employee go over the line?’ ”

Patricia Smith, senior VP of organizational design and HR at The Leading Hotels of the World, said HR should not take an “unempowered approach,” which results in being reactive instead of proactive in regard to social media.

“It’s here. It’s going to happen. It’s happening. Why not take an empowered approach?” she said.

Greg Smith, executive vice president of HR at Denihan Hospitality Group, agreed: “If you don’t embrace it, you risk losing your competitive edge.”

When talking about the changing demographics of the workforce, the discussion focused on the diverse needs of all ages, from Gen Yers beginning their work careers and those pre-retirement workers who can’t afford to retire, to mid-career employees who don’t want to uproot their families and relocate to continue their career progressions.

Mellwig said his organization has explored a “teacher pay model,” in one area that needs seasonal managers, so they are paid for nine months of work instead of 12 months. The flexibility suits the managers as well as the organization, he said.

Debbie Brown, VP of HR for the Americas at Four Seasons, said there are 11 moves generally required before an individual is made a general manager, but her organization has been looking at a “compressed career path,” which would require only four, providing for some of the progressions to take place without a relocation.

Several of the HR leaders spoke about the need to customize jobs, as well as the need to forget generational stereotypes — and focus on the individual and his or her career aspirations and abilities.

“We sometimes typecast our team members” said Momeyer, “… and we don’t look at them as individual talents … .”

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How many of you are parents, or know parents, who leave way too much up in the air when it comes to disciplining or setting boundaries for children?

You know the routine: “Absolutely no candy. And no means no.” “OK, just one but that’s it.” “OK, two, but no more. That’s final.” “Oh all right, three but you can’t eat the third one now. You have to wait till after dinner.” “OK, you can have it after lunch, but that’s the absolute last of this conversation.”

Nothing absolute about it, right? And haven’t we all been there at least once – either watching this scenario or, God forbid, participating in it – and either witnessed or experienced the crecsendo of bad behavior and ever-louder protests from the darling angels as more options are added to these nebulous commands?

Well, two behavioral scientists and professors at Duke University have just come out with new research that they say not only explains this crescendo of protests when the removal of rights or privileges leaves room for second-guessing, but can be translated to the workplace as well. (Oh, it also correlates to the current political unrest in the Middle East, but I’ll stick to the workplace.)

“Reactance Versus Rationalization: Divergent Responses to Policies That Constrain Freedom,” to be published in the February edition of Psychological Science, looks at how people react differently to restrictions on rights when those restrictions are communicated either as absolutes or as issues with even a sliver of “wiggle room.”

(One scenario in the study invloves a lowering of speed limits in which some study participants were told the limits were definitely coming and the other group was told they would take effect only if government officials voted to enact them.) In essence, those getting absolutes rationalized and accepted them more, whereas those in the non-absolute group reacted vehemently against them.

The methodology and metrics are in the study itself, which is available here, but does require a subscription to Psychological Science. Here is the full release from Duke that explains a good bit more than I can in a blog post.

I spoke to Gavan Fitzsimons, co-author of the study and a professor of marketing and psychology at the Fuqua School of Business at Duke, and asked him to put this in workplace terms. “Say a manager wants to impose a restriction on personal-computer use in the office,” he says. “You could say you’ve consulted with folks and you’ve come to a decision and there will be a monitoring device that will ensure absolute follow-through. Or you could say, ‘We’re going to put this policy in place and we’ll revisit it in a month to get your perspective or response.’

“If you go with the former,” he says, “people will actually generate rationalizations and explanations for why this is necessary and important, but when there’s a peak of a window of a chance it could be reversed, people will react in a totally different way: ‘That’s the stupidest thing in the world!’ ”

What’s it all mean for employers? At a time when there’s much discussion about engaging employees and making sure they know they have an integral role in the business and sometimes even a voice in the decision-making process, “be real careful how you communicate it,” Fitzsimons says.

“If your goal is to have a happy workforce,” he says, “what we would argue based on these findings is that, in many ways, it’s more productive to use these absolute restrictions. Employees will actually generate reasons why the limit or restriction is good. They’ll actually generate justifications and be happier.

“If you manage this poorly and don’t provide the absolute,” he adds, “they’ll be unhappy, with high anxiety, high arousal and aggression [might I add high decibels], and you won’t have a productive workforce. It’s like disciplining children. They need that wall, that absolute ‘No’ in order to thrive.”

Go figure.

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The law on what you can and can’t tell employees about what they can and can’t say on Facebook, Twitter and any other social-media platform is evolving, to say the least.

And if you didn’t see or hear anything about the National Labor Relations Board’s second report on social-media cases, issued late last month, consider this your red flag. Better keep up with these reports. Each one has a certain nuance and emphasis.

Just six months after issuing his first report (here is my post detailing that one), NLRB Acting General Counsel Lafe Solomon has put out his Operations Management Memo (the PDF of this is contained in my link above), which covers 14 cases, “half of which involve questions about employer social-media policies. Five of those policies were found to be unlawfully broad, one was lawful and one was found to be lawful after it was revised,” a statement from the NLRB reads.

The remaining cases involved discharges of employees after they posted comments to Facebook, several of which were found to be unlawful because they flowed from unlawful policies and one which was upheld despite an unlawful policy because the employee’s posting was not work-related.

The latest report underscores two main points made in the first report: 1) “Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees,” and 2) “An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees,” it states.

“Given the new and evolving nature of social-media cases, [Solomon] has asked all regional offices to send cases [they] believe to be meritorious to the agency’s Division of Advice … in the interest of tracking them and devising a consistent approach.”

Employment lawyers, meanwhile, are quick to point out that the board’s social-media rules — and potential liabilities — for employers are, indeed, changes from prior guidances on employee communication.

“These standards are not the same as for talk around the workplace water cooler,” says Doreen Davis, co-chair of the traditional labor practice at Philadelphia-based Morgan, Lewis & Bockius. “Especially if posts are made from home, not work, and during non-work hours, the NLRB considers that they pose much less chance of disrupting the workplace.

“As a result,” she says, “the labor board is going to allow for much more leeway by employees to post negative comments about the employer, and the employer may not be able to lawfully discipline for the posts, regardless of its Internet policy.”

Ballard Spahr, also based in Philadelphia, released this caution to employers: “In sum, the board remains highly critical of most broadly worded policies seeking to regulate online comments that disparage employers, supervisors or co-workers, but recognizes that employee postings not clearly part of, or looking toward, group action are unprotected and the proper subject for discipline.”

So, basically, there’s good news and bad news. Individual griping, not involving the sharing of common employee concerns, does not equal a National Labor Relations Act-sanctioned protected activity.

On the other hand, Ballard Spahr’s release says, “the board continues to view as impermissibly overbroad policies that generally prohibit ‘disparaging’ or ‘inappropriate’ comments, ‘disrespectful’ conduct, or the disclosure of ‘sensitive’ or ‘confidential’ matters. The inclusion of a ‘disclaimer’ or ‘savings clause,’ which pledges that the employer will not enforce its policy in violation of law, is insufficent to rescue an otherwise overbroad rule.”

Social media under the NLRA, it says, “remains an emerging area of the law and employers must tread carefully when drafting workplace policies that address employee participation in Facebook, Twitter and other online forums. Because the NLRA protects the right to take action for ‘mutual aid and protection’ in both union and non-union workplaces, the NLRB’s ongoing social-media analysis will have a far-reaching impact on workplaces across the nation.”

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There are so many thoughts and feelings swirling in me as mourners gather for Joe Paterno’s funeral in State College, Pa., today. One is my wish that I could be there with my son, a recent main campus mechanical engineering graduate. It just wasn’t realistic, considering both our jobs. (He’s now an engineer for a Philadelphia firm – a job I am enormously proud of, for him; a job I am — and I’m sure he is – eternally grateful to Penn State University for.)

I’m also thinking of the culture I knew as a visiting parent, the tugs at my heart looking at a picture like this one, of the Old Main building, thinking of the many trips my son must have taken up and down those steps. No doubt the trips Joe Pa must have taken, too, in his 62 years there.

I’m thinking of the family weekends we attended at my son’s fraternity, the spirit and enthusiasm in the air about promising futures and convictions and pride, the life-size cutout of Joe Pa I remember standing alongside us on at least one of those occasions.

My heart aches for every one of those graduates, every one of their parents, every one of those victims at the heart of the scandal now hanging over the campus, every member of the Paterno family and even every trustee who had to wrestle with whether he or she would or should attend today’s ceremony.

Did Paterno’s firing hasten his death? Probably. Was his termination handled the way it should have been? I don’t believe it was. Was Paterno blameless in all this? Of course not. Erring through omission, not commission, is erring nonetheless.

But I hope, for Penn State’s sake, that the already-controversial investigation now under way into how the crisis was handled takes a long, hard look at the culture Paterno was part of and the system he said he was trying to protect by handing the information over to his next-in-charge. Merrie Spaeth, head of Spaeth Communications Inc., recently addressed the importance of PSU’s culture in this piece written after the scandal erupted. In it, she offers some lessons learned that every organization should take to heart from this tragedy — not the simple ones, like having tighter policies for child-abuse or sexual-harassment reporting in place, but the much deeper ones, like, “What are the unspoken barriers or constraints that affect how we process information and how we act?”

I hope investigators will consider the thinking of someone like behavioral-science expert Darnell Lattal, who talks in this piece about the much-bigger factors than one man’s omission or commission when an organization goes through an ethical breakdown the size and scope of Penn State’s. ”Decisions are [often] determined by a phenomenon that Hal R. Arkes and Catherine Blumer call the ‘sunk cost effect,’ “ Darnell writes, “meaning that people are often more influenced by what they have already invested than by factors that should determine the appropriate action.” I think we can all agree there was an element of that going on when certain people chose to go only so far, or to not go at all.

Clearly, Penn State will never be the same. Songwriter Don Henley’s “The End of the Innocence” keeps playing in my head. I just hope, and pray, that the entire world that is Penn State — investigators, new leaders and all — can tread carefully and objectively into this next chapter with a vision for a Happier Valley that doesn’t kill the spirit and the legend and the pride any more than those three entities have already been killed.

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If you think you have it tough balancing the demands of child care, housekeeping and–maybe–night classes with a 9-to-5 office job, then try working in retail. A recently published study based on interviews with 463 employees at retail stores throughout New York City found that more than half learned their work schedules a week or less prior to the actual work week. Two in five said the number of hours they worked each week always or often varied, while one in five said they always or often had to be available for call-in shifts. The report, entitled “Discounted Jobs: How Retailers Sell Workers Short,” notes that “guaranteed work hours are no longer the normal and just ‘getting on the schedule’ has become the reward for job performance.”

So just imagine dealing with such unpredictability while trying to attend classes and/or raise a family. It should be noted that this study was financed by the Retail Action Project, a pro-union organization, and conducted by the City University of New York’s Murphy Institute, which also appears to have a union affiliation. Yet the rise of “just-in-time” scheduling at many stores, further enabled by technology, has been noted elsewhere for the negative effect it can have on workers’ lives.  A team of researchers from the University of Chicago examined workforce data and surveyed workers and managers at a nationwide women’s apparel chain (with the company’s full cooperation).  The report, published in fall 2010, noted that just-in-time scheduling makes it difficult for workers to count on reliable earnings or plan for family responsibilities.

By comparison, the researchers discovered that the more hours employees at the apparel chain worked and the less their hours fluctuated, the longer they remained employed at the firm, regardless of age and job status. Stores with smaller staff size and more hours per employee have lower turnover and higher retention, the report found, while employee survey findings indicate that more-predictable work schedules led to less work/family conflict and lower stress levels for the workers. Sounds like a recipe for improved workforce health and greater productivity, no?

Of course, retail by its very nature is less predictable than other industries. Yet the researchers found that “overall store hours fluctuate much less than is commonly believed.” They suggest that managers can add some stability to employees’ work hours by using “predictable unpredictability”–keeping employees’ work hours the same for 80 percent of the week while telling them to expect that 20 percent of their hours may vary week to week.” Not a perfect solution, but one that may enable stores to remain profitable while giving employees a chance for some balance.

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